1. In this case, three plaintiffs brought a suit in ejectment against certain defendants making the case that the defendants were occupying the land in suit by erection of huts and living therein by permission of the plaintiffs, that they had been in the plaintiffs’ employ but that the defendants had procured an entry to be made in the Record-of-Rights in which they were recorded as tenants of defendant 3. Accordingly, it appears that the permission for continuing the occupation had been determined and the plaintiffs brought their suit for ejectment of defendants 1 and 2. The first Court dismissed the plaintiffs’ suit holding that the defendants had been in possession adversely for a sufficiently long period to bar the plaintiffs’ claim. An appeal was taken by all the three plaintiffs to the lower appellate Court and then one of the plaintiffs died. No steps were, however, taken by the other plaintiffs-appellants to have the representatives of the deceased plaintiff added as parties appellants. In these circumstances, time having elapsed so that the appeal as regards the deceased plaintiff had abated, a question arose in the lower appellate Court whether the whole appeal had become incompetent; and the learned Additional District Judge of Jessore being of opinion that the whole appeal had become incompetent dismissed it without entering into the merits.
2. In this appeal, it is argued before us that the whole appeal had not become incompetent and that it was possible for the surviving plaintiffs to proceed with the appeal in order that they might in the appellate Court obtain a decree for being put in possession jointly with the defendants of the land in suit. The main principle on which they rely is the principle laid down by Sir Richard Garth in the ease of Radha Prosad Wasti v. Esuf  7 Cal. 414. On the other hand, it has been contended oa behalf of the respondents that the cases of Kali Dayat v. Nagendra Nath  24 C.W.N. 44, Manindra Chandra Nandi v.Bhagabati Debi A.I.R. 1926 Cal. 335, Naimuddin Biswas v. Maniruddin Lashkar , Mindapur Zemindari Co. v. Amulya Nath Roy A.I.R. 1926 Cal. 893, as also the earlier case of Dharanjit Narayan Singh v. Chandeshwar Prosad Narain Singh  11 C.W.N. 504, show that this appeal had become incompetent and for two reasons, first of all, because the suit as framed would have been defective in the absence of the deceased plaintiff and secondly, because, if the judgment of the trail Court must stand so far as regards the deceased plaintiff, then should this appeal be entertained and be successful, there would be conflicting and contradictory decisions in the same suit about the same subject-matter.
3. The question is one which is likely to arise in many cases and it is necessary to decide the matter on principle. It appears to me to be strictly speaking true that the suit as framed would have been defective in the absence of the deceased plaintiff. That is because it was a suit in ejectment and the joint title of the three plaintiffs and the right of the three plaintiffs to possess were clearly not vested in two of them alone. On the other hand, it is to be remembered that in a suit for ejectment by two out of three persons entitled remedy may be given by a decree for joint possession. It often happens that a plaintiff sues for has possession and gets a decree for joint possession, particularly, where it is possible to specify the share. I think, however, that it is clear that, in the absence of the deceased plaintiff’s representatives, the other plaintiffs had not an absolute right to go on with the appeal. They could only go on with the appeal, if it seemed fit to the Court to allow them to go on to get a somewhat different form of relief to that which they originally claimed. I see no difficulty in the matter. I do not think that mere difference as regards the relief claimed in the plaint and the relief now sought, the difference between khas possession and joint possession, is in itself sufficient to debar the Court in a proper ease from permitting the plaint to be amended, if that would enable the appellant to go on.
4. It is said, however, that there is another reason why the appeal could not be entertained. That is because the decision with reference to the deceased plaintiff in the trial Court would be contradictory to the decision as regards the other plaintiffs if this appeal should succeed. I am not impressed with that argument. It appears to me that this is a case where the claim has simply been dismissed. What has been determined as regards the deceased plaintiff is that he is not one of three persons entitled to eject the defendants. In my opinion, this is not a case where there would be such a contradiction as would make it impossible to proceed with the appeal. It is a different matter when the suit is for a declaration that a certain entry in the Record-of-Rights should be corrected from one thing to another In that case, it may well be that much anomaly would be produced by endeavouring to prove one state of things for one purpose and another state of things for another purpose. All that happened here was that, as the result of the trial Court’s decision, the deceased plaintiff was held entitled to no relief at all as against the defendants. I see no practical reason why this appeal should not go on.
5. It will be observed from the cases referred to above that not one of them is a ease where one of the plaintiffs appellants died pending the appeal from a decree of simple dismissal of the suit. It is a very different matter when complaint has to be made that the party has not impleaded one of his adversaries. In all the cases to which I have referred, except, I think, in the case reported in 32 Calcutta Weekly Notes 299, the defendants were appealing and one of the plaintiffs-respondents had died without his heirs being substituted. In my judgment, it is not necessary or desirable that the law should regard the appeal as incompetent unless there is sound reason in principle.
6. In this case, it seems to me that the correct order would be to give liberty to the appellants to amend their plaint by seeking for joint possession only and to do that on terms that they must pay costs in all the Courts including this Court. On these terms, it seems to me that there is no reason why the appeal should not be allowed to proceed as an appeal in a case where the claim is for joint possession. I do not think that the mere fact that there has been no enquiry as to the extent of the surviving plaintiff’s share would be any difficulty. The plaintiffs may, if they succeed, be given joint possession and then it will be a matter of no great difficulty if it becomes necessary to bring a partition suit to ascertain that share. I think this appeal should be disposed of in that way. The case will be sent back to the lower appellate Court with these observations. The appellants will have a month’s time from the date of the arrival of the record in the lower appellate Court to pay the costs. In the event of their not paying the costs within the time limited, this appeal will stand dismissed with costs.
7. I agree.