S.K. Mal Lodha, J.
1. The plaintiff-non-petitioner No. 1 instituted a suit for possession and mesne profits against the defendants in the court of District Judge, Pali. It was stated that in 1970, defendants Nos. 1 and 2, Mohammed Yusuf and Noor Mohammed took wrongful possession of the land in dispute shown in yellow colour in the map, that defendant No. 2 Munnilal took possession of this land from the aforesaid defendants, that 3-4 months prior to the institution of the suit, defendants Nos. 1 and 2 again took back its possession from defendant No. 3 and that they are carrying on business in the name of 'Allahbux Allarakh Nogi'. According to the plaintiff, defendants Nos. 1 and 2 or defendant No. 3 were trespassers. It was stated that the plaintiff is entitled to restoration of possession from defendants Nos. 1 and 2 or defendant No. 3, whosoever may be found in possession of the land in dispute. In para 3 of the plaint, it was stated that in the proceedings under Section 145, C.P.C., Ghishulal v. Abdulrehman, brother of defendant No. 2, informed the court of the S.D.M. that the land in dispute is in possession of defendant No. 3 and, therefore, he was impleaded as defendant. Ex parte proceedings were taken against defendant No. 3 on October 25, 1972.
2. Defendant No. 1 resisted the suit of the plaintiff. It was averred that defendants Nos. 1 and 2 did not take illegal possession of the land in dispute, in 1970 and that it was wrong that defendant No. 3, who was the proprietor of 'Basant Dyeing', took the land in possession before one year, as alleged by the plaintiff. Defendant No. 2 also resisted the suit. It was denied that defendant No. 3 ever took possession of the land in dispute. Issues were framed by the trial court on April 4, 1975. The fact of delivery ef possession to defendant No. 3 by defendants Nos. 1 and 2 was not put in issue.
3. Defendant No. 3 died during the pendency of the suit. An application was moved on behalf of defendant No. 1 Mo-hammad Yusuf on Sept. 2, 1978 stating that defendant No. 3 Munnilal had died four months before, that Munnilal was a necessary party to the suit, that ho has left heirs behind him who have not been brought on record and, therefore, the suit should be abated. This application was supported by his affidavit. Similarly, an application was submitted on behalf of defendant No. 6 Gulam Rasool praying that the suit may be dismissed as having abated. These applications were resisted on behalf of the plaintiff by filing a reply dated November 10, 1978. It was stated in the replythat in the suit, relief has been asked against defendants Nos. 1 and 2 or against defendants Nos. 3 and 6. It was, therefore, prayed that the applications filed on behalf of the aforesaid defendants may be dismissed. On January 5, 1979, the plaintiff's counsel submitted an application under Order XXII, Rule 4, C.P.C. praying that in the interest of justice decree may be passed against Munnilal without impleading his legal representatives on record. This application was resisted by defendant No. 1 Mohammed Yusuf and defendant No. 6 Gulam Rasool. The learned District Judge, by his order dated Feb. 2, 1979, ordered that the suit stood abated against defendant No. 3 alone. He, however, did not grant prayer of defendants Nos. 1 and 6 that on account of death of defendant No. 3 Munnilal, the suit stood abated in entirety. He, therefore, ordered that against the remaining defendants, the suit will proceed and that a note be given in the plaint that it has abated against defendant No. 3.
4. Feeling aggrieved by this order, petitioner Gulam Rasool (defendant No. 6) has come up in revision.
5. I have heard Mr. Parekh, learned counsel for the petitioner and K.C. Samdaria, learned counsel for non-petitioner No. 1 and have also gone through the pleadings.
6. On May 4, 1979, at the commencement of the arguments, learned counsel for non-petitioner No. 1 raised a preliminary objection that the revision against the impugned order is not maintainable. In support of the preliminary objection, Mr. Samdaria relied on a decision reported in Uttamkumar v. Jaipur Vastra Vyapar (1971 WLN Part II-9). On that day, Mr. Parekh, learned counsel for the petitioner, took time to meet the preliminary objection. In Uttamkumar's case, it was observed by Chhangani, J., as under:
'I am also not inclined to exercise the revisional jurisdiction in connection with the trial court's decision on issue No. 9. The order is of an interlocutory nature and it is open to the petitioners to challenge it in any appeal against the final decision.'
Issue No. 9, in that case, was whether certain persons were necessary parties to the suit, and the trial court had held that the existing defendants being severally liable, omission on the part of the plaintiffs to bring on record all the legalrepresentatives of the deceased Radheshyam did not result in the abatement of the suit against the existing defendants.
7. Mr. Parekh, on the other hand, submitted that Uttamkumar's case does not lay down good law in view of the decision of their Lordships of the Supreme Court reported in S.S. Khanna v. F.J. Dhillon, AIR 1964 SC 497, wherein it was held that revisional jurisdiction of a High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit and that where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded. It was further held that the 'case' includes a part of the case. In Uttamkumar's case, S.S. Khanna's case was not noticed.
8. In these circumstances, the first question that I am called upon to determine is whether the order holding that he suit has abated against defendant No. 3 only and that it would proceed against the remaining defendants, amounts to 'case' decided. Conflict of opinion on the question whether the expression 'case which has been decided' includes interlocutory order, has been resolved by the Supreme Court in S.S. Khanna's case lolding that it includes interlocutory order. Explanation to Section 115, C.P.C. makes it abundantly clear that the expression 'any case which has been decided' includes any order, made or any order deciding an issue, in the course of a suit or other proceedings. Thus, the expression 'any case which has been decided' means each decision which terminates a part of the controversy involving the question of jurisdiction. It, therefore, follows, that the revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from ultimate decree of the order passed in the suit. In this case, the learned District Judge had adjudicated the question that the suit has abated against defendant No. 3 only and that it would proceed against the remaining defendants. Thus, the order under revision has resulted in terminating a part of the controversy involving the question of jurisdiction. In view of the abovementioned decision of the Supreme Court, I am of the opinion that the present application for revision against the order of the District Judge is maintainable. Accordingly, I overrule the preliminary objection raised by Mr. Samdaria, learned counsel for the plaintiff-non-petitioner No. 1.
9. Learned counsel for the petitioner submitted that the entire suit has abated as the legal representatives of the deceased defendant No. 3 Munnilal, who were necessary parties to the suit, have not been brought on record in time. According to the learned counsel, when the learned District Judge ordered that entire suit has not abated and it would proceed against the remaining defendants, he has exercised jurisdiction not vested in him by law. Mr. Parekh urged that according to plaint averments, defendant No. 3 Munnilal was a co-trespasser along with some other persons and all the trespassers are necessary parties to the suit and decree against one trespasser cannot be effectively executed without driving all other trespassers, who have committed trespass on the land at the time of the accrual of the cause of action. In other words, learned counsel suggested that the legal representatives of a joint-trespasser are necessary parties and as defendant No. 3 Munnilal's legal representatives were not impleaded in time, the entire suit has abated and if this order is allowed to stand, it would cause irreparable injury to the petitioner, who is defendant No. 6 in the suit. In support of his submission, learned counsel placed reliance on Arunadoya v. Mohammad Ali, AIR 1928 Cal 138, Hakir Mahamed v. Abdul Majid, AIR 1953 Cal 588, Roopchand v. Mithalal, AIR 1959 Raj 17 and Damodar Patra v. Kanchan, AIR 1963 Orissa 140.
10. On the other hand, learned counsel for the plaintiff-non-petitioner No. 1 contended that in view of the averments made in the plaint and the written statements of defendant No. 1 Mohammed Yusuf and defendant No. 2 Noor Mohammed and the reliefs prayed for by the plaintiff, the learned District Judge was right when he held that suit has abated against defendant No. 3 Munnilal alone and it does not abate in entirety. Learned counsel invited my attention to Shibban v. Allah Mehar, AIR 1934 All 716, Himanshudhar Singh v. Ram Hitkari, AIR 1963 All 496 and Damodar Patra's case (AIR 1963 Orissa 140).
As to what principles should be taken into consideration for deciding the question of partial and total abatement of a suit, he referred to State of Punjab v.Nathuram, AIR 1962 SC 89, Mangal Singh V. Rattno, AIR 1967 SC 1786 and Gulam Mohammed v. Kishanlal, AlR 1975 Raj 163. Learned counsel submitted that in view of the provisions contained in Order XXII, Rule 4 (4), as defendant No. 3 has failed to file written statement and the suit proceeded ex parte against him, the court could exempt the plaintiff from the necessity of substituting the legal representatives of defendant No. 3 Munnilal. In these circumstances, according to the learned counsel, Section 115, C.P.C. should not be invoked in this case.
11. I have bestowed my most anxious and thoughtful consideration to the rival contentions of the parties.
12. Following are the tests, which emerge from State of Punjab's case (AIR 1962 SC 89). Mangalsing's case AIR 1967 SC 1786) and R. P. Gupta v. Murli Prasad, AIR 1972 SC 1181:
(1) Where the absence of the legal representatives of the deceased from the record, renders it impossible to proceed with the suit or appeal as against the rest, the suit or appeal will fail in entirety and that such impossibility may arise from the suit or appeal becoming imperfectly constituted for want of necessary or essential parties; or
(2) that the plaintiff or the appellant could not have brought the action against the remaining defendants or respondents alone; or
(3) that from the undesirable possibility of having two inconsistent or contradictory decree in one and the same suit; or
(4) that there will be futility of proceeding further in the matter in which the decree, if given, would not be effectually executed by reason of the outstanding right of the legal representative of the deceased.
In R. P. Gupta's case, their Lordships of the Supreme Court have succinctly summarised the facts to be taken into consideration for deciding the question of partial or total abatement in the following words:
'The courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the court's passing a decree which will be contradictory to the decree which had become final withrespect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. These three tests, as pointed out by this Court in Sri Chand v. Jagdish Pershad Kishan Chand, (1966) 3 SCR 451 : (AIR 1966 SC 1427) are not cumulative tests. Even if one of them is satisfied the court may dismiss the appeal.'
13. Tn the case before me, I am concerned with the question whether the non-impleading of the legal representatives of defendant No. 3 Munnilal would result in a total failure of the suit. For this purpose, it is necessary to find out whether the interests of all the defendants in the suit are joint and indivisible so that the interest of the deceased defendant cannot be separated from those of the rest. The nature of statement will also depend upon the relief involved in the suit. If the plaintiff stes up joint and indivisible right and defendant sets up his separate and indivisible right, the point should be adjudicated before deciding the nature of the abatement. In a suit for ejectment against the defendants, who have jointly trespassed upon the property and where one of the joint trespassers died and his legal representatives are not brought on record in time, it is well established that suit against the deceased joint trespasser will abate. But there is a conflict of opinion as to the effect of the abatement on the suit so far as the remaining joint trespassers are concerned. Mr.. Parekh has placed strong reliance on the decisions reported in Arunadoya's case (AIR 1928 Cal 138), Hakir Mohamed's case (AIR 1953 Cal 588) and Damodar Patra's case (AIR 1963 Orissa 140). It was held in that 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 tune of the accrual of the cause of action that in the absence the legal representatives of the deceased defendant the controversy as regards the rights and interests of the plaintiff and the surviving defendant cannot be effectively determined and that even if it isdetermined the decree passed will not be effective decree and can be rendered infructuous by the action of the legal representatives of the deceased defendant and by surviving defendant taking shelter under the legal representatives of the deceased.
14. In Roopchand's case (AIR 1959 Raj 17), which was a case oi appeal, learned Judge, dissenting from Shibban's case (AIR 1934 All 716) observed as under:
'In this view of the matter. I am clearly of the opinion that the whole appeal before the lower court abated and that it did not abate against Bherunlal alone. I would point out once again that the one broad test in such cases that has been accepted is whether the continuance of the appeal would result in two inconsistent decrees or would result in the emergence of a decree which could be rendered futile by the other persons in possession who are not properly before the court. I have no doubt that judged by this test, the whole appeal must stand abated.'
The other view that in such a case, there is no question of abatement against the remaining joint trespassers, finds support from the decisions reported in Himanshudhar Singh v. Ram Hitkari (AIR 1963 All 496) and Harichand v. Bachan Kaur (AIR 1971 Punj & Har 355). Both these decisions relate to the abatement and the principle laid down is that a decree against one co-trespasser is certainly an effective decree as between him and the plaintiff and can be executed as against him. In Himanshudhar Singh's case, the learned Judges have, amongst others, referred to Arunadoya's case (AIR 1928 Cal 138), Shibban's case, AIR 1934 All 716, Baijnath v. Ram Bharose, AIR 1953 All 565 (FB), Malobi v. Gaus Mohamed, AIR 1949 Nag 91, Aravinda v. Payodhar, AIR 1950 Assam 53, Hakir Mohammed's case (AIR 1953 Cal 588) and Roopchand's case.
15. The decision of the Allahabad High Court in Shibban's case (AIR 1934 All 716) was dissented by the learned Judge of this Court in Roopchand's case (AIR 1959 Raj 17).
16. In this case, it is not necessary for me to examine both the aforesaid views and the cases in support of them, in detail, for, the question will have to be answered in the light of the averments made in the plaint, the two written statements, referred to above and the relief, which the plaintiff has sought.
17. A perusal of para 3 of the amended plaint shows that during the year 1970, defendants Nos. 1 and 2 took illegal possession of the land in dispute shown in yellow colour in the map, that defendant No. 3 Munnilal, who was the proprietor of 'Basant Dyeing', took possession of the land in dispute from defendants 1 and 2, that four months preceding the date of institution of the suit, defendants Nos. 1 and 2 again took back its possession and since then, they have been carrying on their business on it in the name of 'Allahbux Allahrakh Mogi'. In para 3, it is further stated that the plaintiff is entitled to get the possession either from defendants Nos. 1 and 2 or from defendant No. 3, whosoever may be in possession of it. It is also averred in that para that in case possession is found of defendant No. 3, the plaintiff is entitled to get its possession from him. Para 10 of the amended plaint, relates to relief. A perusal of that para shows that the plaintiff has prayed that the possession may be delivered to her from defendants Nos. 1 and 2 or 3 or 6 and pendente lite and future mesne profits at the rate of 300 p. m., may be decreed against defendants Nos. 1 and 2 or defendant No. 3 and from August 29, 1973, from defendant No. 6. Defendant No. 1 has denied that defendant No. 3 had at any time remained in possession of the land in dispute. He has further stated that he has every right to use the land for himself. So also, defendant No. 2 Noor Mohammed has stated that his possession on the land in dispute is legal. He has denied that defendant No. 3 had ever taken possession of the land in dispute.
18. It is, therefore, clear that the, plaintiff has not sued the defendants as joint trespassers. The interests of the defendants in suit, in these circumstances, cannot be said to be joint and indivisible. The contesting defendants Nos. 1 and 2 asserted that they are legally in possession of the land in dispute and that they are not trespassers. Keeping in view the tests summarised herein-above and having regard to the averments made in the plaint, written statements of defendants Nos. 1 and 2 and the nature of the reliefs, I am of opinion that the suit can proceed against the remaining defendants. The effect of not bringing the legal representatives of defendant No. 3 Munnilal on record is that the suit stood abated against him andnot against the remaining defendants. The learned District Judge was, therefore, right when he held that the suit has abated against the deceased defendant No. 3 Munnilal and as such it cannot be said that he has exercised jurisdiction not vested in him by law when he ordered that the trial of the suit will proceed against the remaining defendants. It follows, therefore, that there is no ground for interference with the order under revision.
19. The result is that there is no force in this revision petition. It is, therefore, dismissed without any order as to costs.