In a suit for ejectment, all persons in actual possession should be joined as parties, and the decree against one trespasser cannot be effectively executed without driving out all other trespassers squatting on the land at the time of the accrual of the cause of action.

G. K. MISRA, J.

( 1 ) THE legal representatives of defendant No. 1, defendants 2 and 3 and 5 are the appellants. The plaintiffs' suit is for declaration of title and recovery of possession of the disputed lands described in items 1 to 14 of the plaint, with a further declaration that the order (Ext. 3) passed in a proceeding under Section 145 Cr. P. C. on 8-10-48 is illegal and not binding on the plaintiffs. The plaintiffs purchased the disputed properties from defendant No. 7 on 4-6-46 by a registered sale deed (Ext. 1 ). Defendant No. 7 had the occupancy right and he had got the melavaram right in 1900 as Bajantri Jagir from the Zamindar of Sharakote on payment of quit rent. Defendants 1 to 6 trespassed upon the disputed lands. A proceeding under section 145 Cr. P. C. was started, in which possession was declared in their favour.

( 2 ) THE defendants do not raise any dispute with regard to items Nos. 3 and 13. So the plaintiffs are entitled to recover possession of these lands. Defdts. 1 to 3 claim title and possession in items 1, 2, 4 and 5 and do not claim any interest in the other lands. Defendants 4 and 5 claim title and possession in items 5 to 12 and 14 and do not claim any interest in the other lands. Defendants 6 and 7 support the case of the plaintiffs. Defendant No. 4 died during the pendency of the suit and his legal representatives were not substituted. The suit abated against defendant No. 4.

( 3 ) BOTH the courts concurrently found that defendant No. 7 had occupancy right in the disputed lands and had acquired the melavaram right from the zamindar of dharakote. Defendants 1 to 3 and 5 did not establish their title in the disputed lands. The plaintiffs had title and possession within 12 years of the suit. A decree was accordingly passed In favour of the plaintiffs for eviction against defendants 1 to 3 in respect of items 1, 2, 4 and 5. In respect of items 3 and 13 a decree was passed as no contest was raised. In respect of items 6 to 12 and 14 a decree for joint possession with the legal representatives of defendant No. 4 was granted on the finding that the suit abated against defendant No. 4. But despite the partial abatement the suit was competent against defendant No. 6.

( 4 ) MR. Dasgupta did not challenge the findings of the courts below that the plaintiffs had title to the suit lands and possession within 12 years of the suit. He raised two contentions -- (1) The suit having abated against defendant No. 4 the entire suit was incompetent, and (2) Even if the suit was not incompetent against defendants 1 to 3, it was incompetent against defendant No. 5.

( 5 ) THERE is no dispute that the suit abated against defendant No. 4. The contention that the suit was wholly incompetent on account of partial abatement is not correct. Defendants 1 to 3 raised contest with regard to items 1, 2, 4 and 5 in which defendants 4 and 5 did not claim any interest. The plaintiffs can therefore have a decree with regard to these lands, and there is no question of incompetency of the suit relating to those. Mr. Das Gupta fairly did not press this argument.

( 6 ) I would proceed now to examine if the suit becomes incompetent against defendant No. 5 on account of its abatement against the legal representatives of defendant No. 4. Under Order 22, Rule 4 (3) C. P. C. where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant. There is no further provision in Order 22 as to what would happen so far as the other defendants are concerned. It is however well settled that whether the suit would proceed against the other defendants or not would depend upon the nature of the cause of action and the relief sought. Order 1, Rule 9 C. P. C. throws certain light on the question also. It prescribes that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regar