Chatterji, J.This is an appeal by the plaintiff who brought a suit for partition of a rent-free tenure consisting of village Mirdih in the District of Manbhum. The village has been recorded in the Record of Rights published in 1920 as comprised of 24 khewats, namely Khewats Nos. 2-1 to 2-24. The tenure formerly belonged to a family of three brothers Buchu, Dakshin and Gandhu. In course of time, the shares of all these brothers passed into the hands of outsiders. On 23rd September 1935, the plaintiff who is the landlord of the village purchased the two-thirds interest of the first two brothers in execution of three decrees for arrears of cess obtained against the recorded tenure-holders.

2. The defendants on the other hand originally obtained a mokarrari lease of Gandhus one-third share but subsequently purchased that share at an execution sale on 30th August 1890. The position therefore is that the plaintiff is now the holder of the two-thirds share of Buchu and Dakshin and the defendants of the one-third share of Gandhu. The suit was defended mainly on the grounds: (1) that there was a previous partition between the three brothers Buchu, Dakshin and. Gandhu long ago; (2) that the plaintiffs purchase of the two. thirds share of Buohu and Dakshin was not valid as the decrees for cess were "without jurisdiction" and null and void;" and (3) that the defendants acquired partly by settlement and partly by purchase some lands from the branches of Buchu and Dakshin and have been in possession of those lands adversely for a long time.

The learned Subordinate Judge tried the suit, overruling all these defences, passed a preliminary decree for partition. On appeal by the defendants the learned District Judge has reversed the decree except with regard to the lands recorded in ijmal Khewat No. 2-24 area 21.99 acres. Hence this second appeal by the plaintiff.

3. The first point raised by Mr. S.M. Mullick on behalf of the appellant is that the appeal before the District Judge was not competent. It appears that during the pendency of that appeal one of the appellants, Rakhal Mahto, who was defendant 5 died on 18th July 1937 and without his heirs being brought on the record, the appeal was decided on 27th September 1937, that is to say within the period allowed for substitution. Mr. Mullicks contention is that after the death of Rakhal the appeal could not proceed in the absence of his heirs because in a partition suit all the co-sharers are necessary parties. He relies on the cases in Churaman Mahto v. Bhatu Mahto AIR (1935) Pat 241 , Mahammad Abjal and Another Vs. Hafizannessa Khatun and Others, and Naimuddin Biswas and Others Vs. Maniruddin Lashkar and Others, .

4. In the Patna case a suit for partition having been dismissed the plaintiffs appealed and during the pendency of the appeal one of the respondents died and no substitution of his heirs having been made within the prescribed period the appeal stood abated against him. The question then arose whether the appeal could proceed against the remaining respondents. It was held that it could not, because no decree for partition could be passed in the absence of any co-sharer.

In AIR Mahammad Abjal v. Haflzannessa Khatun AIR (1926) Cal 741 it was laid down that an appeal in a partition suit is incompetent unless all persons interested are made parties to the appeal either as appellants or respondents. There a suit for partition having been decreed, some of the defendants preferred an appeal without impleading the plaintiffs as parties as the con-test was limited to the question of shares as between the defendants inter se. The appeal was held to be incompetent for want of necessary parties though the plaintiffs share might not have been disputed, the object of the appeal was to obtain a decree for partition after determining the shares of the defendants inter se. This case therefore is only an illustration of the principle that no effective decree for partition can be passed unless all the co-sharers are before the Court.

In Naimuddin Biswas and Others Vs. Maniruddin Lashkar and Others, the suit was one u/s 106, Ben. Ten. Act, for correction of the Record of Rights on the allegation that the rent was really Rs. 7 and not Rs. 10 as entered in the record. The suit was dismissed by the trial Court and on appeal it was decreed. The landlord-defendants then appealed to the High Court. During the pendency of the appeal in the High Court one of the appellants died and his heirs not having been substituted, the appeal abated so far as he was concerned. The respondents then contended that the whole appeal must fail. This contention was accepted on the ground that if the appeal were allowed to proceed as regards the surviving appellants and ultimately it succeeded, the result would be that there would be two contradictory decrees, one which stood against the deceased appellant declaring that the rent was Rs. 7 and the other which would be passed in favour of the surviving appellants to the effect that the rent was Rs. 10. Malik J., one of the Judges who decided the case, observed that the true test for determining whether the appeal is competent after partial abatement is whether, having regard to the nature of the suit and the decree made, the appeal can be heard in the absence of the heirs of the deceased appellant. The position in the present case is different. The trial Court passed a decree for partition and that decree was challenged in appeal by all the defendants. The decree proceeded on grounds common to them all and so also were their grounds of appeal. They were therefore entitled to the benefit of Order 41, Rule 4, Civil P.C., which runs as follows:

Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all it defendants, any one of the plaintiffs or of the defendants, may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

5. If; is no doubt true that in a suit for partition no decree can be made in the absence of any cosharer. But it does not follow that a suit for partition cannot be dismissed against an absent defendant. Here the purpose of the appeal was to obtain a reversal of the decree for partition and dismissal of the suit. This purpose could be gained by the surviving appellants continuing the appeal after Rakhals death. Indeed the heirs of Rakhal could complain, had the result of the appeal been to their detriment, that the Court should not have heard the appeal without waiting for the prescribed time for substitution. The plaintiff however cannot make any grievance out of this. In this connexion reference may be made to the cases in Chintaman Nilkant v. Gangabai (1903) 27 Bom 284 , Ram Sewak v. Lambar Pande (1902) 25 All 27, Somasundaram Chettiar v. Vaithilinga Mudaliar AIR (1918) Mad 794 and Satulal Bhattacharjee and Others Vs. Asiruddi Sheikh, .

6. The facts in the Bombay case were that a suit for partition having been decreed, two of the defendants filed a joint appeal and pending its hearing one of them died without her representative being brought on the record. The surviving appellant proceeded with the appeal which was ultimately allowed and the suit was dismissed. On second appeal by the plaintiffs, it was contended that the lower Appellate Court ought not to have heard the appeal as it had abated. This contention was overruled and it was held that as the two defendants had appealed on grounds common to them both, the Court had power to hear the appeal and deal with the whole suit.

7. The suit in Ram Sewak v. Lambar Pande (1902) 25 All 27 was also a suit for partition. The suit was decreed by the trial Court and on appeal by the defendants one of them died pending its hearing and her heir not being substituted within time, the appeal, so far as she was concerned, abated. The contention was raised that the whole appeal abated. This contention was given effect to; but on second appeal the High Court overruled it. The case in Somasundaram Chettiar v. Vaithilinga Mudaliar AIR (1918) Mad 794 related to a suit by Hindu reversioners for recovery of possession of properties said to have been improperly alienated during the lifetime of the limited owner. The suit having been decreed, some of the defendants appealed. Two of the appellants died and their representatives were not brought on the record. It was contended that the appeal, having abated so far as those two were concerned, could not proceed as regards the surviving appellants. This contention was overruled and their Lordships said:

The grounds of appeal in which the appellants have succeeded are common to all the appellants and we think the terms of Order 41, Rule 4, Civil P.C., are wide enough to cover this case and enable this Court to set aside the decree as regards the whole of the plaintiffs claim and not merely in respect of the interest of these appellants whose appeals have not abated.

8. In Satulal Bhattacharjee and Others Vs. Asiruddi Sheikh, which related to a suit for ejectment, the question arose whether an appeal which was preferred by the defendants could proceed after partial abatement due to the death of some of them. Their Lordships, applying the provisions of Order 41, Rule 4, Civil P.C., held that the appeal could proceed at the instance of the surviving appellants. They however accepted as correct the statement of law made by Mallik J. in Naimuddin Biswas and Others Vs. Maniruddin Lashkar and Others, that the true test is whether the appeal can be heard in the absence of the appellant who is dead. The principles deducible from all these decisions including those oited by Mr. Mullick may be thus stated: (1) In a partition suit no effective decree can be made unless all the co-sharers are before the Court. (2) In an appeal from a decree, which proceeds on grounds common to all the appellants, if there is partial abatement owing to the death of some of them, the surviving appellants may continue the whole appeal. (3) Where the decree appealed from is of such a nature that the hearing of the appeal after partial abatement may result in the passing of two inconsistent decrees, the whole appeal must fail.

9. In the present case there was no abatement of the appeal on the death of Rakhal, because before the time for abatement came, the appeal was heard and decided. The whole appeal was still pending and the question is whether the Court could hear it in the absence of Rakhals heirs. The answer to this is to be found in the second of the above-stated principles which may very well be applied here, though it is not a case of any abatement. The contention that the appeal was incompetent must therefore be overruled.

Coming to the merits of the appeal, it is necessary to mention certain facts. Out of the twenty, four Khewats Nos. 2-1, 2-13 and 2-22 appear to have been recorded separately in the names of the plaintiffs prede-cessors-in interest and No. 2-24 is recorded ijmal. Almost all the remaining twenty, covering a total area of 284.10 acres, were recorded in the names of the representatives of the third branch. The plaintiff in execution of his decrees for arrears of cess purchased khewats Nos. 2-1, 2-13, 2-22 and 2-3rds share in the ijmal khewat No. 2-24.

10. According to the defendants they acquired by settlement or purchase some of the lands from the branches of Buohu and Dakshin. These lands, it is said, form part of 284.10 acres included in the remaining twenty khewats. The plaintiff claims that he purchased the undivided 2-3rds share of Buchu and Dakshin in the entire village and is therefore entitled to partition of the lands comprised in all the twenty-four Jhewats. The learned District Judge has dismissed his claim for partition except with regard to the lands of Khewat No. 2-24 on the finding that there was a previous partition.

11. Apparently, this is a finding of fact, but Mr. Mullick wants to assail it on the ground that in coming to this finding the learned District Judge has committed an error of law. He argues in the first place that the learned Judge has merely relied on the entries in the Record of Bights, but those are not conclusive proof of partition. The learned District Judges judgment however shows that in dealing with the question of previous partition, he considered the various documents in detail and after having done so came to the following conclusion:

Broadly speaking the documentary evidence shows that for the last 90 years or so there has been separate possession of lands, and each branch of the family dealt exclusively with the lands in their own possession.

12. He therefore held that at least as regards the lands recorded separately, there could be no re-partition. There is no error of law in this finding. It is next contended that the learned District Judge did not take a correct view of the effect of a judgment in previous suit inter partes. That suit was brought in 1895 by the predecessors-in-interest of some of the present defendants for a declaration of their exclusive title to a tank on the ground that it was included in their share which was allotted to them by partition which took place long ago, this partition being the same as that alleged in the present suit. On a reference to the appellate judgment Ex. 7, it appears that the Appellate Court dismissed the suit mainly on the ground that the plaintiffs failed to discharge the burden of proving that they had title to the disputed tank. In. the present suit the trial Court took the view that the decision in the said suit of 1895 operates as res judicata. The learned District Judge has dissented from that view but it is said that the reasons given by him are not supportable in law. This may be so, but it is clear that the previous decision cannot operate as res judicata for the simple reason that the previous suit was decided by a Munsifs Court which had no-jurisdiction to try the present suit. Mr. Mullick then contends that although the previous decision may not operate as re& judicata, it is a very strong piece of evidence.

13. In support of this contention, he relies on the Privy Council decision in Midnapur Zamindari Co., Ltd. v. Naresh Narayan Roy AIR (1922) PC 241 and refers to the following passage:

Their Lordships do not consider that this will found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the rinding against them j but it is the finding of a Court which was dealing with facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellants to displace the rinding, a duty which they have not been able to perform.

This decision must be read with reference to the facts of that case. The question as to the probative value of a finding in a previous suit depends on the nature of the finding and of the issues involved in the two different suits. In the present case, the judgment of the trial Court in the suit of 1895 has not been produced and we do not know what were the issues framed there Looking to the Appellate Courts judgment, Ex. 7, it appears that the real question for consideration in the present suit was not at all in issue in the earlier suit.

14. As I have already pointed out, the Appellate Court dismissed the suit on the finding that the plaintiffs failed to discharge the burden of proving their title. The broad question as to whether there was a partition of the entire village does not appear to have been considered or decided. The previous decision therefore is hardly of any assistance in the present suit. This is the view which the learned District Judge has apparently taken and there is nothing wrong in it.

Mr. Mullick next attacks that part of the judgment of the District Judge where he says that even if it were held that there had been no partition, this suit cannot succeed in its present form. In dealing with this aspect of the case, it is said, the District Judge lost sight of the distinction between the landlords interest and the tenancy right with respect to those lands of which the defendants took settlement from the two branches of Duchu and Dakshin. Mr. Mullicks argument is that in those lands the defendants have only tenancy right while the plaintiff has the superior interest, and the claim for partition being in respect of the superior interest, there is no reason for refusing partition of those lands.

15. Indeed, the learned District Judges observations in this connexion may be open to some criticism; but the question does not arise in view of his finding that there was a previous partition. What he really means is that if the plaintiff has any superior right in respect of the lands which are in the possession of the defendants in tenancy right, the plaintiff may seek his remedy otherwise but not in a simple suit for partition. A further question was raised as to what was the effect of the sales in execution of the decrees for cess. On the one hand, it was contended that they had the effect of rent sales under the provisions of Section 208, Chota Nagpur Ten. Act; on the other hand, that they were sales in execution of money decrees. This question is of no consequence because the suit must fail on the ground that there was a previous partition. The appeal must therefore be dismissed with costs.

Rowland, J.

16. I agree, and on the merits of the appeal have nothing to add. But, on the preliminary point that it was not competent to the District Judge to decide the appeal in the absence of the legal representatives of defendant 5, Rakhal, I may indicate my view, as the point is of some importance. Mr. Mullick for the appellants sought to bring the matter within the rule that a decree against a dead man is void; and relied on Order 22, Rule 3 and the decisions under that rule. He argued that in a partition suit as in a mortgage suit all the persons having an interest in the property are not only proper but necessary parties; and that in the absence of any one of such parties, no new decree could be passed in appeal changing the title or status of the absentee, as declared by the Court below. Where the absentee is a respondent, there is abundant and uniform authority for saying that the decree cannot be changed to his disadvantage without his having an opportunity of being heard; and in cases where an appeal has become defective through the death of a respondent, (he being a necessary party to the suit) it has always been held that such an appeal cannot proceed in the absence of his heirs. The appeal having abated against the deceased is no longer properly constituted and the whole appeal must fail.

17. This was, for example, the position in Kalidyal Bhattacharjee v. Nagendra Nath Pakrasi AIR (1920) Cal 264, a decision the correctness of which, I have no wish to question. Following this decision in Midnapur Zamindari Co., Ltd. v. Naresh Narayan Roy AIR (1922) PC 241 the same rule was applied to the case where the deceased had been an appellant. It was said that the appeal of the deceased haying abated, the appeal in his absence was incompetent and could not proceed: it was said that the appeal of one appellant being dismissed that of the remainder could not be allowed for the result would be that there would be contradictory judgments on the same point.

But the position where the constitution of a suit or appeal has become defective through the death of a defendant or a respondent against whom relief being claimed, has in other decisions been distinguished, from the case where the consequences of the death of an appellant are to be considered. In the latter case, it has been held the surviving appellants can invoke the aid of Order 41, Rule 4, of the Code, if the decree appealed from proceeds on a ground common to all the plaintiffs or to all the defendants. The condition was fulfilled here. The decision in Naimuddin Biswas and Others Vs. Maniruddin Lashkar and Others, was considered in a later case of the same High Court in Satulal Bhattacharjee and Others Vs. Asiruddi Sheikh, , where it was held that the appeal did not abate as a whole and that, the appeal succeeding, the appellate decree enured for the benefit of all the appellants including the deceased.

18. The judgment approves the decision in the Madras High Court in Somasundaram Chettiar v. Vaithilinga Mudaliar AIR (1918) Mad 794, which followed earlier decisions in Ram Sewak v. Lambar Pande (1902) 25 All 27 and Chintaman Nilkant v. Gangabai (1903) 27 Bom 284. The same principle has been applied, to an appeal in a mortgage redemption suit in Maung Byaung v. Maung Shawe Baw AIR (1924) Ran 876.

I am of opinion that we ought to follow those decisions, that Order 41, Rule 4 gives a discretionary power to an Appellate Court to save the rights of parties from being defeated by a purely technical objection, and that this was a case within both the letter and the intention of the Rule. In the case before us, it is to be noted that the appeal to the District Judge can in no sense be held to have abated because it was disposed of before the expiry of the time prescribed for making an application to substitute the heirs of the deceased.

19. No objection as to defect of parties was taken at the hearing before the District Judge; if it had been taken, there was time to remedy it. In the memorandum of appeal to this Court, no mention is made of this alleged defect in the constitution of the appeal before the lower Appellate Court; and I think it relevant to refer to Order 1, Rule 9 and Order 1, Rule 13. Order 1, Rule 9 lays down the principle that:

No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

The principle is subject to necessary exceptions; but it seems to be the declared policy of the Legislature to limit rather than to enlarge these. And Order 1, Rule 13, says that:

All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity....and any such objection not so taken shall be deemed to have been waived.