1. This is a second appeal in a suit instituted by the plaintiffs-appellants, to recover possession of five bighas land on declaration of their jote right which was created by a patta, dated the 2nd Kartick 1294, granted by the pidnidar. The suit was originally decreed against the seven defendants, including the defendant No. 7 Tarak Nath Chowdhury, who is the respondent in this appeal, and against whom the suit was decreed ex parte, on the 29th September 1902. The defendants Nos. 1 and 4 preferred an appeal from that decree, but it was dismissed on the 12th February 1903, and on the plaintiffs taking out execution, the objections of the defendants were disallowed (by the Munsif) on the 11th March 1905 and (by the Subordinate Judge) on the 15th July 1905. Meanwhile, on the 23rd April 1903, the defendant No. 7 applied under Section 108 of the old Code of Civil Procedure, to have the ex parte decree set aside as against him, and his prayer was granted by the Munsif on the 23rd December 1903. The suit then proceeded, with the result that it has been dismissed against the defendant No. 7 by both the lower Courts.
2. Plaintiffs appeal, and, on their behalf, it has been contended, first, that the order of the Munsif of the 23rd April 1903, setting aside the ex parte decree against the defendant No. 7, was passed without jurisdiction because the original decree had already beet affirmed on appeal; secondly, that at all events, the entire suit should not have been dismissed, the proper procedure being, to have ascertained the share in the disputed land, of the defendant No. 7 and to have dismissed the suit to the extent of his shall and, thirdly, that the lower appellate Court has fallen into error in estimating the value of the evidence, including the report of the Civil Court Commissioner who conducted an enquiry after the revival of the suit.
3. There is no force in the third contention. The case involves a consideration of the precise situation of the plaintiffs' jote land; and, though the eastern boundary was, originally, the one in dispute, the Subordinate Judge, concurring with the Munsif, has placed the jote land on the west of the disputed land. This finding has been arrived at on the whole evidence it is fortified by other fact, also, found, that the plaintiffs suit is barred by limitation.
4. We have permitted the first contention to betaken at this late stage of the litigation because it involves a question of jurisdiction and an important point of law. The validity or otherwise of this contention depends upon the question whether the entire decree of the first Court, i.e., the decree: against all the defendants including defendant No. 7 or a portion of that decree, i.e., the decree against defendants Nos. 1 and 4 who contested the suit, and also appealed from the decree, merged in, and was superseded by the decree of the appellate Court.
5. The plaintiffs asked for a joint decree against all the defendants alleging that they had jointly dispossessed them (the plaintiffs) from the land. The decree which the Court passed thereon was a joint, decree against all the defendants, and it proceeded on the ground common to all the defendants, namely, that they had no title to the land and that they had unlawfully dispossessed the plaintiffs from it.
6. It is conceded that if instead of affirming the decree of the first Court, the appellate Court had reversed the same on the appeal of two of the defendants, it could, under Section 544 of the old Code, have reversed it in favour of all the defendants.
7. But the appellate Court could have no authority to do this unless it had acquired Jurisdiction over the entire subject-matter (even though the appeal had been lodged by two of the defendants only) and was competent -to come to a determination in regard to the same as between all parties to the suit. Once, such jurisdiction is vested in the appellate Court for the purpose of deciding whether it should reverse, modify or affirm the decree of the first Court, it must continue to exist during the process of judicial deliberation (else it would have, no jurisdiction to reverse or modify the decree), and it would be illogical to suppose that the Court lost such jurisdiction the moment it pronounced an order of affirmance.
8. It necessarily, follows that after appeal had been preferred, the first Court cannot, in a case such as the present, continue to exercise jurisdiction at the instance of any of the defendants, against whom it has passed an ex parte decree, and arrive at a judicial conclusion which, may possibly be in conflict with the decision of the appellate Court. The ruling of the Madras High Court in the case of Sankara Bhatta v. Subraya Bhatta 30 M. 535 : 17 M.L.J. 436, supports our view., The case of Monomohini Chowdhurani v. Nara Narayan Roy Chaudhri 4 C.W.N. 456, is distinguishable as it proceeded on the assumption that the decree of the 1st Court was, divisible and all that this Court was asked to of was to set aside the order of the first Court made under Section 108 of the old Code, in so far as it set aside the original decree against the contesting defendants after it has been affirmed by the appellate Court.
9. In this view it is unnecessary to discuss the second contention.
10. Giving effect, to the first contention, therefore, we decree this appeal and the suit of the plaintiffs with costs in all the Courts.