B.B. Ghose, J.
1. This is an appeal by defendant 6 against the judgment and decree of the District Judge of Murshidabad reversing those of the Subordinate Judge of that place. Two plaintiffs brought the suit out of which this appeal has arisen. Defendant 1 was the zamindar of the property in question. He gave a usufructuary mortgage of the property to defendants 2 to 5 with possession. 'Within the zamindari there was a patni which is said to have been in the possession of pro forma defendants 7 to 12. Defendants 2 to 5 being in possession of the interest of the zamindar brought the patni to sale under Regti8, 1819 on the 1st Jeyth 1325 B.S. At the sale the patni was purchased by plaintiff 1. It is alleged that plaintiff 1 conveyed 8-annas share in the patni to plaintiff 2. The plaintiffs, after their purchase, did not pay the patni rent. For the arrears of the year 1326 B. Section the patni was again put up to sale on the 1st Jeyth 1327 B.S. under Regn. 8, 1819 and it was purchased by defendant 1. Defendant 1 being the zamindar himself, he created a patni with regard to the property in favour of defendant 6. The present suit was brought on the 18th May 1921. The question is as to the nature of the suit. The plaintiffs originally brought the suit as one for a declaration that the sale on the 1st Jeyth 1327 is illegal and void and does not affect the plaintiffs' right. They alleged that they, the plaintiffs, ware in possession notwithstanding the regulation sale; and they made various statements as regards the right of defendants 2 to 5 to the property in question and also with regard to the service of notices required under the regulation. There was also a prayer for confirmation of possession. Various questions were raised in the trial Court. The Subordinate Judge decided the important issues against the plaintiffs and dismissed the suit. The principal questions decided by him were that the plaintiffs were out of possession and could not therefore maintain a suit for a merely declaratory decree under Section 42, Specific Relief Act; that defendant 2 was entitled to bring the patni to sale under Regn. 8, 1819; and that the notices required to be served under the regulation were duly served.
2. Against that decree only plaintiff 2 preferred an appeal to the Court of the District Judge. Plaintiff 1 was not a party to the appeal either as appellant or as respondent. Before the appellate Court the appellant, plaintiff 2, only applied for amendment of the plaint. Notwithstanding the objection of the respondents the learned Judge allowed the amendment asked for, which was to this effect : That if the Court holds that tha plaintiffs were dispossessed by the defendants a decree for khas possession may be made in favour of the plaintiffs and the plaintiffs may be directed to pay the ad valorem Court-fee. This amendment was made on the 29th April, 1924. After having allowed the amendment the District Judge wa3 of opinion that the question as regards the maintainability of the suit did not: any longer arise. He next decided the other questions raised in the case, namely, first, whether the predecessor of defendants 2 to 5 had any right to put up the property to sale under Regn. 8, 1819; and, secondly, whether the usufructuary mortgage in favour of the predecessor of those defendants was invalid and void in law. These two questions he decided again3t the plaintiffs. The third question was with regard to the service of the requisite notices. This he decided in favour of the appellant and thereupon he allowed the appeal and made this decree : that the patni sale in question be declared void and the plaintiffs be restored to possession of the patni mahal (as it stood before the sale in question) ousting the defendants therefrom. Defendant 6. who took the patni from defendant 1 after his auction purchase in Jeyth 1327 B.S., is the appellant in this Court and he has made plaintiff 2 and the other defendants respondents in this appeal.
3. The contention on behalf of the appellant is : first, that the suit is not a suit as contemplated under Section 14, Regn. 8, 1819 and that it is the only suit; that is allowed to the previous patnidars under the law for reversing the patni sale under the regulation. The second contention is that the amendment of the plaint ought not to have bean allowed having regard to the fast that at the time when the amendment was allowed the right of the plaintiff was barred by limitation and the valuable right acquired by defendant 6, the appellant before us, was affected by this amendment. It was also endeavoured on behalf of the appellant to show that the decision of the lower appellate Court with regard to the question of notices was arrived at upon insufficient grounds and on erroneous reasonings. With regard to the last ground it is not possible for us to examine the findings of the learned Judge in the Court below. These are questions of fact and I do not think we can interfere with his finding in second appeal even if the reasons of the learned Judge be unsatisfactory. The only questions which remain to be decided are, first, with regard to the question of amendment; secondly, whether the suit as framed is maintainable under the law.
4. Before I deal with the arguments on behalf of the appellant the ground should be cleared by disposing of two objections raised on behalf of the respondent-plaintiff 2 who will henceforth be described as the respondent. Defendant 1 appears in this Court and he supports the argument of the appellant. It is urged, first, on behalf of the respondent that this appeal is not maintainable on the ground that plaintiff 1 ha3 not been made a party respondent. Plaintiff 1 was not a party in the lower appellate Court. He did not appeal against the decree of the Subordinate Judge and it may be taken that he was content with the decree that was passed by the trial Court. It is urged that the effect of the decree of the District Judge is that it was in favour of the appellant before the Oourt, that is plaintiff 2, as well as plaintiff 1 who was no party to the appeal and that in order to have the decree set aside by his appeal here, defendant 6 was bound to implead plaintiff 1 along with plaintiff 2 in this Court. Not having done so the appeal is incompetent. In my judgment no substantial reason has been shown in support of this contention. If the appellant had impleaded that plaintiff in this Court he might have coma and said:
I have no concern with the case since it was disposed of by the trial Court. I wag satisfied with that decree and did not further question the right of the defendants the appellant having dragged rue up here unnecessarily is bound to pay me the costs, whatever might be the result of his appeal.
5. What answer then could the appellant have to that claim? No authority has been cited before us in support of the contention that the absence of that plaintiff makes the appeal infructuous. I do not therefore think that the appellant was bound to make that plaintiff a party to this second appeal and that the appeal should fail on that ground.
6. The next objection urged is this : That with regard to the application for amendment of the plaint before the District Judge he heard the pleaders of both sides and he made the order in favour of the plaintiff-appellant allowing the respondents' costs for that hearing. As the respondents have realized the costs, it is not open to them to contend here on appeal that 6he amendment was wrongly allowed. I am unable to accept this contention. If an interlocutory order is made in favour of one party but for some reason costs are allowed unconditionally to the unsuccessful party, I do not think that the unsuccessful party is precluded from questioning the order on appeal by accepting the costs of the hearing. This argument seams to me to be of no substance.
7. I shall next deal with the questions raised by the appellants namely whether the amendment was properly allowed or not and if so alloyed what would be its effect. One defeat in the order of amendment is that the plaint was the plaint of two plaintiffs. The application for amendment was made by only one of them, without any reference to the other. Whether the plaint of two persons can be amended on the application of one of them seams to be a matter of doubt, but apart from that, the question in this case is with regard to the substance of the amendment. It is argued on behalf of the appellant that this amendment takes away the valuable right which the appellant had acquired by reason of limitation. The respondent on the other hand contends that all the necessary facts were stated in the plaint and the amendment was only a varbal amendment which does not alter the nature of the suit. Strong reliance is placed on the case of Chdran Dass v. Amir Khan A.I.R. 1921 P.C. 50. It is argued that the present case bears a strong resemblance to the case before the Judicial Committee.
8. There an amendment was allowed under peculiar circumstances which was asked for in the trial Court but was refused. That case and the present seem to me to be quite different in essential matters, which I need not state in detail. It is quite true that where a suit is brought for declaration of title and confirmation of possession, the Court generally allows an amendment asking for recovery of possession if it is found necessary to give the plaintiff the appropriate relief. But the difficulty in the present case does not seem to me to lie there. The sale is in this case held under the provisions of the statute and the statute provides how a suit can be brought for setting aside a sale held under it. In my judgment a sale held under the regulation can only be set aside by a suit as provided under Section 14, Regn. Section 1819 and it cannot be challenged by proceedings of a different character. The relevant provisions of the law are contained in paras. 2 and 3 Clause 1, Section 14, Regn. 8,1819. They are these:
It shall, however, be competent to any party desirous of contesting the right of the zamindar to make the sale, whether on the ground of there having bean no balance due, or on any other ground, to sue the zimindar for the reversal of the same, and upon establishing a sufficient plea, to obtain a decree with full costs and damages. The purchaser shall be made a party in such suits, and upon decree passing for reversal of the sale, the Court shall be careful to indemnify him against all loss, at the charge of the zemindar or person at whose suit the sale may have been made.
9. Such a suit as this must be brought within one year under Article 12(d) of the Limitation Act. The limitation for this suit as originally framed is six years and the period of limitation for the suit for possession, as amended, is 12 years. This suit cannot be held to be one under the regulation. The suit was brought not only against the zamindar and the purchaser but also againsi defendant 6 who had derived his title from the purchaser as well as the previous owners of the patni before the sale of 1325. Under these circumstances it can hardly be held that the present suit as originally framed or even after the amendment was one for setting aside the sale under the patni regulation. That the District Judge who allowed the amendment did not treat the suit as such is apparent from the fact that no provision was made in his decree for indemnifying the purchaser at the auction sale. The right of the purchaser to bring a suit against the zemindar was barred when the amendment was allowed on 29th April, 1924; It cannot also be said that the plaintiffs brought the suit in the present form under any misapprehension. Suits for setting aside a patni sale are quite common and it is not explained why the suit was brought in such a form or why no proper amendment was asked for in the trial Court in spite of an objection raised by the defendants. As a rule we are always willing to allow amendment of pleadings in a proper case, and might have allowed it in this case even here, in order to make this a suit under the patni regulation had not the rights of others been prejudicially affected. Defendant 6 has paid a considerable sum of money as selami in order to obtain a patni from the zamindar. By allowing an amendment the valuable right which defendant 6 has obtained on the ground of limitation will be prejudiced. On general principles therefore such amendment should not be allowed.
10. Under these circumstances in my judgment this appeal should succeed and the plaintiffs' suit dismissed with costs Plaintiff 2 alone will be liable for the costs in this Court as well as in the lower appellate Court.
11. I agree.