JUDGMENT

Agarwal, J - This second appeal by the plaintiffs arises out of a suit brought by them for possession of some trees and groves in three villages Bela Pachhim, Mltthanpur and Purwa Udayram. The plaintiffs' allegation was that they had acquired the property in suit by means of a deed of gift dated 30th October 1936, executed by the defendant Maheshwar Panday in their favour and it was registered on 12th December 1936, and that defendant 1 had unlawfully taken possession of the plaintiffs' share shortly before the institution of the suit. The suit was contested by defendant 1 and he pleaded that he had acquired the property in dispute from Maheshwar Panday by means of a deed of gift dated 5th November 1936, which was registered on 6th November 1936, and that as his deed became complete before the plaintiffs' deed of gift was complete, they did not acquire any title. It was also pleaded that he was the owner of some trees irrespective of Maheshwar Panday and that the suit was bad inasmuch as all the cosharers had not been made parties to it.

2. The learned Munsif held that Maheshwar owned a half share in the trees of the grove in suit except 441/2 and 448 of Bela Pachhim and he transferred his share to the plaintiffs by means of the deed of gift dated 30th October 1936 and that defendant 1 owned some trees in groves No. 1243 of Bela Pachhim and No. 125 of Purwa TJdayram. He also held that the plaintiffs' deed of gift was prior to that of the defendant and the defendant did not acquire any title under his gift. He therefore decreed the suit for actual possession of one-half share in the trees except Nos. 441/2 and 448 of Bela Pachhim and for joint possession of the trees in suit of grove No. 1243 of Bela Pachhim and No. 125 of Purwa Udayram. Defendant 1 appealed to the learned District Judge. He dismissed the appeal but held that as all the cosharers had not been made parties, the plaintiffs were entitled only to a decree for joint possession. Defendant 1 has filed a cross-objection. His contention is that as all the cosharers were not made parties to the suit, it ought to have been dismissed, that the deed of gift which was the title of Maheshwar's predecessor was not proved that the original was not produced and the Court wrongly allowed it to be proved by secondary evidence, that the Court in holding that the deed of gift was proved disregarded the provisions of Section 68, Evidence Act, that the title of Maheshwar to the property in question was not proved and that his deed of gift being registered before that of the plaintiffs, it ought to have prevailed over the plaintiffs' deed. The question of limitation was also raised, but it was not pressed.

3. The points which I have to consider are:(1) Have the plaintiffs proved their title to the property in question? Was the lower Court right in allowing the deed of gift dated 8th January 1918 in favpur of Rameshwar brother of Maheshwar to be proved by secondary evidence? Was the deed properly proved? (2) Whether the deed of gift in favour of the plaintiffs is prior to that of the defendants? (3) Whether the suit ought to have been dismissed as all the cosharers were not made parties?

(4) Whether the plaintiffs are entitled to a decree for joint possession or to one for exclusive possession.

4. The plaintiffs' case is that one Nanku was owner of the property in suit and he executed a deed of gift in respect of it in favour of Rameshwar on 8th January 1918 and Rameshwar died leaving two brothers Basdeo and Maheshwar and they as donees of Maheshwar are entitled to half of the property in suit. Both the Courts have found that the plaintiffs have proved that Maheshwar had a share in all the plots in suit except two. The suit in respect of these two plots has been dismissed and I am not concerned with them in this appeal. This is a finding of fact and as such binding on me in second appeal. It is argued that there is no evidence to prove that plot No. 372 belonged to Maheshwar's