JUDGMENT
1. The plaintiff who is the appellant before us instituted the suit for recovery of possession of certain, property mortgaged to him with possession and for damages for wrongful trespass committed by defendants Nos. 1 to 3 and in the alternative for a decree on the mortgage. In the Court of the District Munsif, the plaintiff obtained a decree against 1st defendant mortgagor for the amount of the mortgage plus the sum of Rs. 180 as and for damages and so far as the 2nd defendant was concerned the decree against him was confined to a sum of Rs. 90 probably as being, half the amount of the damages caused to the plaintiff by the trespass complained of. The lower Appellate Court on the ground that the plaintiff’s suit was a simple mortgage suit and finding that defendants Nos. 2 and 3 were claiming title to the property on a paramount title held that they were not proper parties and reversing the decree of the District Munsif dismissed the suit against defendants Nos. 2 and 3.
2. On this appeal by the plaintiff the objection is taken that under the provisions of Section 99 of the Civil Procedure Code it was not competent to the lower Appellate Court to reverse the decree passed by the District Munsif on the mere ground of misjoinder of parties and causes of action, more especially, when there is no finding by the lower Appellate Court that such misjoinder affected the merits of case or the jurisdiction of the Court. There is no reason to believe that the misjoinder of parties and causes of action has had any such effect. The lower Appellate Court was also clearly wrong in regarding the plaintiff’s suit as one only on the mortgage. It was primarily a suit for the recovery of possession of the property and for damages. We are, therefore, of opinion that under the terms of that section it was not competent to the lower Appellate Court to reverse the decree passed by the District Munsif. The appeal is, therefore, allowed and the judgment and decree passed by the lower Appellate Court are set aside, The case is remanded to the lower Appellate Court for disposal according to law on the other questions that arise in the case with regard to which the lower Appellate Court has not come to any determination. Costs of this second appeal will abide and be provided for by the final order to be passed by the lower Appellate Court. The Court-fee paid by the appellant to this Court will be refunded to him.
