Mungeshwar Sahoo, J. – Since the first appeal filed by the plaintiffs has been dismissed, the cross-objection filed by respondent No.1 has been listed for final hearing.

2. The first appeal was filed by the plaintiffs appellants against the judgment and decree dated 26.11.1971 passed by the learned Additional Subordinate Judge, Darbhanga in Partition Suit No. 176 of 1965/ 49 of 1968.

3. The plaintiffs appellants filed the aforesaid suit claiming partition to the extent of 8 anna share in the suit property. The defendant No.9 Mohd. Yusuf intervened and filed application for being impleaded as party respondent. The defendant Nos. 7 and 8 also filed written statement. They are the purchasers.

4. After trail the trial court held that the plaintiffs have not been able to prove their title and possession to the extent as clamed as such there is no unity of title and possession. Accordingly dismissed the plaintiffs’ suit. However, in the last three lines of paragraph 16 the trial court observed that in view of the existence of Bymokasa it cannot held that Biltu acquired interest by inheritance to the extent alleged by the plaintiffs and on the other hand title and possession of defendant No.9 over 9 kattha stands proved. The cross-objection has been filed by the original respondent Mr. Habiburrahman @ Biltu.

5. The learned counsel Mr. Jitendra Kishore appearing on behalf of the cross-objector submitted that the dispute was between the plaintiffs in the one side and the respondents in the other side. The trial court resolved this dispute and dismissed the plaintiffs’ suit but while dismissing the plaintiffs’ suit the trial court without there being any counter claim or dispute between inter se defendants decided the title between the defendant No.1 and defendant No.9. The learned counsel further submitted that the defendant No.9 was added under Order 1 Rule 10 C.P.C., therefore, the dispute inter se defendants could not have been decided.

6. On the other hand, the learned senior counsel Mr. Keshav Srivastava appearing on behalf of the respondents submitted that the cross-objection by the respondent against the respondent is not maintainable. The learned counsel further submitted that since the appeal has been dismissed as incompetent therefore, also the cross-objection is not maintainable because Order 41 Rule 22 sub-rule 2 Clause 4 provides that if the original appeal is withdrawn or is dismissed for default then also cross-objection be heard but in the present case neither original appeal has been withdrawn or has been dismissed for default.

7. In view of the above contentions of the parties, the point arises for consideration in this cross-objection is, as to whether this cross-objection is maintainable and if maintainable then whether the part of the judgment against which cross-objection has been filed is sustainable or not?

8. Admittedly, the first appeal has been dismissed as become incompetent as a whole on 7.2.2000 for non-compliance of the peremptory order directing the appellants for taking steps for issuance of appeal notice on the respondent 1 series and respondent No.9(f).

9. Order 41 Rule 22 sub-rule 2 Clause 4 reads as follows : –

“whether in any case in which any respondent has under this Rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit.”

10. According to the learned counsel for the respondent No.11(C) who was one of the heirs of original defendant No.9 that the appeal has not been withdrawn or it has not been dismissed for default is concerned, in my opinion, the word “dismissed for default” has not been used here for the limited purpose. Admittedly, the appellant was directed to take steps for notice on the respondents and when no steps were taken the appeal was dismissed against the heirs of respondent No.1. Since the suit was partition suit this