JUDGMENT
1. The plaintiffs instituted a suit on the 11th of October, 1924, for a declaration that certain transfers made by Musammat Parbati, widow of Jawahir Lal, were void and ineffectual against the plaintiffs and for possession of some of the properties left by Jawahir Lal.
2. Jawahir Lal died leaving a widow Musammat Parbati and a sister Musammat Bano. His property consisted of a house, two shops and a plot of waste land situate in Mandavi Rexganj, one of the Muhallas of Sirsaganj, Pargana Shikohabad in the District of Mainpuri. He also left a dwelling house situate in Dayaganj, another Muhalla of Sirsaganj. Upon the death of Jawahir Lal his estate devolved upon his widow Musammat Parbati. On the 22nd of February, 1909, Musammat Parbati executed a deed of gift of the entire estate belonging to her husband in favour of Jwala Prasad, her brother. Jwala Prasad is alleged to have taken possession of this property on the death of Musammat Parbati. Jwala Prasad sold the house in Dayaganj to Jiwa Ram defendant No. 2 under an instrument dated the 3rd of October, 1913. Jiwa Ram under a sale-deed dated the 18th of November, 1916, sold it to Jhandu who was impleaded as defendant No. 5 in the suit as originally brought. Jhandu was dead at the date of the suit. His sons Atwari and Pokha were brought upon the record as defendants Nos. 5 and 5-A under an order dated the 20th of November 1924. After Jwala Prasad's death his mother Debiji, who is defendant No. 4, came into possession of this property. She sold the waste land to Bhagwan Das, husband of defendant No. 3, on the 10th of July, 1920. She sold the remaining property of Jawahir Lal to her daughter Musammat Saraswati on the 4th of August, 1920.
3. Musammat Parbati died on the 24th of January, 1913. Plaintiffs claim to be the sons of Musammat Bano and as such the Bister's sons of Jawahir Lal. They impugn the various transfers referred to above as having been made without any legal necessity and, therefore, not binding upon them.
4. The suit was contested by Musammat Saraswati defendant No. 1 and by Atwari son of Jhandu, defendant No. 5. The common ground of defence was that the plaintiffs were not the legitimate sons of Musammat Bano and were not the reversioners of Jawahir Lal as sister's sons under Hindu Law. Atwari pleaded for himself and his brother Pokha that the estate having fallen into possession more than twelve years before the day when he and his brother were impleaded, the claim was statute-barred. The Court of first instance sustained the plea of limitation with regard to these two defendants and dismissed the suit as against them. The claim was decreed against the remaining defendants upon the ground that the plaintiffs had succeeded in establishing the pedigree and that the transfers made in favour of the other defendants or their predecessors-in-title were not supported by legal necessity.
5. The decree of the trial Court was passed on the 28th of November, 1925. Shortly after this Musammat Saraswati created a deed of endowment of certain property including a portion of the property in dispute (which had passed to her under the sale-deed, dated the 4th of August, 1920, which has already been referred to) in favour of Sri Thakur Behariji Maharaj. No less than nineteen persons were appointed ' Sarbarahkars' under the deed of endowment. An appeal was filed against the decision of the trial Court by Musammat Saraswati, by Sri Thakur Behariji Maharaj and the nineteen Sarbarahkars. The other defendants to the action filed no appeal. They were not made pro forma respondents in Musammat Saraswati's appeal and it must be taken that they submitted to the decree of the trial Court.
6. It may be conceded that between the contesting defendants there was a community of interest in so far that they denied the plaintiff's title to the property as reversioners of Jawahir Lal. The property, however, which was sought to be recovered consisted of different portions which had passed into the possession of different transferees under several instruments of transfer. One set of defendants had no interest in the property which belonged to the other sets of defendants.
7. The lower Appellate Court reversed the findings of the trial Court in support of the plaintiffs' pedigree and had no hesitation in holding that Piare Lal and his brother Neksu were not the sister's sons of Jawahir Lal. The result of this finding was that the appeal of Musammat Saraswati was allowed but curiously enough the Court dismissed the plaintiffs' suit in its entirety.
8. Piare Lal and some of his transfrees pendente lite have preferred this appeal from the judgment of the learned. District Judge of Mainpuri) dated the 12th of February, 1927, on the ground that the other defendants not having impugned the decree of the trial Court, not having preferred either an appeal or cross-objection, and not having been impleaded in the appeal before the lower Appellate Court, it was beyond the competency of the latter Court to upset the decree of the trial Court as regards those defendants.
9. It is not apparent why the decree of the trial Court was discharged in its entirety. The point is not discussed in the judgment. No reason whatsoever had been assigned and it is not improbable that the entire suit was dismissed by the lower Appellate Court by a pure oversight.
10. Reliance, however, has been placed upon Order XLI, Rule 33 of the Code of Civil Procedure in support of the decree now under appeal. Under this rule, the Appellate Court has power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The scope of this rule was discussed by a Full Bench of this Court in Rangam Lal v. Jhandu 11 Ind. Cas. 640 : 34 A. 32 : 8 A.L.J. 1111 and it was held that it was not competent to the Appellate Court acting under Order XLI, Rule 33 to interfere with the decree obtained by plaintiff in so far as it had not been challenged by the defendant. In Gajan Singh v. Ata Husain 60 Ind. Cas. 817 : 43 A. 320 : 19 A.L.J. 83 a Bench of this Court ruled that the Appellate Court in the appeal preferred by some of the defendants in respect of only a part of the decree could not by virtue of the provisions of Rule 33 have dismissed the suit against those defendants who had in fact submitted to it. Mohsham Ali Khan v. Muloo 91 Ind. Cas. 347 : 48 A. 551 : 24 A.L.J. 586 : A.I.R. 1927 All. 37 was not a case exactly in point but the ratio of this decision supports in principle the contention advanced by the appellant. The point was considered by a Bench of this Court of which one of us was a member, in Rukia v. Mewa Lal 111 Ind. Cas. 751 : 26 A.L.J. 1139 : A.I.R. 1928 All. 746 : 51 A. 63. It was held in this case " that the word 'parties' in Order XLI, Rule 33 was not intended to connote persons other than those who had been arrayed as appellants or respondents in the appeal. We must keep in view the entire scheme of Order XLI. We must also consider the significance of the word ' parties ' in Order XLI, Rule 30 of the Code of Civil Procedure. Where one of the co-plaintiffs has failed to appeal from the dismissal of his claim and the time allowed by the law of limitation for the presentation of the appeal has expired, the necessary consequence is that an important substantive right has accrued in favour of the defendant. The unsuccessful co-plaintiff is not a party to the appeal which has been preferred by the unsuccessful defendant against the successful co-plaintiff. The determination of this rights title or interest in the property is not necessary for the grant of proper or adequate relief to the parties actually before the Appellate Court. The law of limitation has completely run out against him and the decree against him has become final. He has not paid the necessary Court-fee for an appeal on his behalf. In view of all these circumstances it would be extremely difficult to hold that the Legislature could ever have intended to extend Order XLI, Rule 33 to a person so situated as the co-plaintiff who did not appeal". In Madan Lal v. Gajendrapal Singh 116 Ind. Cas. 436 : (1929) A.L.J. 344 : A.I.R. 1929 All. 243 : Ind. Rul. (1929) All. 564 : 51 A. 575 the point now in controversy did not arise. In the body of the judgment is to be found the following observation: "But the rule by using the expression 'in favour of all or any of the defendants or parties, in favour of any of the respondents or parties' seems to implicate that the rule shall not be used to the prejudice of a person who is not a party to the appeal. This is consonant with equity". It is submitted that it is equally consonant with equity that the rule should not be invoked in favour of a party who has preferred neither an appeal nor a cross objection. It is further to be noticed that the learned Judges who decided this case have not considered the decision of the Full Bench of this Court in Rangam Lal v. Jhandu 11 Ind. Cas. 640 : 34 A. 32 : 8 A.L.J. 1111 which is binding upon us as a Division Bench.
11. The result is that we allow the appeal in part and affirm the decree of the lower Appellate Court by dismissing the plaintiffs' claim against Musammat Saraswati and her transferees who were arrayed as defendants appellants in the lower Appellate Court. The decree of the trial Court as against the remaining defendants stands untouched The appeal is dismissed against the defendants with costs subject to the observations contained above.