1. This appeal arises out of a suit which was instituted by the plaintiffs to recover khas possession of certain lands on declaration of the plaintiffs' maliki right thereto. The plaintiffs' case was that one Rahamat Sheikh held an ordinary jote, that he abandoned the same and went away from the village without making any arrangements for payments of rent of the jote and that the plaintiffs wanted to take possession of the lands but were resisted by the defendants. Of the defendants against whom the suit was instituted only one, viz. defendant 5, filed a written statement and contested the suit. The substantial defence of defendant 5 was that Sheikh Rahamat's sons sold a portion of the lands to defendant 5 and his brothers (one of whom was defendant 6) in 1316, that since the said sale defendant 5 and his brothers have been in possession of the lands which they had purchased, and the heirs of Sheikh Rahamat were in possession of the remaining lands of the jote. The defence thus put forward was that there was no abandonment but only a transfer of a part of the holding.
2. The trial Court found that there was a complete abandonment of the holding and decreed the suit except as against defendant 6 who died during the pendency of the suit. He found that defendant 6 had left a mother who was alive, and though the latter was not brought on the record as the heir of defendant 6 the suit would not fail. Defendant 5 appealed from this decision. The Sub-Judge-framed three questions for determination: 1st, Is the suit maintainable against the other defendants without making the legal representative of the deceased defendant 6 parties to the suit; second, Was there any abandonment of the holding held by Rahamat and his successors; and third, Are plaintiffs entitled to khas possession. He did not determine the second and the third questions as his answer to the first question was in the negative. The suit was therefore dismissed. The plaintiffs have then appealed to this Court.
3. The suit, as framed in the plaint, was against the heirs of Rahamat Sheikh who were defendants 1 to 3, the purchasers who were defendants 4 to 6, and the subtenants defendants 7 and 8. It was, as has been already stated, a suit for khas possession.
4. The maintainability of the suit in the absence of the heirs of defendant 6 has been sought to be justified on the footing of the liability of joint wrongdoers, it being urged that it is a joint and several liability. In actions for damages joint wrongdoers may be sued jointly or severally. The principles relating to these actions are well settled. In Pollock on the Law of Torts, 10th edition, p. 206, they are stated thus:
Where more than one person is concerned in the commission of a wrong the person wronged has his remedy against all or any of them at his choice. Every wrongdoer is liable for the whole damage, and it does not matter whether they acted, as between themselves, as equals, or one of them as agent or servant of another. There are no degrees of responsibility, nothing answering to the distinction in criminal law between principals and accessories. But when the plaintiff in such a case has made his choice he is concluded by it. After recovering judgment against some or one of the joint authors of a wrong he cannot sue the others for the same matter, even if the judgment in the first action remains unsatisfied. By that judgment the cause of action 'transit in rein judicatum' and is no longer available. The reason of the rule is, stated that otherwise a vexatious multiplicity of actions would be encouraged.
5. As regards joint torts it is said in Addison's Law of Torts, 8th edition, p. 44:
All who aid or counsel, direct or join in, the commission of a tort are joint tortfeasors. 'If divers do a trespass it is joint and several at the will of him to whom the wrong is done' that is to say, he can sue any one or more of them at his election, and those who are sued cannot insist on having the others joined as defendants.
6. In Thurman Wild (1840) 11 Ap. & E. 453 and other cases it was settled that an accord and satisfaction by one wrongdoer for the whole injury done discharges all the wrongdoers. A release, therefore, given of the whole cause of action to one discharges the others, the reason being that the cause of action being one and indivisible, some having been released, all persons otherwise liable thereto are consequently released : Cocke v. Jennor  Hob. 66. But a covenant or agreement not to sue one of them is no defence to an action against others : Hutton v. Eyre  6 Taunt 289. If, therefore, while purporting to release one tort-feasor it reserves rights against another, it will be construed as a covenant not to sue, and not a release : Duck v. Mayen  2 Q.B. 511, Rice v. Reed  1 Q.B. 54. The rule for construing such a document was laid down in the case of Price v. Barker  4 E & B. 760, where it was held that in determining, whether a document be a release or a covenant not to sue, the intention of the parties was to be carried out, and if it were clear that the right against a joint debtor was intended to be preserved inasmuch as such a right would not be preserved, if the document were held to be a release, the proper construction, where this was sought to be done, was that it was a covenant not to sue and not a release. In King v. Hoare  13 M & W. 491 Parke, B., authoritatively laid down:
These considerations lead us, quits satisfactorily to our minds, to the conclusion that, where judgment has been obtained for a debt, as well as a tort, the right given by the record merges the inferior remedy by action for the same debt or tort against another party: see also Buckland v. Johnson  15 C.B. 145, Brinsmead v. Harrison  7 C.P. 547 and Kendall v. Hamilton  4 A.C. 504.
7. Brinsmead v. Harrison  7 C.P. 547 settled the point that, after recovering judgment against one wrongdoer, a plaintiff cannot sue the other for the same matter, even if the first action remains unsatisfied, a proposition which was doubted before them. Though Section 43, Indian Contract Act, is not perhaps quite clear whether a complete adaptation of the English rule is intended, yet King v. Hoare  13 M & W. 491 has been held to apply in this country both in respect of joint debtors and of joint wrongdoers. A fortiori then, an action for damages against one or some of several joint wrongdoers is maintainable.
8. Such an action, however, is entirely distinct from an action in ejectment. At common law there were only two kinds of redress from actionable wrong. One was to take the law into one's own hands of which it has been said thus:
It is only when the party's lawful act restores to him something which ho ought to have, or puts an end to a state -of things whereby he is wronged, or at least puts pressure on the wrongdoer to do him right, that self-help is a true remedy... The acts of this nature, which we meet with in the law of torts, are expulsion of a trespasser, re-taking of goods by the rightful possessor, distress damage feasant, and abatements of nuisances. Peaceable re-entry upon land where there has been a wrongful change of possession is possible, but hardly occurs in modern experience: Pollock on the Law of Torts, 10th edition, p. 189.
9. Possession could be recovered from an early time, but in an action which was one of trespass in form only and in reality was a sort of a real action. Before the passing of the Common Law Procedure Act, 1852 (15 & 16 Viet. C. 76) actions of ejectment were in point of form pure fictions, and of these actions it is thus said in Cole on Ejectment, p. 2:
The whole proceeding was an ingenious fiction, dexterously contrived so as to raise in every case the only real question, viz., the claimant's title or right of possession, and to exclude every other, and whereby the delay and expense of special pleadings and the danger of variances by an incorrect statement of the claimant's title or estate were avoided. But it was objectionable, on the ground that fictions and unintelligible forms should not be used in Courts of justice; especially when the necessity for them might be avoided by a simple writ so framed as to raise precisely the same question in a true, concise, and intelligible form. This has been attempted with considerable success in the Common Law Procedure Act, 1852,
10. 15 and 16 Vic. C. 76 Section 168, directed that:
Instead of the present proceeding by eject-moat a writ shall be issued, directed to all the persons in possession by name and to all persons, entitled to defend the possession of the property claimed, which property shall be described in the writ with reasonable certainty.
11. The Act of 1852 practically retained the old form of action, divested of the fictions on which it depended. As regards the parties to be made defendants in an action of ejectment the following is what is said in Dicey's Parties to an Action, pp. 494 and 497.
The persons to be made defendants in an action of ejectment, i.e., to be named in the writ, are all the tenants in possession of the land etc., sought to be recovered... The persons to be named in the writ are, therefore, all the tenants in posession, i.e., every person who occupies as tenant or under-tenant (or as owner) any part of the property... All the persons in actual occupation of the land claimed must, as already pointed out, be named in the writ and made defendants.
12. In Cole on Ejectment, p. 75, it is said: The general rule on the subject is, that the, action should be brought against all the tenants in possession, i.e., every person who occupies, as a tenant or under-tenant, any part of the property: Doe d. Smith v. Roe  5 Dowel. 254; Doe d. Williamson v. Roe 10 Moore 493; Doe d. Lord Darlington v. Cock  4 B & C. 259; Doe d. Turner v. Gee  9 Dowl. 612.
13. In every case, however, regard must be had to the circumstances, e.g., where the real intention of the action is to turn out the tenant and not the sub-tenants and the sub-tenants are numerous the latter need not be joined: Glen v. Herring  63 L.T. 507. If a person, in possession but not claiming through the defendant is not sued but ejected, he may have the judgment set aside on being added as a party: Minet v. Johnson  63 L.T. 507.
14. The cause of action in an action for damages is the injury sustained, while in that of action for ejectment is the detention of the property. The two causes of action are essentially distinct, and the principles applicable are radically different.
15. In Halsbury's Laws of England, Vol. 23, p. 102 the principles are summarized thus:
Para. 179. - The proper defendant in an action of tort is the wrongdoer or the person who is liable for the acts of the wrongdoer or to whom the liability for the injury has passed If several persons jointly commit tort they may all be sued jointly for such tort, or any one or more of them may be sued separately, and if one of several wrongdoers 'is thus sued the plaintiff cannot be obliged to join any of the others as co-defendants.
Para. 180. - In an action brought for the recovery of land, all the persons who are in possession should in general be joined as defendants.
16. The principles governing the rule of joinder of defendants in an action for ejectment are mainly two: first, 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 in fructuous because the persons ejected as being bound by the decree can always come in under the person who remains in possession; and second, 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.
17. It may, however, happen that the existence of a person in possession is not known to the plaintiff and so he is omitted, or one who is not in possession is wrongly impleaded, in the action. In cases such as these, as observed in Cole on Ejectment, pp. 84-85.If the name of any tenant in possession be omitted as a defendant those parts of the premises which are in his occupation cannot be recovered in that action. On the other hand, if the name of any person be inserted as a defendant, who is not actually a tenant in possession of any part of the property claimed, it will probably be necessary to obtain a Judge's order to amend the writ by striking out his name and to amend the writ accordingly.
18. In a case where the plaintiff has alleged in the plaint that a person is in possession, and there is no question of any particular share of which he may be in possession, it is obvious that it is not possible to apply the principle embodied in the first part of this rule
19. For the application of the rule, that 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 recognized in this country upon good authority: Banubi v. Narsingrao  31 Bom. 250; Kali Narayan Roy v. Haran Chandra Ghose  62 I.C. 714; Sarat Kamini Dasi v. Ghaitanya Char an A.I.R. 1923 Cal. 289; Siddik Ahmed Kerani v. Azizar Bahaman Khan : AIR1927Cal238 . The principle that a suit will not be entertained where no effective decree can be passed in it is well recognized: Haran Sheikh v. Romesh Chandra A.I.R.1921 Cal. 622.
20. The result then is that the appellant's contention, that the suit was maintainable in the absence of the heirs of defendant 6, must fail. There has, however, been no investigation on the question as to whether the mother of defendant 6 is in possession, and if so, whether she is not in possession of any specific plot out of the land in suit. In view of the exceptional nature of the case in which the said defendant has left only a mother surviving him, we think the plaintiff should be given an opportunity of establishing that the said widow may very well be left out on an investigation held on the lines indicated in the judgment of this Court in Sarat Kamini Dasi v. Chaitanya Charan Prohoraj A.I.R. 1923 Cal. 289.
21. We accordingly set aside the decree of the lower appellate Court and send back the case to that Court so that the plaintiff may be given such an opportunity, and that on giving the defendants also a chance of producing any materials in rebuttal, that they may desire to dispose of the appeal in accordance with law.
22. The appeal is thus allowed and the case remanded to the lower 'appellate Court. Costs of this appeal will abide the result.