In cases involving joint wrongdoers and a joint and indivisible decree, an appeal cannot proceed in the absence of some defendants if allowing the appeal would lead to two inconsistent and contradictory decrees in the same case with respect to the same subject-matter.

Raj Kishore Prasad, J.

1. This appeal, by the only plaintiff, is from a judgment of the learned Special Subordinate Judge, Ranchi, who set aside the decree of the trial Judge, in favour of the plaintiff, and, dismissed his suit.

2. The appeal in this Court has stood dismissed, as against defendants-respondents 4, 5, 6, 8, 11, 13 and 14.

3. The sole question, now, for determination, is, whether the appeal, in their absence, is competent?

4. In order to decide this question, it is necessary to mention, briefly, the facts of the case.

5. The plaintiff brought a suit, out of which the present appeal arises, for declaration of title to and recovery of possession of 2.64 Acres of land, under Revisional Survey plot No. 465 which was recorded in the survey khatian as Ghairmazrua malik, on the ground that the said land had been settled with him by the landlord of the village in which the land was situated. His case was that the defendants had forcibly, without any title, cut away the paddy standing on the land in suit, and, wrongfully dispossessed him from the same,

6. All the defendants, who were fifteen in number, including the defendants against whom the appeal has stood dismissed, who hereinafter, for the sake of brevity, will be referred to as dismissed defendants, filed a joint written statement, denying plaintiffs title to and possession over the land in suit, and, claiming those in themselves.

7. It may be stated, at this very stage, that the defendants are admittedly in joint possession of the disputed land and, none of them claimed any specified share in it, or any specific portion of it, separately and independently. All of them claimed joint title and joint possession.

8. The trial Judge, who heard the suit, in the first instance, accepted the plaintiffs case and decreed his suit in ejectment against all the defendants.

9. Against the aforesaid judgment, an appeal was carried to the court of appeal below, only by defendants 1 to 10 and 12 to 14.

10. It may be mentioned, as desired by the appellants, that, in this Court, on the report of the peon that defendant 7, respondent 7 to the appeal in this Court, was dead, a petition was filed by the appellant to the effect that defendant 7 respondent 7, who was appellant 7 in the court of appeal below, died during the pendency of the appeal in the Court of appeal below, and, therefore, substitution of his heirs was asked for, but, subsequently, the petition was not pressed. We are, therefore, not concerned with the effect of his death in the court of appeal below.

11. The court of appeal below reversed the judgment of the trial court, and dismissed the plaintiffs suit against all the defendants, including the dismissed defendants.

12. The respondents, in spite of service of notice on them, have not appeared in the appeal, and, as such, it has been heard ex parte in their absence. I had not, therefore, the advantage of hearing the respondents.

13. Mr. Shivanugrah Narain, appearing for the appellants, with his usual fairness and thoroughness, has placed points, both for and against, for my consideration, particularly because of the res-pondents being unrepresented.

14. He argued that the fact that the appeal has stood dismissed) against some of the respondents, will not be a bar to the appeal being heard against the other respondents, because all the respondents, who were defendants, were according to the plaintiff, trespassers without any lawful title, and, therefore, the dismissal of an appeal against some trespassers did not make the appeal against the remaining trespassers incompetent. In support of his contention, he relied on a Bench decision of the Allahabad High Court in Shibban V/s. Allah Mehar, AIR 1934 All 716. In that case, it was held that in a suit for possession and injunction against trespassers the mere fact that one of the trespassers has died and his heirs have not been brought on the record does not make it impossible to pass a decree in favour of the plai