JUDGMENT Gangeshwar Prasad, J.
1. This is an appeal from an order of remand passed by the learned Civil Judge of Aligarh in an appeal arising out of a suit for injunction and demolition.
2. Briefly stated the case of the plaintiff was as follows: A certain plot of land and a well situate therein belonged to the plaintiff who was formerly a Zamindar and had after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act become a Bhumidhar of the said plot. The well had four pulleys and the plaintiff had been irrigating his field from the eastern pulley's. Another pulley of the well had been in the use of defendant No. 1 and yet another in the use of defendants Nos. 2 to 4. In or about 1946 the defendants obstructed the irrigation of plaintiff's field from the well. This led to the institution of a suit by the plaintiff against the defendants. That suit was decreed but, in spite of it, about a year prior to the institution of the present suit the defendants built a Chabutra on the well and fixed a Persian wheel there without the permission of the plaintiff. These acts of the defendants had the effect of obstructing the irrigation of the plaintiff's field from the well. The plaintiff accordingly filed this suit for the removal of the Persian wheel and for the demolition of the Chabutra, as also for an injunction restraining the defendants from interfering with his right of irrigating his field. The suit was contested by all the defendants. It is unnecessary to mention the defence in any detail and it is sufficient to say that the defendants denied the allegations of the plaintiff and pleaded that the plaintiff was not entitled to the reliefs claimed by him.
3. It appears that the plaintiff made some default in the prosecution of his case against defendants Nos. 2 to 4 with the result that on 15-7-1958 the trial Court dismissed the suit against the said defendants. Later, when the trial court came to consider the effect of the dismissal of the suit against defendants Nos. 2 to 4, it came to the conclusion that having regard to the nature of the suit no effective decree could be passed against defendant No. 1 after the dismissal of the suit against defendants Nos. 2 to 4 and it dismissed the suit against defendant No. 1 also. On appeal by the plaintiff the lower appellate court disagreed with the view taken by the trial court and held that on the facts and circumstances of the case an effective decree could be passed against defendant No. 1 in spite of the dismissal of the suit against the other defendants for default of prosecution. The appeal was accordingly allowed, the decree of the trial court was set aside and the case was remanded to the trial court for being disposed of on merits against defendant No. 1. It is against this order that the present appeal has been preferred.
4. It was contended by the learned counsel for the defendant-appellant that according to the case set out in the plaint all the defendants were joint trespassers and since even it a decree is passed against the appellant it will not be capable of being executed the suit has to be dismissed also against the appellant I was further contended that a decree against the appellant in terms of the relief prayed for by the plaintiff would be inconsistent with the dismissal of the suit against the other defendants and as such no decree can he passed against the appellant. Neither of those contentions appears to me to be sustainable. The questions, which these contentions raise have been discussed at length in the Division Bench case of Himanshudhar Singh v. Ram Hitkari AIR 1968 All 496 and it is therefore unnecessary for me to enter into a discussion of those questions. In the above quoted case it was held by this Court that a decree passed against a co-trespasser would be an effective decree as between him and the plaintiff even though the other co-trespassers ceased to be parties to the suit as a result of the suit having abated against them. The position, in my view, would not be different where instead of the suit having abated against the remaining co-trespassers it had been dismissed against them for default of prosecution.
The considerations on which the argument far a total dismissal of the case is supported in the present (case?) were precisely those which were utilized in the argument for a total dismissal of the suit in the case of AIR 1968 All 486. It was however held that those considerations did not warrant the dismissal of the suit against the defendant who was still before the court, nor would a decree passed against him be in any manner inconsistent with the abatement of the suit against the co-trespasser. It is true that in that case there was no allegation that the defendants were acting in conceit as is the allegation in the present case. The decision of the case, however, did not turn on that feature of the case at all, but was made to rest on the principle that it was open to a plaintiff to sue only one of the co-trespassers, and obtain a decree against him. It was observed that the effect of a suit having abated against one out of this two or more defendants is exactly the same as if he had not been impleaded as a defendant at all. Likewise the effect of the dismissal of a suit for default of prosecution against some of the defendants is exactly the same as if they had not been impleaded as defendants at all. If a decree against a co-trespasser sued alone could have been passed, there is no reason why a decree cannot be passed against him because the other co-trespassers had also been originally impleaded as defendants but the suit was dismissed against them for default of prosecution.
Whether or not those co-trespassers against whom the suit has been dismissed for default of prosecution will allow the decree to take effect or whether they will create obstructions in obedience of the decree by the defendants against whom the decree is obtained are entirely irrelevant considerations in adjudging the lights of parties actually present before the Court. The decree, in case if comes to be passed, will be an effective decree against the appellant and in judging whether a decree can or cannot be passed the Court will not take into account the possible attitude of the persons who are not before it as parties. On account of the dismissal of the suit for default of prosecution against the other co-trespassers no decree can be said to have been passed in their favour, and if a decree is ultimately passed against the appellant it will not be a decree inconsistent with any other decree in regard to the same subject matter. The suit has, therefore, to be disposed of on merits as against the defendant-appellant. The order of remand passed by the lower appellate court does not call for any interference and it was indeed the only proper order to be passed.
5. The appeal has no force and it is accordingly dismissed with costs.