1. This appeal must be allowed and the case sent back to the Court below for disposal according to law.
2. It appears that the plaintiff, who is the zamindar, brought the suit, out of which this appeal has arisen for recovery of a certain amount of money as a fair rent on the allegation that the three defendants, who were brothers and who were tenants of the plaintiff in respect of other plots of land, had in collusion with the patwari, taken possession of land which had never been leased out to them.
3. The suit succeeded in part in the Court of first instance. During pendency of the suit in the Court of first instance one of the defendants, Khan Chand, died. To start with, his widow was brought on the record as his representative. Subsequently the widow gave birth to a posthumous son, who was named Padam Singh and later on he was brought on the record. Although Padam Singh had been made party in the Court of first instance the decree omitted to describe Padam Singh as one of the defendants and described the mother, Mt. Surja, as one of the defendants. In filing his appeal the plaintiff overlooked the fact that the decree was wrong, and evidently the counsel for the plaintiff not suspecting anything wrong, drew up the memorandum of appeal in terms of the decree, so far as the parties were concerned. In the appellate Court, long after the period for appeal had expired, it was discovered that instead of Padam Singh his mother was a party. The plaintiff asked for amendment of memorandum of appeal and for extension of the period of limitation, under Section 5, Lim. Act, so that the appeal against Padam Singh might be treated as filed within time. The learned Judge could not find his way to accept this prayer, with the result that the appeal against Padam Singh stood dismissed, as barred by limitation. The learned Judge then had to try whether he should allow the appeal to proceed against the other two defendants-respondents. He came to the conclusion that the liability of the three original defendants was joint, and he could not hear the case against two of the original defendants alone.
4. In this Court it is contended that this view of the learned Judge was not right.
5. It has been held that the liability of tenants for the payment of the rent of any holding, is joint and several: see Abdul Aziz v. Basdev Singh  34 All. 604 which was followed in Parbhu Dayal v. Tirbhuwan Singh : AIR1925All425 . The present case is really much stronger than the case of tenants. The three original defendants were in the position of trespassers and there is nothing in the language of Section 34, N.W.P. Tenancy Act, 1901 to preclude any one of several persons, occupying land without the permission of the landlord, from being sued for paying the compensation of fair rent. I am not prepared to call in question the exercise of the descretion of the lower appellate Court as to the application of Section 5, Lim. Act. The result, therefore, is that the appeal as it stood before the lower appellate Court, should be re-heard, so far as the respondents Khubi and Tika are concerned. I allow the appeal, set aside the decree of the Court below and remand the appeal to it with a direction to proceed with the hearing in accordance with law. The respondents Khubi and Tika alone will pay the costs of the plaintiff-appellant. As the appellant had no justification for making Mt. Surja a party to this appeal he will pay her costs which will be assessed at one-third of the total costs incurred by the defendants-respondents.