JUDGMENT
L. Rath, J.
1. The plaintiff is the appellant against the reversing judgment. The suit was originally brought against Punia Sahu as defendant No. 1 and Lord Jagannath through the marfatdar Anantapuja Badapanda Samanto as defendant No. 2 for declaration of the right of occupancy over the disputed land and for confirmation of possession or recovery of possession if the plaintiff is found to be dispossessed from the disputed land during the pendency of the suit.
After stating the facts and contention of counsel His Lordship observed :’ ‘
8. Admittedly, the appeal before the lower appellate Court was dismissed for non-prosecution as against defendant-respondent No. 2 (before the lower appellate Court) and further, there was also no substitution so fir he was concerned. However, dismissal/abatement of the appeal as against defendant No. 2 has been rightly held by the lower appellate Court not to effect the merits of the appeal before him. Dispute of the plaintiff-appellant was essentially with the other defendants, for dedclaration of right of occupancy over the disputed land and for confirmation’ of his possession which right the plaintjff was claiming as against them. It is a case Where the main question to be decided is whether the plaintiff is the tenant in respect of the disputed land or whether the defendant No. 1 series are the tenants. As a matter of fact, in the entire body of the plaint, there is no allegation regarding defendant No. 2 who is the admitted landlord in respect, of the suit land and no relief is at all claimed against defendant No. 2. The very cause of action for the plaintiff for the suit was the decision in Criminal Misc., Case No. 84/64 on 8-12-1969 in which possession was delivered to the defendant No. 1. The plaintiff’s criminal revision as against such order was also dismissed on 3-12-1970 The relief which was allowed to the plaintiff by the trial Court was to the effect that he declared as the occupancy tenant and defendant No. 1, Punia Sahu being not in possession, cannot have occupancy right over the suit land. The sale by Punia Sahu to defendants 3 and 4 was thus held to be illegal and not binding on the plaintiff and hence those defendants were directed to deliver possession of the land to the plaintiff. Such facts would show that the dispute in the case strictly was one which was confined between the plaintiff on the one hand and defendants 1, 3 and 4 on the other/wherein the defendant No. 2 was merely, if at all, a proper party and the dismissal of the appeal as against him would have no effect on the maintainability of the appeal as against the plaintiff It is only if the nature and character of the tenancy of defendant No. 1 vis-a-vis the defendant No 2 would have been determined, it would have affected the interest of the defendant No. 2 and then position would have been different. The basic principle in a situation where an appeal is dismissed for non-prosecution against one of the respondents is that whether conrinuance of the appeal as against the other respondents would result in the existence of two inconsistent decrees at the same time. The question here however is not that. As has been stated above, defendant No. 2 was not a necessary party and the question whether the plaintiff is its occupancy tenant does in no way affect the defendant No. 2 since its right as landlord has not been affected in any manner. It cannot be said that since the decree passed by the learned trial Court was to the effect that the plaintiff was an occupancy tenant under the defendant No 2, and such decree was not challenged as against defendant No. 2 it became final and hence the decision of the learned lower appellate Court that the plaintiff is not the occupancy tenant under defendant No. 2 would lead to any inconsistency. The defendant No. 2 being not a necessary party at all, the determination of the question between the plaintiff vis-a-via the defendant No. 1 series does not lead to any inconsistency. In the judgment of the lower appellate Court the nature and status of the tenancy, if any, of defendant No. 1 series is not determined. The question as such is left open.
9. The position is also supported by the decisions of the Hon’ble Supreme Court AIR 1970 S. C. 809 is a case to the point. In that case the plaintiff obtained settlement from a deity in respect of certain plot of land situate in a village. The deity was 16 annas proprietor of the village. Due to changes in the channel of the river flowing between the village of the deity and another village, a portion of the land became annexed to the plot of land settled with the plaintiff. The plaintiff claimed declaration of title and possession in respect of the annexed land contending that by delusion the said land was lost to the village to which it originally belonged. In the suit, the proprietor of the other village as Well as the deity were impleaded as defendants, the deity being a proforma defendant only. The suit having been dismissed, an appeal was filed in the High Court, but however, the appeal was dismissed as against the deity for non-payment of cost by the plaintiff for appointment of the guardian-ad-Utem for the d.eity. The High Court dismissed the whole appeal as incompetent holding that the appeal had abated against the deity and as there was an issue between the contesting defendants and the deity as to whether the land in dispute appertains to the village of the deity and as that issue stood concluded against the deity by the decree of the trial Court, success in the appeal might result in inconsistency of decrees. The Supreme Court however reversed the .decision of the High Court and inter alia held that as the plaintiffs suing as tenants of the deity did not ask for the relief against the deity, they were entitled to prosecute the appeal against the contesting defendants-respondents on the question of title and possession on the allegation that the suit land appertains to the village of the deity. In the instant case, the appeal before the lower appellate Court had been carried, not by the plaintiff but by the defendants claiming themselves as tenants of the deity as against the rival claim of the plaintiff to be the tenant under the deity. Hence the position of the deity was not in any way affected. In AIR 1971 S.C. 1028 (Smt. Rani and Anr. v. Smt. Santa Bala Debnath and others) it was also likewise held that where there is no averments made in the plaint about the reasons for and the circumstances under which one party is impleaded as a defendant and no relief is claimed against such party, then the circumstance of non-impletion of heirs of such defendant in the appeal before the Supreme Court does not affect the right of the other defendants to claim that the appeal before the High Court must be dismissed.
10. In the result, the sole point “raised in the appeal having been found without any merit, the appeal is dismissed. Costs to abide the result.