JUDGMENT Banerji and Aikman, JJ.
1. The suit which has given rise to this appeal was brought by Musammat Asghari Begam and Musammat Akbari Begam, the daughters of one Masum Ali, for possession of a half share of an exproprietary holding, 17 bighas 7 biswas in extent, and for dispossession of the defendants from that share, the allegation being that the defendants had taken possession of the whole of the holding. The plaintiffs also claimed mesne profits. The plaint contained a prayer to the effect that the plaintiffs might be granted any other relief which might, in the opinion of the Court, be deemed just and proper. The Court of first instance gave the plaintiffs a decree for joint possession of 15 million odd sihams out of 76 million odd sihams. From this decree the plaintiffs appealed. The lower appellate Court decreed their claim for possession of a half share out of the whole and also for mesne profits. The defendants have preferred this second appeal. One of the appellants Musammat Said-un-nissa died after the institution of the appeal, and although six months have expired from the date of her death, no legal representative has been brought on the record in her place. On this ground it was contended on behalf of the respondents that the appeal had abated. We are unable to accept this contention. Said-un-nissa was sued as a pro forma defendant, and the lower appellate Court found that she had ceased to have any interest in the property. It is clear that the other defendants could have maintained the appeal even if she had not joined them. Under these circumstances we cannot hold that the appeal of the other defendants has abated. It of course abates so far as it is an appeal by Said-un-nissa.
2. The first plea in the memorandum of appeal is based upon the provisions of Section 32 of the Tenancy Act which says that no suit for the division of a holding Shall be entertained in a Civil or Revenue Court. The decree of the lower appellate Court awarding to the plaintiffs possession of a half share and directing the dispossession of the defendants from the share is substantially a decree for the division of the holding. This, according to the language used in Sub-section (2) of Section 32, is a decree which no Court, Civil or Revenue, can pass. It may be that the intention of the Legislature was to forbid the institution of a suit for the division of a holding as against the landholder only, but the language used in the said sub-section is general and does not give effect to any such intention. The plaintiffs, however, in their plaint ask for such other relief as the Court might deem fit to grant; and, therefore, if they are entitled to any other relief, it would be only just that such relief should be decreed to them. The Court below has found that the extent of the plaintiffs' share in the holding in question is half. That finding is based upon evidence, and is conclusive in this second appeal. Upon that finding the plaintiffs are entitled to a declaration that they have a right to a half share in the holding jointly with the defendants Nos. 1 to 4 and this declaration, we think, is what ought to have been granted in the present suit.
3. The second plea taken in the memorandum of appeal is based upon a misconception.
4. The third and fourth pleas are concluded by the findings of the Court below.
5. The fifth plea has in our opinion no force. Upon the finding of the Court below the plaintiffs are entitled to the mesne profits awarded to them. We therefore vary the decree of the Court below to this extent that, in lieu of the decree for possession of a half share in 17 bighas 7 biswas and dispossession of the defendants from that share, we make a decree declaring the plaintiffs entitled to a half share in the said land jointly with the first four defendants. In other respects we affirm the decree of the Court below. We direct the parties to bear their own costs in this Court.