A joint decree against multiple defendants cannot be divided, and if the appeal abates as to some defendants, it abates in its entirety.

1. The defendants in O.S. No.7922 of 1982 on the file of the 18th Assistant City Civil Judge, Madras, are the appellants herein. The respondent herein filed the suit for declaration of his title to the suit property, for recovery of possession and for mesne profits. The plaintiffs case is that he is the owner of the property and the first defendant is the tenant under the predecessor-in-title of the plaintiff. Defendants 2 to 5 are also in possession of the property as tenants. Since the first defendant denied the title of the plaintiff, the suit has been filed. The first defendant filed written statement claiming title to the suit property and the defendants 2 to 5 are the tenants under him. Defendants 2 to 5 also filed written statement contending that the first defendant is the owner of the property and they are the tenants under the first defendant. Further, they pleaded that they are entitled for the benefit of the Tamil Nadu Buildings (Lease and Rent Control) Act. The trial court by its judgment and decree dated 19.7.1994 has decreed the suit as prayed for, finding that the plaintiff is the owner of the property and the first defendant has failed to establish his case of adoption. As against this, the appellants herein preferred an appeal in A.S. No.237 of 1985 on the file of the City Civil Court, Madras. The lower appellate court also concurred with the findings of the trial court and dismissed the appeal by its judgment dated 29.11.1985 by modifying the decree of the trial court, whereby the first defendant was permitted to reside in the suit house for 2 1/2 years without paying any damages or mesne profits. Aggrieved by the same, the appellants herein preferred the second appeal and the respondent filed the cross-objections.

2. Pending the appeal, the first and fifth appellants were dead. C.M.P. Nos.8316 to 8318 of 1996 filed by the legal representatives of the first appellant to condone the delay in filing the application for setting aside the abatement, and to bring them on record as legal representatives as well as C.M.P. Nos.8313 to 8315 of 1996 filed by the legal representatives of the fifth appellants for the same reliefs, were dismissed by this Court by order dated 3.121996. In view of the dismissal of the above civil miscellaneous petitions, counsel for the respondent took preliminary objection stating that the respondent took preliminary objection stating that the decree of the courts below is a joint one against the appellants and since now the appeal is abated so far as the first and fifth appellants are concerned the entire appeal is liable to be dismissed and nothing survives in the appeal. On the contrary, counsel for the appellant contended that each of the appellants is in possession of the property and as such each one is liable to hand over possession. Hence, the decree cannot be said to be joint, so far as the remaining appellants are concerned, the appeal survives and argued the matter on merits. He contended that though the dispute of title is between the first appellant and the respondent herein, the other appellants have nothing to do with such dispute. They are only tenants in the suit property. The respondent had impleaded them as parties to the proceedings. The rights of the appellants as tenants have to be safeguarded. When once the appellants are admittedly tenants, eviction can be sought for only by invoking the provisions of the Rent Control Act and there cannot be a decree for recovery of possession and as such the decree of the courts below are liable to be set aside.

3. I carefully considered the contentions of both the counsel. The decree of the trial court is as follows:

"TAMIL"

From perusal of Clause 2 of the decree, it is clear that it is a joint decree against all the defendants directing them to hand over possession to the; plaintiff. Since the decree is joint, it cannot be divided and as such by the dismissal of the applications filed by the legal representatives of the