Appeal No 1110 of 1965
Appeal from the judgment and decree dated July 6 1959 of the Patna High Court in First Appeal No 235 of 1951
Sarjoo Prasad and BP Jha for the appellants
CB Agarwala PK Chatterjee and RB Datar for the respondents in Excepting respondents Nos
15b to 15d
The Judgment of the Court was delivered by Bachawat J
This appeal arises out of Title Suit No 129 of 1946 instituted in the Court of the First Additional Subordinate Judge Darbhanga
The plaintiffs claimed declaration of their title and possession in respect of 70 bighas of land in plot No 1083 in village Siripur Majrahia
They obtained settlements of the lands from the deity Shri Radhakrishan Jee Baldeojee
The deity was the 16 annas proprietor of village Siripur Majrahia Pergana Jankhalpur Tauzi No 2794
The river Karey flows between this village and the villages of Kazi Dumra and Shankarpur
The contesting defendants were the landlords and tenants of villages Kazi Dumra and Shankarpur
The deity was defendant No 18 and was represented by one Tantreshwar Singh
The plaintiffs claimed that in consequence of the changes in the channel of the river Karey the lands in suit were lost to villages Kazi Dumra and Shankarpur by diluvion and were annexed to plot No 1083 in village Siripur Majrahia by gradual increment and accretioan
The trial Court dismissed the suit
It held that 1 the suit lands did not accrete to plots Nos 1083 and 1089 in village Sirlput Majrahia due to slow gradual and imperceptible changes in the channel of the river Karey 2 there was no custom in the village by which the disputed lands became the property of the owner of those plots 3 the deity Radha Krishanji Baldeoji or the owner of village Siripur Majrahia did not obtain possession of the lands in the manner alleged in the plaint 4 the lands originally belonged to the proprietors of villages Kazi Dumra and Shankarpur and continued to be their property and 5  the plaintiffs failed to prove their title and possession in respect of the suit lands within 12 years before the date of the institution of the suit
The plaintiffs filed FA No 291 of 1951 in the High Court of Patna against the decree passed by the Trial Court
The deity Shri Radha Krishanji Baldeoji the original defendant No 18 was 973 impleaded as respondent No 23 in the appeal
By an order dated January 24 1952 the High Court appointed the Deputy Registrar as the guardian of the deity
On February 181952 the High Court passed the following order  Two week s further time is allowed to deposit DR guardian s cost for respondent No 23 deity failing which this appeal shall stand dismissed against him without further reference to a Bench This peremptory order was not complied with and on the expiry of the two weeks the appeal stood dismissed against the deity
At the hearing of the appeal the contesting defendants urged that the entire appeal became incompetent in view of the dismissal of the appeal against the deity
The High Court accepted this contention and dismissed the appeal in its entirety
The High Court held that there was a clear issue between defendant No 18 and the contesting defendants as to whether the lands formed part of the village Siripur Majrahia that the issue stood concluded against defendant No 18 by the decree of the Trial Court that the appeal had abated against defendant No 18 and that as success in the appeal might lead to conflicting and inconsistent decrees the appeal against all the defendants became incompetent
The present appeal has been filed by the plaintiffs after obtaining a certificate from the High Court
Clearly the High Court was in error in holding that the appeal had abated either wholly or in part
None of the parties to the appeal had died and there was no question of the abatement of the appeal
Mr CB Agarwala relying on the case of Munni Bibi vs Trilokinath1 submitted that the decision of the Trial Court on the question whether the suit lands appertained to village Siripur Majrahia operated as res judicata between the deity and the contesting co defendants that the appellate court could not record an inconsistent finding that the suit lands appertained to village Siripur Majrahia and that in the circumstances the entire appeal before the High Court became incompetent
We are unable to accept these contentions
The plaintiffs claiming as tenants of the deity sued the contesting defendants for declaration of their title and possession in respect of the suit lands on the allegation that the lands appertained to village Siripur Majrahia of which the deity was the proprietor
The deity was not a necessary party to the suit
It was joined as a defendant but no relief was claimed against it
The suit was dismissed on a finding that the suit lands did not appertained to village Siripur Majrahi a
The plaintiffs filed an appeal against the decree impleading the deity as one of the respondents
The appeal was dismissed against the deity for non1 LR 58 IA 158
974 payment of costs of its guardian ad litem
The deity was not a necessary party to the appeal
The plaintiffs were entitled to prosecute their appeal against the contesting defendants in the absence of the deity
As soon as the appeal was filed by the plaintiffs in the High Court the decision of the Trial Court lost its character of finality and the question whether the suit lands appertained to village Siripur Majrahia became once again res sub judice
The case of Munni Bibi vs Trilokinath1 shows that a decision operates as res ludicata between co defendants if 1 there is a conflict of interest between them 2 it is necessary to decide that conflict in order to give the plaintiffs the reliefs which they claim and 3  the question between the co defendants is finally decided
In the present case the third condition was not satisfied
The question whether the suit lands appertain to Siripur Majrahia was not finally decided between the deity and the co defendants
On the filing of the appeal by the plaintiffs the question became once more subject of judicial inquiry between the deity and the contesting defendants
Before the appeal was finally heard and decided it was dismissed as against the deity for non payment of its guardian s costs
The appellate court did not give any decision on the merits of the case in the presence of the deity
There is no final decision against the deity on the question of the title to the suit lands
The decision of the appellate court against the contesting defendants will not lead to conflicting and inconsistent decrees
The High Court was in error in holding that the appeal against the contesting defendants became incompetent
In the circumstances the High Court ought to have decided the appeal before it on the merits
Counsel for the parties agreed that the decision of the present appeal on the merits would abide by the decision in CA No 140 of 1966 arising out of TS No 2911 of 1946
That suit and TS No 129 of 1946 out of which the present appeal arises were heard together by the Trial Court and disposed of by a common judgment
In CA No 140 of 1966 we have held that the disputed lands appertained originally to village Kazi Dumra and Shankarpur that due to the recession of the river Karey the lands reformed in situ and that the property in the lands continued to remain with the proprietors of the lands in villages Kazi Dumra and Shankarpur
The plaintiffs failed to prove that the deity Shri Radha Krishnaji Baldeoji came into possession of the disputed land as alleged in the plaint
There was no issue on the question whether the deity had acquired title to the suit lands by adverse possession
The plea of acquisition of title by adverse possession cannot be raised for the first time at the appellate stage
The plaintiffs failed to establish acquisition of title of the deity to any portion cf the suit lands by adverse 1 LR 58 IA 158
975 possession
It follows that there was no merit in FA No 235 of 1951
Although the High Court did not decide this appeal on the merits it is not necessary to remand the matter to the High Court
Having regard to our findings in CA No 140 of 1966 TS No 129 of 1946 also must be dismissed
In the result the appeal is dismissed
There will be no order to costs
YP Appeal dismissed


Summary:
The plaintiffs appellants herein obtained settlements of certain land owned by a deity in village Siripur Majrahia in Bihar
The contesting defendants respondents herein owned lands in the villages of Kazi Dumra and Shankarpur which were separated from Siripur Majrahia by a river
The plaintiffs claimed that in consequence of the changes in the channel of the aforesaid river the lands in suit were lost to villages Kazi Dumra and Shankarpur by diluvion and were annexed to their land in village Siripur Majrahia by gradual increment and accretion
The deity was also made defendant No 18 in the suit although no relief was claimed against it
The trial court dismissed the suit and the plaintiffs appealed to High Court again impleading the deity as a respondent
They however failed to deposit the cost of the guardian ad litem of the deity appointed by the High Court and the Court thereupon dismissed the appeal as against the deity
The contesting defendants urged at the hearing that the entire appeal had become incompetent in view of the dismissal of the appeal against the deity
Accepting the contention the High Court dismissed the appeal
It held inter alia that the appeal had abated against the deity
The plaintiffs filed appeal with certificate in this Court
On behalf of the respondents reliance was placed on Muni Bibi vs Trilokinath and it was urged that the decision of the trial court on the question whether the suit lands appertained to village Siripur Majrahia operated as res judicata between the deity and the contesting co defendants that the appellate court could not record an inconsistent finding that the suit lands appertained
to village Siripur Majrahia and that in the circumstances the entire appeal before the High Court had become incompetent
HELD i The High Court was in error in holding that the appeal had abated either wholly or in part
None of the parties to the appeal had died and there was no question of abatement of the appeal
973 E ii The deity was not a necessary party to the appeal and the plaintiffs were entitled to prosecute their appeal against the contesting defendants in the absence of the deity
973 G H 974 A B iii The case of Muni Bibi vs Trilokinath shows that a decision operates as res judicata between co defendants if 1 there is a conflict of interest between them 2 it is necessary to decide that conflict in order to give the plaintiffs the reliefs which they claim and 3 the question between the co defendants is finally decided
In the present case the third condition was not satisfied
The question whether the suit lands appertained to Siripur Majrahia was not finally decided between the deity and the co defendants
On the filing of the appeal by the plaintiffs the question became once more the subject of judicial enquiry between the deity and the contesting defendants
974 B D Muni Bibi vs Trilokinath LR 58 IA 158 referred to
972 iv Before the appeal was finally heard and decided it was dismissed as against the deity for non payment of its guardian s costs
The appellate court did not give any decision on the merits of the case in the presence of the deity
There was no final decision against the deity on the question of title to the suit lands
The decision of the appellate court against the contesting defendants would not lead to conflicting and inconsistant decrees
The High Court was in error in holding that the appeal against the contesting defendants became incompetent
974 D E