1. Both these appeals are against the orders of remand passed by the lower court in two connected appeals arising out of two suits for redemption of mortgages with respect to two separate portions of the same property. The suit properties belonged to Ayani Madom tarwad. In partition of the said tarwad as per Ext. Al of the year 1104, Sy. No. 127/1F-5 acres in extent was allotted to the share of one Pennamma. After her death, her legal heirs assigned the property to the plaintiff as per Ext. All dated 30-2-1122. The plaintiff executed two mortgages Exts. A5 and A6 in respect of two separate portions of the property. The mortgage rights now vest in the 1st defendant. Both the suits are for redemption of the mortgages Exts. A5 and A6 and for recovery of possession of the respective portions of the property mortgaged. Defendants 2 and 3 who according to the plaintiff are in possession of the land on the east of the suit properties, are impleaded in both the suits as they are laying claim to portions of land in Exts. A5 and A6 and are attempting to trespass upon the same.

2. The 1st defendant admits the plaintiffs title and has no objection in the suits being decreed for redemption and recovery of possession of the properties mortgaged. Both the suits were contested by defendants 2 and 3. According to them they are in possession of 5.47 acres of land after having obtained assignment from other sharers who got the same allotted in partition of Ayani Madom tarwad. The description of the property mentioned in the suit takes in also lands in their possession held under a different title. They deny the plaintiffs title and contend that the plaintiff is not entitled to a decree for recovery of possession of the properties from them.

3. Issue 1 in both the suits relates to the identity of the property sought to be redeemed and issue 2 relates to the question as to whether the mortgage deeds had taken effect. Issue No. 3 in both the suits was as to whether the property claimed by the plaintiff is in the possession of defendants 2 and 3, and whether the rights if any of the plaintiff is lost by adverse possession and limitation. On Issues 1 and 2, the trial court entered the following finding:

"Prom the above stated evidence and circumstances in these cases I find that the plaintiff has no idea of the plaint schedule properties in both the suits and the title deed in favour of the plaintiff and the mortgage deeds in favour of the mortgagees did not come into effect and neither the plaintiff nor the mortgagees got possession of the plaint schedule properties as per those documents".

Issue 3 was answered as follows:

"Since the plaint schedule property itself is not ascertainable it cannot be said whether any portion of the plaint schedule property comes within the property in the possession of defendants 2 and 3"

On these findings the suit was dismissed.

3. The lower appellate court as per its common judgment in A. S. Nos. 80 and 97 of 1977 has set aside the judgment and decrees in both the suits and has remanded the cases to the trial court directing that court to pass preliminary decrees in both the suits for redemption of the mortgages Exts, A3 and A6. The decision of the lower appellate court is based on its order in I. A. Nos. 9386 and 9385 of 1977 in both the appeals, filed by the plaintiff for removal of defendants 2 and 3 from the array of parties in the suit. According to the lower appellate court, defendants 2 and 3 who claim title in derogation of the title of the plaintiff-mortgagor are unnecessary parties to the suit for redemption of the mortgages executed by the plaintiff and the rival title set up by the plaintiff on the one hand and defendants 2 and 3 on the other is to be decided in a separate suit between them. It is against these orders of remand that defendants 2 and 3 have come up in appeal.

4. Learned counsel for the appellants submits that the plaintiff having impleaded defendants 2 and 3 in the suits and having failed before the trial court to get his title established cannot be permitted to withdraw the suits against defendants 2 and 3 at the appellate stage, depriving these defendants of the benefits of the decision in their favour. The learned counsel for the appellant relies on the decision of this Court in Raman v. Meenakshi Amma (1963 KLT. 937) in support of his proposition. In that case for realisation of money due under a mortgage executed by the predecessors in title of defendants 1 to 6, defendants 7 and 8 were impleaded as persons claiming absolute and rival title to the suit property. Defendants 7 and 8 contended that the property had devolved on the 7th defendant by inheritance and the 8th defendant as her assignee was absolutely entitled to the property. Both the courts below found that the mortgagors namely the predecessors in title of defendants 1 to 6 were entitled to 2/3 shares in the suit property, and a decree was granted for sale of the aforesaid share in enforcement of the mortgage. In Second Appeal by the 8th defendant it was contended that he was an unnecessary party to the suit based on the mortgage executed by the predecessors-in-title of defendants I to 6 and the finding against him that the mortgagors are entitled to 2/3 share should be vacated and the parties should be directed to establish their title, in a separate suit. Distinguishing the decision of a Division Bench of this Court in Janaki Amma v. Venkittasubba Iyer (1957 KLT 1097) Raghavan J. (as he then was) held as follows at page 940:

"8. Having raised and obtained a decision adverse to him, the 8th defendant cannot now claim that he was an unnecessary party to the suit and he should be removed from the party array."

The learned judge has referred to the decisions in Mat. Satwati v. Kali Shankar (AIR 1955 A11.4), Bhuban Mohan Ghose v. Co-operative Hindustan Bank Ltd., (AIR. 1925 Cal. 973) [LQ/CalHC/1925/16] , Radha Kunwar v. Thakur Reoti Singh (ILR. 38. All. 488) and M. Doraiswami Aiyangar & Bros. v. P. Varadarajulu Naidu (AIR. 1928 Mad. 2) [LQ/MadHC/1927/402] . In all these decisions referred to by the learned judge the view expressed was that in a suit based on mortgage even though a person claiming title adverse to the mortgagor is not a necessary party but an issue had been raised on the question of title and a decision on the merits had been given with such person on the array of parties, the decision is binding on the parties and it cannot be said that the court in deciding the question of title went beyond its jurisdiction or did anything which was so improper or illegal that a court of appeal should interfere,

5. In the decision in Janaki Amma v. Venkitasubba Iyer (1957 KLT.1097) the suit was on a simple mortgage where the 19th defendant who was not a person interested either in the equity of redemption or in the mortgagees interest was made a party. She set up title to item 1 in the suit adverse to the mortgagors, and disputed the plaintiffs right to get a decree charged on the said item. According to the plaintiff, the 19th defendant was only the successor-in-interest of a prior lessee in possession of the property. This Court in appeal held that the 19th defendant is an unnecessary party to the suit to enforce the mortgage, to which she is not a party and stated thus at page 1102:

"This is not a suit for recovery of possession of the mortgaged property in which case it can, perhaps, be contended that a person in possession is a necessary or desirable party in order to enable the plaintiff to get an effective decree in execution of which he can recover possession of the property. As this is only a suit by a simple mortgagee for mortgage money and the decree to be passed in it can direct only the sale of the mortgagors right, title and interest, it is unnecessary to have on the party array a person claiming the mortgaged property by title paramount to the mortgagor or adversely to him. The simple mortgagee will get a cause of action against the person claiming the property by title paramount or adversely to the mortgagor only after he purchases the property in execution of his decree for the mortgage money. If the mortgagor pays the mortgage money at any time before the execution sale the mortgagee will have no right at all to the property, and so the question of possession becomes material only after he purchases the property and gets the right to ask for actual possession."

It was in this view of the matter that the Division Bench held that the 19th defendant who set up a rival title to the mortgaged property was an unnecessary party to the suit for enforcement of the mortgage.

6. In the decision reported in M/s. Hulas Rai Baij Nath v. Firm K. B. Bass and Co. (AIR. 1968 SC. 111) [LQ/SC/1967/180] the Supreme Court after referring to the observations of the Madras High Court in Seethai Achi v. Meyappa Chettiar (AIR. 1934 Mad. 337) [LQ/MadHC/1934/45] that in partnership suits and suits on accounts the defendants will be entitled to some relief in their favour and the withdrawal of the suit by the plaintiff cannot end in the dismissal of the suit, stated thus at page 113:

"We do not think, as urged by learned counsel, that the learned judges of the Madras High Court were laying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiffs withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such a right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstances mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties. In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit."

The above passage gives an indication that once a suit has ended in a decree it cannot normally be permitted to be withdrawn at the appellate stage; In the decision of the Supreme Court in Ramamurthi Aiyar v. Raja F. Rajeswara Rao( (AIR. 1973 SC. 643) [LQ/SC/1972/379] the suit was for partition of a cinema theatre, its building and appertinent land together with the furniture and equipments into two shares and for allotment of one snare to the plaintiff. There was a specific plea in the plaint that having regard to the nature of the property it was hot possible or feasible to divide it into two halves by metes and bounds and hence the court in exercise of its inherent jurisdiction should direct the properties to be sold in public auction and pay the plaintiffs half share from the proceeds of the sale. The defendant raised the plea that in the event of the court finding that the suit property is incapable of division, he should be permitted to purchase the plaintiffs share at I a value to be fixed by the court as provided for in S.3 of the Partition Act. Even before a preliminary decree was passed the plaintiff applied for withdrawal of the suit under 0.23, R.3 CPC. The trial court permitted withdrawal of the suit. But in appeal, the High Court held that the defendant was entitled to have the question raised under S.3 (1) of the Partition Act considered and decided in the suit itself, as the plaintiff had invoked the provisions of S.2. The appeal was accordingly

allowed, and the trial court was directed to restore the suit to file, frame additional and necessary issues and to proceed to dispose of the suit in accordance with law, taking into consideration also the prayer made by the defendant for relief under S.3(1) of the Partition Act. Confirming the decision of the High Court, the Supreme Court stated at page 649 as follows:

"12. Coming back to the question of withdrawal of a suit in which the provisions of S.2 and 3 of the Partition Act have been invoked, we find it difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under S.2 of the Partition Act and the defendant has applied to the court for leave to buy at a valuation the share of the plaintiff under S.3. In England the position about withdrawal has been stated thus, in the Supreme Court Practice 1970 at page 334:

"Before judgment. Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him."

As soon as a share holder applies for leave to buy at a valuation the share of the party asking for a sale under S.3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made. This advantage, which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of S.3(1) it would only enable the plaintiff to defeat the purpose of S.3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under S.2 instead of partitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendants claim which, according to Crump J., cannot be done even in a suit where the provisions of the Partition Act have not been invoked."

In the present case, defendants 2 and 3 had gained the advantage of a decree against the plaintiff on the question of title to the disputed property. It is true that these defendants were not necessary panics to the suit for redemption of the mortgages Exts. A5 and A6. The reliefs asked for in both the suits were also for recovery of possession and it is for that reason that defendants 2 and 3 were impleaded as persons claiming adverse title and possession of portions of the suit property. The plaintiff having invited a decision adverse to him, cannot therefore be allowed to withdraw the suits against defendants 2 and 3 at the appellate stage. The lower appellate court was therefore wrong in allowing I. A. Nos. 9386 and 9385 of 1977 filed by the plaintiff-appellant seeking withdrawal of the suit against defendants 2 and 3. I therefore set aside the remand orders passed by the lower appellate court in both the appeals and direct that Court to dispose of the appeals on the merits.

Both the appeals are allowed. There will be no order as to costs.