1. This is an appeal by defendants Nos. 6 and 7 against a decision of the District Judge of Backergunge, modifying a decision of the Subordinate Judge of the First Court at Backergunge. The suit out of which this appeal arises was brought by the plaintiffs for partition. The share of the plaintiffs was not challenged in the suit by any of the defendants but the real dispute was between the defendants Nos. 6 and 7 on the one hand and defendants Nos. 5, 8 and 38 on the other. The dispute being that the defendants Nos. 5 and 7 contended that one Mahammed Waris had two brothers whereas defendants Nos. 5, 8 and 38 said that he had only one brother. The learned Judge in the Court below decided against the contention of the defendants Nos. 6 and 7 and he has held that Mahammed Waris had only one brother.
2. This appeal is preferred, as I have already stated, by defendants Nos. 6 and 7, but they have omitted to make parties the plaintiffs in the suit. Their reason being that there was no dispute with regard to the plaintiffs share and that accordingly it was riot necessary to make the plaintiffs parties to the appeal. This is clearly wrong. In a partition suit it is necessary for all persons interested in the property to be before the Court and this is equally so if there is an appeal from the decision of the first or second Court with regard to the decision on the claim. It may be, of course, that if the plaintiffs had been made parties to the appeal they would not have contested the appeal as their share was not challenged. This makes no difference, in my opinion, and the appeal is incompetent unless all persons interested are made parties to the appeal, either as appellants or respondents. It was urged before us that the matter may stand over for sometime in order that the plaintiffs may now be added as respondents to the appeal. But we see no reason why we should now allow them to be brought on the record after the time allowed by law for the appeal has lapsed.
3. The result, therefore, is that the appeal comes before us as incompetent and we see no reason why we should follow the course suggested by the learned Vakil for the appellants and allow the plaintiffs now to be brought on the record.
4. The appeal accordingly fails and is dismissed with costs.