1. The appeal is by the defendants (except the 7th) against the decree of the Subordinate Judge of Chittoor declaring the plaintiff's title to the plots marked J and P in the plaintiff's plan and directing formal delivery coupled with an injunction restraining the defendants from entering upon the land. There are three contiguous villages, of which Panguru and Jangalapalli are the property of the plaintiff while the third Krishnampalli Agraharam, belongs to the defendants, who are the joint Agraharamdars. These villages have never been surveyed, which adds considerably to the difficulty of locating and identifying any piece of land within them. The plots in dispute are two blocks of forest land, block P being situated according to the plaintiff in Panguru and block J in Jangalapalli, while the defendants assert that they are comprised within the limits of their own village Krishnampalli. Each side has filed a plan in support of its allegations and these plans are considerably at variance; but there is no substantial disagreement as to the general situation of the two blocks, and it will be convenient to refer in discussing the evidence to the plaint plan.
2. Dealing first with block P, the learned Subordinate Judge has assigned the whole of it to Panguru village and therefore to the plaintiff. The finding has been attached with reference to issue 6, whether the plaintiff's claim in respect of that portion of P which the defendants now assert belongs to them is barred by res judicata by virtue of O.S. No. 112 of 1895 on the file of the District Munsif's Court of Tirupathi. The lower Court has dealt with this question in para. 14 of its judgment and has come to the conclusion that no identity can be traced between the subject-matter of that earlier suit and the present block P. We think however that with the help of the plan (Ex. 4) prepared by the Commissioner in that suit a positive conclusion can be reached. (After examining the plans, his Lordship held that the plaintiffs were precluded by res judicata from claiming the area within these boundaries; and that the defendants were similarly precluded from claiming any land lying further west and proceeded.) This disposes of appeal so the far as plot P is concerned. Plot J which in the plaint plan is the figure QS K G, forms according to the plaintiff the western end of Jangalapalli, the southern boundary of which therefore will continue in a straight line up to the point K. (After discussing the boundaries and examining the plans his Lordship held that the plaintiffs were entitled to a decree in respect of this area. The judgment then proceeded.) During the pendency of the appeal, appellants 2 and 5 died. The legal representatives of appellant 2 have been brought on the record, but it has been found necessary to dismiss an application by an alleged representative of appellant 5. The point has been raised whether, with this appellant unrepresented on the record, we can deal with the lower Court's decree as a whole as it stands against all the sharers in the Krishnapalli Agraharam. We consider that O.41, Rule 4, Civil P.C. enables us to do this. If some among the defendants could appeal and the Court could upon such appeal reverse or vary the decree as a whole it seems to follow that where all the defendants appeal and the appeal of one or more abates by reason of death the Court should be able to exercise similar powers. If this were not so, either the whole appeal must abate or the decree in its final form must be composed of incompatible elements, each a highly undesirable consequence. There is the direct authority of a Bench of this Court in Soma Sundaram Chettiar v. Vythialinga Mudaliar (1917) 40 Mad 846, that the Court has such a power. That was a suit by reversioners against alienees from a widow two of whom died pending the appeal. Since the alienees possessed separate interests the case was not as strong as that now before us, where the defendants are co-sharers. Nevertheless it was held that in order to avoid incongruity in judicial decisions on the same facts the Court was competent to set aside the decree as a whole and not merely in respect of the interest of those appellants whose appeal had not abated. This case was followed by Spencer, J., in Chengamma Naidu v. Gangalu Naidu AIR 1925 Mad 235, in a judgment which distinguishes the Privy Council case: Raj Chander Sen v. Ganga Das Seal (1904) 31 Cal 487 on the ground that case affected the relations of the parties inter se and not as a whole.
3. The judgment of Spencer, J., was confirmed in Letters Patent Appeal No. 96 of 1924 by Venkatasubba Rao and Jacson, JJ. The same view has been taken by two other High Courts: see Ram Sevuk v. Lamber Pande (1903) 25 All 27 and Chander Singh v. Khima Bhai (1900) 22 Bom. 718. The only cases cited to us contra are two of Calcutta: Nairuddin Biswas v. Mamiruddin Laskhar : AIR1928Cal184 and Hari Charan Moulik v. Kalipada Chakkaravarthi : AIR1929Cal519 . The learned Judges in the former case dissent from Sundaram Chettiar v. Vythiling Mudaliar (1917) 40 Mad 846 and in the latter case the Bench did not refer either to the provisions of Order 41, Rule 4, Civil P.C. or any of the decisions noted above. We think therefore that judicial opinion is fairly agreed upon this point, and that the absence of a legal representative on the record does not incapacitate us from dealing with the appeal as a whole. We allow it with respect to the portion of plot P which we have defined above by its boundaries and we dismiss it with respect to plot J. The parties will pay their own costs in each Court.
4. The memorandum of objections asks for the award of the sums mentioned in para. 12(b) of the plaint. The learned Subordinate Judge has awarded only Rs. 50 being the sum claimed for loss sustained by the plaintiffs on account of the trespass of the defendants, against defendant 7, who was ex parts. We think that the lower Court has given sufficient reasons for making this award against defendant 7 only. But what seems to dispose of any further claim is the statement at the end of para. 7 of the plaint that the block P was the only portion which had been invaded by the defendants. As regards the sum of Rs. 300 per annum claimed for loss of profits it may further be added that no proof of exclusion has been given. We dismiss the memorandum of objections with costs.