1.This appeal has arisen out of a suit which was instituted by the plantiff for khas possession, on declaration of his title. The allegations in the, plaint were that the land in suit formerly belonged to one, Demon, Sheikh that by successive transfers it eventually came to belong to the plaintiff and he was in possession of it till he was dispossessed by the defendants. The defence was that the holding was a non-transferable occupancy holding and the plaintiff acquired no title by his purchase, nor was he in possession thereof. Two of the defendants were minors, whose natural guardian did not appear though served with summons, and through some mistake on the part of the officers of the Court the matter was not put up before the Court for proper orders and the plaintiff being unaware of the fact that the natural guardian had not appeared did not take steps to have a guardian appointed by the Court. The trial Court overruled the defence on the merits and finding the facts in plaintiff's favour dismissed the suit as regards the minor defendants namely defendants 3 and 7 as they were not represented and decreed the suit as against the other defendants declaring the plaintiff's title and ordering that the plaintiff do get possession by eviction of those defendants. An appeal was preferred by the defendants against whom that decree was passed, but it was unsuccessful. They have then preferred this second appeal.
2. The contention of the appellants is that the suit was not maintainable in the absence of defendants 3 and 7, who were co trespassers as parties defendants and that the decree passed against the appellants is one not warranted by law. The contention is amply supported by the decision of this Court in the case of Arunodoy Chakravarti v. Mahommad Ali A.I.R. 1928 Cal. 133 and must be given effect to.
3. The question then arises as to the proper order that should be passed. The Subordinate Judge appears to have been of the view that if the plaintiff has preferred a cross appeal he would have allowed the plaintiff an opportunity to proceed with the suit after getting defendants 3 and 7 properly represented therein. While we agree with the Subordinate Judge in holding [that the plaintiff was not to blame for non-representation of defendants 3 and 7 in the suit and consequently that such an opportunity should be given to him, we are unable to hold that it was necessary or at all open to the plaintiff to prefer a cross-appeal. It is true that in the formal decree that was drawn up the suit against defendants 3 and 7 was dismissed, but the dismissal in our opinion was not a decree within the meaning of Section 2(2) of the Code. As regards these defendants there was no adjudication, far less any expression of an adjudication, determining the rights of the parties with regard to any of the matters in the suit. It merely struck those defendants out of the suit as being persons who were not really before the Court and is widely different from an order which purports to strike out a defendant on the ground that no cause of action has been made out against them, Idan Khan v. Mendi Lal  8 I.C. 409 or an order striking out from the array of parties a defendant as an unnecessary party and dismissing the suit as against him, Rama Rao v. Raja of Pittapur  42 Mad. 219, which orders clearly fail within that definition. No appeal therefore in our opinion lay from that part of the Munsiff's decision and the plaintiff could not have preferred a cross-appeal.
4. In our judgment therefore the proper order to pass in this case is to set aside the decrees of both the Courts below and remand the suit to the trial Court so that the plaintiff may now get defendants 3 and 7 properly before the Court and proceed with it.
5. Costs incurred in this litigation up till now shall be costs in the cause.