1. In this case the plaintiff brought a suit to have his Sadar Putni Taluka right declared and Khas possession given in certain properties alleging that one Jogendra Lal Chowdhury had purchased the estate under Act 11 of 1859 and had given him a Patni lease with powers to avoid the encumbrances on the land and obtained Khas possession. The first Court declared his title to most of the lands, excluding some mosques and burial grounds, and found that he was entitled to obtain Khas possession. In appeal the learned District Judge upheld the declaration of the plaintiff's title in respect of the land decreed by the lower Court, but set aside the order for Khas possession. The appeal before us is directed against that order.
2. A preliminary objection is taken, first of all, with reference to the question whether the Registrar o this Court was competent to admit the appeal out of time as it appears that the full Court-fees were not put in within the period of limitation. On this point the rules of this Court have been placed before us and it appears that under the rules and the customs of the Court the Registrar had the power to admit the appeal out of time.
3. A more serious difficulty arises owing to the fact, however, that of the defendants who are interested as being in Khas possession of the lands, and who, according to the Plaintiff No. 44, it appears that Defendant No. 11 is dead, a Rule was issued for substitution of his heirs but was subsequently discharged. It also appears that the Defendant-Respondent No. 42 is also dead, and no steps have been taken at all to substitute his heirs.
4. Now the order which we are asked to give is one of Khas possession of all the disputed lands. But there is nothing on the record to show that the various defendants owned lands in separate allotments or even in separate shares. There is no definition of shares, or of specific lands, belonging more to one defendant than to another. The effect therefore would be, if we were to give a decree for Khas possession, that it would be an infructuous decree for the unknown shares of the deceased Respondents Nos. 11 and 42 could not pass under it. The question therefore is whether the appeal does not abate. It is urged on behalf of the appellant that he will not proceed against the deceased respondents, but is entitled to appeal for a decree in respect of the rest. That might be so, if it was at all possible to differentiate and divide the lands of the deceased respondents from the rest of the lands. But that is impossible. The case therefore appears to us to be one in which the Court should not be justified, despite the provisions of Order 1, Rule 9, in entertaining this appeal in which no effective decree can be made owing to the absence of interested parties. In this connexion sea the case of Haran Sheikh v. Romesh Chandra Bhattacharjee  25 C.W.N. 219. In this view the appeal is dismissed with costs to the respondents who have appeared in this Court.