Ganga Nath, J.
1. This is a defendants appeal and arises out of a suit brought against them by the plaintiffs, respondents for possession over the fixed rate tenancy described in the plaint and Rs. 90 for mesne profits for three years. The tenancy in dispute belonged to Sital Dube. On his death it was succeeded to by his widow Mt. Phulbasi. She died in August 1933. Mt. Phulbasi and her daughter mortgaged the tenancy to Bhawani Palat and subsequently sold the same to him on 7th January 1901. Bhawani Palat gifted the same to the defendants in 1925. The plaintiffs claimed the tenancy in dispute as reversioners of Sital Dube. The defendants contended that the plaintiffs were not the nearest reversioners of Sital Dube and that the transfer had been made for legal necessity. The trial Court found that the plaintiffs were not the reversioners and dismissed the suit. It also found that there was no legal necessity for the sale deed. Sampat Dube, one of the plaintiffs, went up in appeal. The lower Appellate Court found that the plain-tiffs were the reversioners and decreed the suit. It may be mentioned hare that both the plaintiffs claimed the property in equal shares as being reversioners of equal degree. No appeal was filed by Nand Gopal Dube. The lower Court decreed the suit in his favour also.
2. It has been urged on behalf of the defendants-appellants that the Civil Court had no jurisdiction as the suit fell under Section 99, Tenancy Act. Section 99, Tenancy Act has no retrospective effect. The cause of action arose in August 1926. The suit was, therefore, cognizable by the Civil Court. The finding of the lower Appellate Court as regards the reversionership of the plaintiffs was challenged by the appellants on the ground that the finding was based on speculation. The word 'speculation' has no doubt been used by the lower Court but in a wrong sense. While discussing and rejecting the evidence of Chian as to whether Sital predeceased his father, the learned Judge observed:
In short he is not also in a position to Bay definitely about this point. The result is that the Court is left to its own speculations on the question which of the two, father and son, predeceased the other. Hence I will deal now with the circumstantial evidence.
3. The learned Judge thereafter considered the circumstantial evidence and recorded a finding to the effect that Sital died after his father. The finding is not based on mere speculation but is based on inferences which the learned Judge drew from the oral and documentary evidence and certain other facts before him. The finding cannot therefore be called merely speculative. The finding of the learned Judge being one of fact and based on evidence is conclusive and final. As stated above, out of the two plaintiffs only one appealed to the lower Court. No appeal was filed by Nand Gopal Dube. The lower Court has decreed the suit in his favour also. The appeal had been filed by Sampat Dube in respect of the whole suit. Nand Gopal Dube was impleaded as a respondent. It was contended on behalf of the appellants that the lower Court could not decree the suit in favour of Nand Gopal Dube as the decree against him had become final. Reliance was placed on Rangam Lal v. Jhandu (1911) 34 All. 32. This case relates to Order 41, Rule 33. There the plaintiff sued the defendant for rent of a holding and claimed Rs. 294-7-0 and the defendant pleaded that the claims had been discharged, but the Assistant Collector gave the plaintiff a decree for Rs. 96-11-11. The plaintiff appealed against the decree in so far as it dismissed a part of the claim. The defendant submitted to the decree. He neither filed a cross-appeal nor objections as provided by Order 41, Rule 22, Civil P.C., On appeal by the plaintiff in respect of the portion of the claim which had been dismissed, certain issues were remitted by the District Judge to the trial Court. The District Judge on return of the findings on the issues remitted by him to the Assistant Collector dismissed the claim of the plaintiff in toto. It was held by the Full Bench that the dismissal by the Judge of the plaintiff's suit in its entirety was not a proper exercise by him of the powers conferred by Order 41, Rule. 33. If the defendant was aggrieved by the decree against him for Rs. 96, there was no reason why he should not have appealed or filed objections.
4. This matter was argued before me on 18th November 1936 when I remitted two issues for findings to the lower Court. At that time I was of the opinion that the ruling applied to the present case but now I find that the case does not come under Order 41, Rule 33, but comes under Order 41, Rule 4, and it does not apply. There is a distinction between Order 41, Rule 4 and Order 41, Rule 33. Rule 33 applies to a case where the appeal is as to a part only of the decree, while Rule 4 applies to a case where the appeal is from the whole decree. The Full Bench case referred to above applies to Order 41, Rule 33 and not to Order 41, Rule 4. Order 41; Rule 4 is based on two considerations: firstly to give the Appellate Court full power to do justice to all parties whether before it or not, and secondly to prevent contradictory decisions in the matter in the same suit. In order to apply Rule 4 it is essential that the decree appealed from should have proceeded on a ground common to all the plaintiffs or defendants and the whole case is gone into in the Appellate Court at the instance of the parties representing 'all the necessary contentions in the case.
5. It is therefore necessary to see whether the decree has proceeded on any ground common to all the plaintiffs. The case of both the plaintiffs was that they were reversioners of equal degree and had descended from one common ancestor Dassu Dube. The property in dispute belonged to Sital. According to the plaintiffs Dassu Duba had four sons, Nihal, Jai Earn, Bhawani and Ham Parshan. Nihal's son was Manog and Manog's Sital. Nand Gopal and Sampat are the great-grandsons of Ram Parshan. The pedigree set up by the plaintiffs as to their being the descendants of Dassu Dube was not challenged at all by the defendants. The defendants' contention was that Sital was the son of Manog but Manog was not a descendant of Dassu. According to defendants Manog was son of Mansha. The other contention between the parties was as to whether Sital had died during the lifetime of his father Manog. These two points were common to both the plaintiffs. The finding of the lower Court on both these points is in favour of the plaintiff-respondents. As stated above, the appeal is from the whole decree. The decree of the trial Court proceeded on grounds common to both the plaintiffs. Consequently Order 41, Rule 4 applies with full force to the present case and the lower Appellate Court was fully entitled to pass a decree in favour of both the plaintiffs under the provisions of this section, although one of them, i.e., Nand Gopal, had not filed an appeal but had been impleaded as a respondent. There is therefore no defect in the decree passed by the lower Appellate Court in favour of both the plaintiffs. The following two issues were remitted to the lower Court for findings:
(1) Whether the usufructuary mortgage and the sale made in favour of Sital Dube were for legal necessity; and (2) to what mesne profits is Bam-pat Dube entitled in respeot of his half share
6. The lower Court's finding on the first point is that the mortgage and the sale were not for legal necessity. The finding on the second point is that Sampat Dube is entitled to Rs. 22 mesne profits Both these points are of facts and the findings of the lower Court on them are conclusive. The share of Nand Gopal being equal to that of Sampat Dube, Nand Gopal is also entitled to Rs. 22 mesne profits for his share. The lower Court had remanded the case to the trial Court for determining the mesne profits. The present appeal was against the order of the lower Court remanding the case for the trial of the question of mesne profits. There is now no need to remand the case to the trial Court for the decision of the amount of mesne profits. It is therefore ordered that the appeal be partly allowed and the order of remand be set aside. The decree of the lower Court is amended only so far that both the plaintiffs' suit for Rs. 44 for mesne profits will also be decreed with proportionate costs. The respondents will get their costs of this Court from the defendants, appellants. The appellants will bear their own costs in this Court. Permission for Letters Patent appeal is granted.