(1.) This is an appeal by the plaintiffs from a suit which they had instituted for recovery of khas possession or in the alternative recovery of possession jointly with defendant 1. There was originally a prayer for Wasilat but the same was withdrawn with liberty to institute a fresh suit for the purpose. The suit was originally instituted by one Kedari Mondal. He died during the pendency of the suit and upon that his widow and his daughter applied to be substituted in his place. An order was made for such substitution and the suit proceeded with these two persons as the plaintiffs. Afterwards as appears from the judgment of the learned Munsif, the defendant preferred an objection on the ground that Kedari had left two other heirs, one of the name of Samir and the other of the name of Felu, they being cousins of Kedari and were residuaries under the Mahomedan law. The Munsif dealt with this objection in these words: Admittedly Kedari left no son. Then according, to Mahomedan law the widow gets two annas, the daughter gets eight annas and the residue goes to Samir and Felu, if they be cousins of Kedari. But this omission to make Sami and Felu patties does not vitiate the suit. The plaintiffs, the widow and daughter claimed the entire four annas of Kedari. If by law they cannot get it then they can claim their ten annas.
(2.) On the merits, the Munsif found that Samir and Felu were really cousins of Kedari and that the plaintiffs could at best get a 10 annas share and no more. As regards the other question that arose on the merits the learned Munsif held that the purchase alleged to have been made by Kedari on which the plaintiffs claim in the suit rested was not approved and that Kedari had no possession. The Munsif accordingly dismissed the suit. The plaintiffs, that is to say the widow and the daughter of Kedari, thereupon preferred an appeal. Before the Subordinate Judge, at the hearing of the appeal the respondents, that is to say, the defendants in the suit, took a preliminary objection to the effect that the appeal was incompetent as the suit had abated because of all the heirs of Kedari not having been made parties to the suit. The Subordinate Judge dealt with this matter as a preliminary point and on considering the evidence came to the same conclusion as the Munsif, namely, that Samir and Felu were also heirs of Kedari. Having come to this finding, the Subordinate Judge proceeded to hold that as all the heirs of Kedari were not substituted on the record the whole suit had abated. He relied upon a decision of this Court in the case of Fajor Banu V/s. Rohim Bux Bhuiya . It appears also that at the hearing of the appeal the pleader for the plaintiffs filed a petition asking that the plaintiffs might be allowed to bring Pelu and Samir on the record if they were found to be the heirs of Kedari. The learned Subordinate Judge, however, held that the whole suit had already abated even when the suit was pending in the trial Court and that these persons could not be legally made parties at the stage at which that application was made. In this view of the case, the learned Subordinate Judge, without going into merits, dismissed the appeal holding that the suit had abated.
(3.) Plaintiffs have then preferred this second appeal. In the appeal it has been urged on behalf of the plaintiffs that when the substitution had already been made by the trial Court the question before the Subordinate Judge was not really a question as to whether the suit had abated or not by reason of all the heirs of Kedari not having come forward to apply to be substituted in his place, but that the real question was whether the two heirs of Kedari, namely, the widow and the daughter who had been substituted in the place of Kedari were entitled to proceed with the appeal, that is to say, with the prayer which they had made in the plaint. It has been argued further that although in such a state of things the prayer for khas possession was not maintainable yet in view of the fact that the sharers of these two persons were not disputed it should have been held that they were entitled to go on with the suit and the appeal in so far as their claim for khas possession jointly with defendant 1 was concerned, which, as already stated, was one of the prayers in the plaint. On behalf of the respondent, however, reliance has been placed upon the decision in the case of Fajor Banu V/s. Rohim Bux Bhuiya , upon which the learned Subordinate Judge has relied and to which reference has already been made. The argument on behalf of the respondent is that an application by some of the heirs of a deceased appellant is not an application within the meaning of Order 22, Rule 3 of the Code, and that when such an application is made the Court should regard it as not a proper application under that rule, but should, on finding that there are other heirs of the deceased appellants, reject the said application as one not made in accordance with law.