JUDGMENT :- This second appeal arises out of a suit for partition. The plaintiff respondent claimed a 10 annas share in the property in suit. The defendants appellants contended that the share of the plaintiff was 6 annas only. The trial Court held that on merits the evidence justified the finding that actually the share of the plaintiff was only 6 annas and not 10 annas. In the lower appellate Court, this finding of the trial Court was not challenged by the plaintiff in support of the decree which had been passed by the trial Court in his favour holding that his share was 10 annas. On facts, therefore, there is a concurrent finding by the two lower Courts that the plaintiffs share is actually six annas only.

Both the lower Courts, however, held that the defendants were not entitled to challenge the claim of the plaintiff for the 10 annas share on account of a decision by the Special Judge in proceedings under the Encumbered Estates Act. It appears that the plaintiff had applied under S. 4, Encumbered Estates Act on 27-10-1936, and in his written statement under S. 8 he showed a 10 annas share in this property. The whole 10 annas share was published in the notification under S. 11 and no objection under S. 11 was filed by the defendants within the time allowed. The objection was filed beyond time and was ultimately rejected on the ground of its being time barred.

Consequently the 10 annas share shown by the plaintiff in his written statement under S. 8 and notified under S. 11 was determined by the Special Judge to be liable to attachment, sale or mortgage in the debts of the plaintiff who was the landlord applicant. The plea was that this determination by the Special Judge operated as res judicata or in any case barred any plea from the defendants that the share of the plaintiff was 6 annas and not 10 annas.

2. When this appeal came up for hearing a preliminary question arose as to whether this appeal was competent and could be heard by this Court when two persons who were parties in the lower Courts were not served and were exempted from the appeal. These two persons were Jagannath Singh and Dr. Shyam Manohar, who were originally impleaded as respondents 2 and 3 in the memorandum of appeal. At one stage due to non-service on them, the Court called upon the defendants appellants to have service effected on these two respondents by publication and to take steps for that purpose within ten days. This order was passed on 20-3-1952. The order also directed that, in case steps were not taken within ten days, these two respondents would be discharged.

No steps were taken within the ten days allowed and, consequently, under the orders of the Deputy Registrar dated 7-4-1952. these two respondents were discharged. The Deputy Registrar merely carried out the order of the Court which, had directed the discharge of the respondents on default occurring in taking steps within the time allowed. The question thus was whether in the absence of these two respondents the appeal was still competent. It has to be noticed that the defendants appellants in this appeal only challenge the preliminary decree under which the share of the plaintiff respondent has been declared to be 10 annas in the property in suit and desire that that share should be determined to be 6 annas.

If this appeal is allowed, the order passed by this Court will benefit all persons who were defendants in the suit and against whom partition was sought. In the suit, there was no question of determination of the shares of the defendants, inter se, in the property left after separating the plaintiffs share. If the share of the plaintiff is reduced from 10 annas to 6 annas, a 10 annas share instead of a 6 annas share will remain out of which all the defendants would get their shares and such a decree would, therefore, enure to the benefit of defendants Jagannath Singh and Dr. Shyam Manohar also. It can in no way prejudicially affect their rights in the property in suit.

Consequently, un

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