1. This is an appeal by the first defendant against a decision of the Subordinate Judge of Mymensingh who dismissed the appeal on the ground that, even if the defendants were successful, the decree would be infructuous by reason of the fact that the heirs of respondent No, 6 had not been brought on the record within the time allowed by law. The suit in respect of which this appeal arises was a suit for khas possession after evicting the defendants. The plaintiffs in the suit were Muhammadans - two being brothers, other plaintiffs being heirs of a deceased brother and the remaining plaintiff being the widow of another brother. They claimed joint possession of the whole of the land and the Munsif decreed the suit in respect of 10 annas 13 1/4 gandas, decreeing that the plaintiffs were to get joint possession with the defendants. Now respondent No. 6 died and, as already stated, his heirs were not brought on the record in time. Now, it is said that this case is distinguishable from the case of Kali Dayal v. Nagendra Nath 54 Ind. Cas. 822 and from the other cases cited in that judgment on the ground, first of all, that the defendants are entitled to a five-annas and odd share and, secondly, on the ground that the plaintiffs being Muhammadans the share of the heirs of the respondent No. 6 is ascertained or capable of ascertainment, it being said that it is 1-32nd. It is said that this is the share to which a Muhammadan widow under the circumstances would be entitled. What is argued is this. It is said that the appeal will not necessarily be infructuous, that if the defendants succeeded they would then be entitled as joint owners with the heirs of respondent No. 6 to bring a suit for partition, and it is suggested that in this suit it would be possible to establish that the heirs of respondent No. 6 were only entitled to l-32nd of the property with the result that the defendants might become entitled to 10 annas 13 1/4 gandas less l-32nd thereof.
2. It seems to us, however, that this point is concluded by the authority to which I have already referred. The basis of the decision is this : that where there is a decree such as this in favour of one of the respondents who has died, which cannot be questioned by reason of the fact that owing to lapse of time any right of appeal has abated, if the appeal succeeded against the respondent who remained alive there might be conflicting decisions of the Court, that is to say, there might be the decision of the first Court in favour of the respondent who has died, a decision which cannot be questioned, and the decision of an appellate Court contrary to the decision of the first Court which cannot be called in question owing to the abatement. That seems to us to be the ratio decidendi of the cases on the subject. The arguments urged by the learned Vakil for the appellant do not get over that difficulty. Suppose the appeal proceeded and the defendants were successful; they would then be forced to commence a partition suit, and if they succeeded to the extent to which we have stated there will then be a decision of the Court which cannot be questioned by reason of the abatement and possibly a decision in the partition suit that would conflict with the decision which cannot be called into question, with the result that there would be a conflict of decisions of two Courts with regard to the same subject-matter. In this view the judgment appealed against is correct, and the case is governed by the decision above referred to and the cases therein cited. The appeal is dismissed.
3. The Vakil who has appeared for the respondents has not been able to file a properly executed vakalatnamah. If he files a properly executed vakalatnamah within a fortnight the respondents will get their costs, otherwise there will be no order as to costs inserted in the decree.