1. This appeal arises out of a suit instituted by two persons as plaintiffs for recovery of khas possession of some lands by evicting the principal defendant and for mesne profits.
2. The case as laid in the plaint was that the two plaintiff's acquired jamai right to the plaint lands on taking settlement thereof from the owners, that one Panchu Gope and one Bhupati Ghose used to hold the lands as korfa tenants under the said owners, that the said Panchu Gope and Bhupati Ghose mortgaged their rights, to the principal defendant who sued upon the mortgage, and in execution of the decree which he obtained, purchased the same. The plaintiff's alleged that the principal defendant acquired no title by his purchase and was accordingly liable to be evicted. It is not necessary to refer to the defence for the purposes of this appeal.
3. The Munsif decreed the suit in part with proportionate costs. He gave the plaintiffs a decree directing that they do get khas possession of the plaint lands by evicting the principal defendant therefrom and also awarding them certain amount as mesne profits.
4. The principal defendant, therefore, preferred an appeal. The Subordinate Judge who dealt with the appeal allowed it set aside the decree of the trial Court and dismissed the suit with costs of both the Courts. He observed, however, thus, at the conclusion of his judgment:
The decision of this suit would not operate as res judicata in any subsequent suit brought by plaintiffs for the same relief.
5. The plaintiffs have then preferred this appeal. A point has been raised as to the competency of this appeal it being urged that in view of the remarks of the learned Subordinate Judge quoted above, he has decided nothing and his decision does not amount to a decree within the meaning of Section 2, Sub-section (2) of the Code. This objection is not without substance, though perhaps it is also possible to take the view that the decision on the face of it amounts to a decree, and that the remarks to which reference has been made are obiter. It is unnecessary, however, to pursue this matter any further as it is always open to us to treat the memorandum of appeal as a revision petition, and we think we should be prepared to do so in the present case.
6. The Subordinate Judge has found that though in the plaint the two plaintiffs alleged that they had obtained settlement from the owners by registered patta or pattas (the word as used in Bengali being capable of either interpretation), in point of fact, of the three plots which the suit lands consist of, plaintiff 1 alone obtained settlement of plots Nos. 1 and 2 and plaintiff 2 alone obtained settlement of plot No. 3, the settements being under two separate pattas, and one plaintiff having nothing to do with the other. On this finding he has held that plaintiff 1 is not entitled to get any decree for possession in plot No. 3 and plaintiff 2 is hot entitled to get any decree for plots Nos. 1 and 2 and that, therefore, the joint decree in favour of the two plaintiffs for khas possession as well as for mesne profits for the three plots taken together is wrong and cannot be upheld. This view is entirely correct and can hardly be challenged.
7. But then the Subordinate Judge proceeded to dismiss the suit on the ground that the suit was not maintainable as there was misjoinder of parties and cause of action. He took the view that the misjoinder has affected the merits of the case, but all that he has said in support of this view is that a wrong decree was passed by the trial Court.
8. Learned advocate for the appellants says in the first place that in view of Order 1, Rule 13 and Order 2, Rule 7 the objection as to misjoinder not having been taken in the trial Court should not have been entertained at the appellate stage. This contention in my opinion should be overruled as the suit as framed was not bad for misjoinder : the plaintiffs themselves are to blame for not having disclosed the details of their respective titles in the plaint.
9. It is next urged on behalf of the appellants that the merits of the case or the jurisdiction of the Court have not been affected and so in view of Section 99 of the Code, the trial Court's decision should not have been reversed. But before this question is considered it is necessary to see whether in fact, there has been any misjoinder. On this question it is practically conceded on behalf of the respondent that taking Order 1, Rule 1 and Order 2, Rule 3 together and applying the same to the facts o-f the present case, as disclosed in the evidence, the suit is maintainable. The words of these rules are very wide. Their scope and the authorities bearing upon the same have been dealt with by this Court in Miscellaneous Appeal No. 231 of 1926, decided on 31st March 1927, the judgment of which case, I understand, is about to be reported. I shall quote only two passages from two of the more recent English decisions bearing upon this question as these rules are drawn upon the lines of the English Supreme Court Rules. In Markt v. Knight Steamship Co. (1910) 2 K.B. 1021, Fletcher Moulton, L.J., observed thus:
Subject to the control of the Court, persons can unite as plaintiffs though seeking individual reliefs in cases where the investigation would to a great extent be identical in each individual case. The policy of the rule is to avoid needless expanse where it can be done without injustice to anyone. And it carries out its object.
10. The Court of Appeal (Lord Sterndale, M.R. Warrington, L.J. and Scrutton, L.J.) in Payne v. British Time Recorder Co. (1921) 2 K.B. 1 have said:
Broadly speaking, where claims by or against different parties involve or may involve a common questions of law or, fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the Court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.
11. The result then is that the decree of the learned Subordinate Judge cannot be allowed to stand. It is accordingly set aside and the case will now go back to the lower appellate Court so that the appeal before that Court may now be dealt with on the merits and disposed of in accordance with law.
12. Costs of this appeal will abide the result.
13. I agree.