G.K. Misra, J.
1. The legal representatives of defendant No. 1, defendants 2 and 3 and 5 are the appellants. The plaintiffs' suit is for declaration of title and recovery of possession of the disputed lands described in items 1 to 14 of the plaint, with a further declaration that the order (Ext. 3) passed in a proceeding under Section 145 Cr. P. C. on 8-10-48 is illegal and not binding on the plaintiffs. The plaintiffs purchased the disputed properties from defendant No. 7 on 4-6-46 by a registered sale deed (Ext. 1). Defendant No. 7 had the occupancy right and he had got the melavaram right in 1900 as Bajantri Jagir from the Zamindar of Sharakote on payment of quit rent. Defendants 1 to 6 trespassed upon the disputed lands. A proceeding under section 145 Cr. P. C. was started, in which possession was declared in their favour.
2. The defendants do not raise any dispute with regard to items Nos. 3 and 13. So the plaintiffs are entitled to recover possession of these lands. Defdts. 1 to 3 claim title and possession in items 1, 2, 4 and 5 and do not claim any interest in the other lands. Defendants 4 and 5 claim title and possession in items 5 to 12 and 14 and do not claim any interest in the other lands. Defendants 6 and 7 support the case of the plaintiffs. Defendant No. 4 died during the pendency of the suit and his legal representatives were not substituted. The suit abated against defendant No. 4.
3. Both the courts concurrently found that defendant No. 7 had occupancy right in the disputed lands and had acquired the melavaram right from the zamindar of Dharakote. Defendants 1 to 3 and 5 did not establish their title in the disputed lands. The plaintiffs had title and possession within 12 years of the suit. A decree was accordingly passed In favour of the plaintiffs for eviction against defendants 1 to 3 in respect of items 1, 2, 4 and 5. In respect of items 3 and 13 a decree was passed as no contest was raised. In respect of items 6 to 12 and 14 a decree for joint possession with the legal representatives of defendant No. 4 was granted on the finding that the suit abated against defendant No. 4. But despite the partial abatement the suit was competent against defendant No. 6.
4. Mr. Dasgupta did not challenge the findings of the courts below that the plaintiffs had title to the suit lands and possession within 12 years of the suit. He raised two contentions -- (1) The suit having abated against defendant No. 4 the entire suit was incompetent, and (2) Even if the suit was not incompetent against defendants 1 to 3, it was incompetent against defendant No. 5.
5. There is no dispute that the suit abated against defendant No. 4. The contention that the suit was wholly incompetent on account of partial abatement is not correct. Defendants 1 to 3 raised contest with regard to items 1, 2, 4 and 5 in which defendants 4 and 5 did not claim any interest. The plaintiffs can therefore have a decree with regard to these lands, and there is no question of incompetency of the suit relating to those. Mr. Das Gupta fairly did not press this argument.
6. I would proceed now to examine if the suit becomes incompetent against defendant No. 5 on account of its abatement against the legal representatives of defendant No. 4. Under Order 22, Rule 4 (3) C. P. C. where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant. There is no further provision in Order 22 as to what would happen so far as the other defendants are concerned. It is however well settled that whether the suit would proceed against the other defendants or not would depend upon the nature of the cause of action and the relief sought. Order 1, Rule 9 C. P. C. throws certain light on the question also. It prescribes that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The question would be whether the court can deal with the matter in controversy between defendant No. 5 and the plaintiffs regarding their rights and interests. This will depend upon the facts and circumstances in each case and no exhaustive tests can be laid down. Some tests generally followed are --(1) Is the deceased defendant a necessary party to the suit in whose absence the suit is bound to fail, and the plaintiffs could not have brought the suit for necessary relief against those defendants alone who are still before the court? and (2) Can the decree in favour of the plaintiffs be effectively executed in the absence of the legal representatives of the deceased defendant?
7. The view that in the absence of the legal representatives of the deceased defendant the suit can proceed against the remaining trespassers in a suit for ejectment has been clearly exposed in AIR 1934 All. 716, Shibban v. Allah Mehar. Suleman, C. J. exposed the view as follows :
'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 ot the trespassers is so contradictory to a dismissal of tha 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 refief 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'.
8. The aforesaid view has however not been accepted by other High Courts and particularly Calcutta. As has been observed in AIR 1928 Cal 138, Arunadoya v. Mahomed Ali, in an action in ejectment all persons in possession should be impleaded as defendants. There is no distinction in principle between the cases of trespassers and of tenants who claim to hold under a title, because all actions in ejectment proceed on the assumption that the plaintiff has title, and hence the right to possession, and that the defendant has none. The rule that all persons in actual possession should be joined as parties has been recognised in this country upon good authority. Therefore all trespassers known to be in possession by the date of the suit are necessary parties to such a suit, and the decree against one trespasser cannot be effectively executed without driving out all other trespassers squatting on the land at the time of the accrual of the cause of action. Their Lordships expressed their view as follows : -
'If any of the persons in possession is left out, he remains in possession as not being affected by the decree, and the decree as one in ejectment and for possession becomes infructuous because the person ejected as being bound by the decree can always come in under the person who remains in possession; and secondly there is a certain amount of risk involved in not making the persons in actual possession defendants, for, in execution of the decree, persons may happen to be turned out who may then bring actions, against the plaintiff for wrongful dispossession, not being bound by the decree.'
9. The aforesaid view correctly enunciates the principles underlying Order 1, Rule 9 C. P. C. and in the absence of the legal representatives of defendant No. 4 the controversy as regards the rights and interests of the plaintiffs and defendant No. 5 cannot be effectively determined, and even it is determined, the decree passed will not be effective decree and can be rendered infructucus by the action of the legal representatives of defendant No. 4 and by defendant No. 5 taking shelter under the legal representatives of defendant No. 4. In Sukal Jena v. Lokanath Swain, Second Appeal No. 107 of 1957 (Orissa), the aforesaid principle was enunciated. That decision was accepted with approval in a Bench decision of this High Court in Kanhu Padhan v. Bhutulu Padhan, ILR (1962) Cut 17.
10. In a suit for damages iiowever the position is completely different. Joint tort-feasors may be sued for damages either jointly or severally. A release of the whole cause of action in favour of one of them gives a valid discharge so far as others are concerned. The principles of Section 43 of the Contract Act with regard to joint promisors have been made applicable to a suit for damages against joint tort-feasors. A suit for damages against one or some of the joint tort-feasors is accordingly maintainable.
11. This principle has no application to an action in ejectment. The causes of action in both the suits are completely different. In a suit for damages the cause of action is the injury caused to the immovable property belonging to the plaintiff. But in a suit for ejectment the cause of action is the detention of the immovable property itself. It is on this basis the governing principles applicable to either case are fundamentally different.
12. The result of the aforesaid analysis is that the legal representatives of defendant 4 are necessary parties to the suit. In their absence even the controversy between the plaintiffs and defendant No. 5 cannot be effectively determined, and even if it can be effectively determined the decree passed will not be an effective decree as its execution would be frustrated and rendered infructuous. Courts are loath to pass decrees which they themselves cannot effectively enforce.
13. Mr. Pal argues that in the plaint defendants 4 and 5 are not described as joint tort-feasors. It is true that the description does not occur in clear words. But on a perusal of the plaint, no doubt is ieft in the mind that defendants 4 and 5 were joint tort-feasors. In paragraph 7 of the written statement filed by defendants 4 and 5, the allegation was that late Bhagirathi Das, father of defendants 4 and 5 purchased the lands corresponding to items 6 to 12 and 14 of the suit lands and other lands measuring about 12 bharanams of lands from some Sondis in about 1884, and he and after him defendants 4 and 5 have been in possession of the said lands ever since the said purchase. Defendants 4 and 5 who are brothers claim joint title and joint possession. In the plaint there is no allegation that defendants 4 and 5 are in separate possession either of specific lands or of an undivided share.
On the pleadings of both parties defendants 4 and 5 were joint tort-feasors. Both the Courts below granted a decree to the plaintiffs in respect of the aforesaid items for joint possession with defendant No. 5. The learned lower appellate court took into consideration the evidence of D. Ws. 3 and 5 to the effect that the defendants 4 and 5 separated in mess and estate about 13 or 14 years prior to their deposition, and so the claim against defendants 4 and 5 can be easily split up. The concurrent finding of both the courts on this point is contrary in law in as much as they have accepted the case contrary to the pleadings.
14. Even assuming that there was severance of joint status between defendants 4 and 5 with respect to their properties, it cannot be said that the severance of joint status extends to every action of theirs and to the trespass itself. Complete strangers having absolutely no blood relationship or no unity of title and possession may be joint tort-feasors. Mere proof of severance of joint status in respect of the joint family properties would not establish that defendants 4 and 5 are not joint tort-feasors. Even assuming that they were not joint tort-feasors and each one was a trespasser with respect to half the interest in items 6 to 12 and 14, the suit would still be incompetent against defendant No. 5.
This is based on the principle that the right, title and interest inter se between, defendant 5 and the legal representatives of defendant No. 4 cannot itself be determined in the suit in the absence of the legal representatives of the deceased defendant No. 4. Such determination would affect the rights of the legal representatives. Even if their rights are not affected, the decree passed by the court determining their interest inter se vis-a-vis the plaintiff is not binding on them and cannot be enforced. On this basic principle even if the finding of the courts below that there was severance of joint status between defendants 4 and 5 is accepted, the suit would be incompetent against defendant No. 5.
15. In the result, the plaintiffs' suit against defendant No. 5 with regard to items 6 to 12 and 14 must fail. The appeal of Gadadhar Das (appellant No. 3) and defendant No. 5 is allowed and that of the other appellants is dismissed. Parties to bear their own costs throughout.