JUDGMENT

Zafar Ali, J. - This was a suit for possession of 434 square yards of abadi and the plaintiffs' case was that this land formed part of a plot which was allotted to them and had been in their possession in accordance with the decree for partition that they had formerly obtained.

2. The defendants pleaded, inter alia, ignorance of that decree. In the partition suit the parsons impleaded as defendants being no less than seventy-nine, the plaintiffs were allowed on their application under Order 1, Rule 8, Civil P.C., to nominate three of the defendants to defend the action on behalf of all, but notice of this suit was given to all the defendants. Further, Mehnga Singh and Bir Singh who are defendants in the present case stated to the commissary in the partition suit that they had no objection to partition. They were, therefore, bound by the decree in that case.

3. Further, it is clear that the plaintiffs were already in possession of the plot that was allotted to them on partition and it was not, therefore, necessary for them to take out execution of the decree for partition to obtain possession of that plot. The small area now in dispute was lying waste and it follows that it remained in possession of the plaintiffs till the defendants encroached upon it by erecting a wall around it. In view of these facts the Courts below have overruled the defendants' pleas.

4. In second appeal it is urged that Order 1, Rule 8, Civil P.C., does not apply to defendants in a partition suit because they cannot be said to have "the same interest in the suit." This contention is not supported by any authority and the paragraph at p. 383, Mulla's Civil P. C under the head--"Different interests" is misleading and the rulings--referred to under it, i.e., Kalihanta Surma v. Gouri Prosad Surma [1890) 17 Cal. 906 and Sadu v. Ram [1892] 16 Bom. 608, do not lay down any such proposition. As a matter of fact, Order 1, Rule 8, Civil P.C., is not referred to therein at all.

5. Counsel for the appellants concedes, that the finding that the defendants' possession was only recent, cannot be interfered with being a finding of fact. The appeal, therefore, fails and I dismiss it with costs.