1. This is a defendants' appeal arising out of a suit for possession and injunction brought by the plaintiff's against four defendants treating them as trespassers. The plaintiff's case was that the land in question was their graveyard and the defendants wrongfully enclosed it. The defence was that the land was not a graveyard at all, but was a waste piece of ground which had been enclosed by the defendants with the permission of the zamindar and that the enclosure was an old one. The first Court found the facts in favour of the plaintiffs and decreed the claim against all the four defendants. Two of the four defendants appealed to the lower appellate Court and impleaded the other two defendants as pro forma respondents. No doubt the ground taken in the memorandum of appeal was one common to all the defendants, namely, that the plaintiffs had no right to maintain the suit as they had no interest in the land. The lower appellate Court allowed the appeal holding that the plaintiffs had to establish dedication or public user and had therefore no right to get the enclosure demolished and then remarked:
The result is that the decree of the lower Court cannot stand. I set aside the decree of the Court below and dismiss the suit. The defendants will get their costs from the plaintiffs in the both Courts.
2. The decree of the lower appellate Court was in the same terms. The plaintiffs appealed to this High Court and a learned Judge of this Court sent down an issue for a clear finding as to the length of the time during which the enclosure had been in existence. The finding that was returned was in favour of the plaintiffs but it appeared that one of the original defendants, namely Niadar, who had not appealed to the lower appellate Court and who was made a pro forma respondent in that Court, died and a belated attempt to bring his heirs on the record in the High Court failed. The learned Judge accordingly held that the appeal abated as against the deceased Niadar, but he decreed the appeal against the other three defendants. It is not necessary to consider whether the lower appellate Court in fact set aside the decree of the first Court and dismissed the suit as against all the defendants giving them all costs of the suit or whether it only set aside the decree and dismissed the suit as against the appellants. Before the learned Judge of the Court it was assumed that the decree was in favour of all the defendants. The lower appellate Court had certainly power to pass a decree in favour of all the defendants, but at the same time it was not bound to do so.
3. The only question therefore, that arises in appeal is whether the learned Judge was bound to dismiss the appeal of the plaintiffs against the other defendants as well inasmuch as it had abated against Niadar. The learned Judge has relied on the recent case of this Court in Ram Dei v. Jurawan Misr : AIR1930All762 , in which it has been very clearly pointed out by the learned Judges constituting the Bench that under Order 22, Rule 4(3) an appeal can abate as against a deceased defendant only but it is only when it is not possible to go on with the suit in the absence of the deceased defendant's heirs that the whole suit fails. They have rightly pointed out that it is a misnomer to characterize the dismissal under such circumstances as an abatement of the suit in its entirety. No doubt this expression had been loosely used in some previous oases, but we fully concur in the view expressed in that judgment; that it is misnomer to characterize a dismissal as an abatement of a suit in appeal in its entirety. The suit really abates against the deceased whose heirs are not brought on the record and in certain cases it may become impossible to go on with it any further, which would necessitate the dismissal of the suit. Rulings in which a suit for partition has been held to fail in the absence of necessary parties of suits in which joint mortgage decree or money decrees have been passed are not directly in point, nor are cases in which partners are suing jointly. Similarly cases where suits are filed for the avoidance of a deed of gift or sale-deed, under which several defendants are claiming title, would be distinguishable. But where a suit is brought for possession of immovable property against certain trespassers and an injunction also is claimed against them, it cannot be said that a decree for possession and injunction against some of the trespassers is so contradictory to a dismissal of the suit as against some others that it cannot be passed. It may well be that a plaintiff is prevented from objecting to the entry of a particular defendant with whom he may afterwards amicably settle the matter, but that is no ground to refuse him similar relief as against other persons to whom also he objected. Had a suit been brought against these trespassers only without impleading some of the other trespassers it could not have been dismissed on the simple ground that the other trespassers who were also either in possession or interfered with the plaintiffs' possession had not been impleaded.
4. We are satisfied that in a suit for possession and injunction against trespassers the mere fact that one of the trespassers has died and his heirs have not been brought on the record does not make it impossible to pass a decree in favour of the plaintiffs against the trespassers who are before the Court. Such a decree would, of course, be against the defendants in their personal capacity. The appeal is accordingly dismissed with costs.