- (1.) THIS is a second appeal by Mst. Amba against a decree of the Additional District Judge No. 1, Jodhpur. A preliminary objection has been raised that the appellant has no right to appeal. The facts which are necessary for the decision of this preliminary objection are these. Aidan, plaintiff-respondent, brought a suit for ejectment of Mst. Amba and Mst. Sita from a house and also for arrears of rent. His case was that Mst. Amba's husband Aibux and Mst. Sita's husband Ambalal were cousins and members of a joint Hindu family and Aibux was the Karta. Ambalal died in the lifetime of Aibux and thereafter, his widow Mst. Sita lived jointly with Aibux. After Ambalal's death Aibux as Karta of the family borrowed some money from the plaintiff and made a usufructuary mortgage of the house in dispute on the 29th of March 1917. The possession of the house was transferred to the plaintiff and Aibux thereafter took the house on rent at Rs. 9/- per year on 31st of March 1917 and executed a rent-note in plaintiff's favour. Aibux paid the rent only for one year. He died sometime afterwards and the plaintiff's suit was brought against the two widows as the legal representative of Aibux.
(2.) MST. Amba appellant did not appear in the trial court and the suit proceeded ex parte against her. MST. Sita contested the suit on two grounds. In the first place, it was urged that Aibux and Ambalal were separate and Aibux could not mortgage Ambalal's half share in the house and, therefore, MST. Sita was in possession of half the house in her own right as owner and could not be ejected. Secondly, it was urged that the tenancy created by the rent-note was a tenancy at will which came to an end on the death of Aibux and no suit for arrears of rent and ejectment based on the rent-note could be maintained. The trial court decided against Mst. Sita on the question whether Aibux and Ambalal were joint. It also held that the tenancy terminated at the death of Aibux and, therefore, there could be no claim for rent but it granted a decree for ejectment from the whole house against both Mst. Sita and Mst, Amba. There was no appeal by Mst. Amba but Mst. Sita appealed to the District Judge and raised two main points: - (1) that the family was not joint, and therefore, she was owner of half share and could not be ejected, and, (2) that the tenancy being tenancy at will, the lower court was not right in passing a decree for ejectment from the house in a suit based on tenancy after it had expired. The learned District Judge held on the first point that jointness had not been proved. He, therefore, dismissed the suit with respect to half the house in the possession of Mst. Sita. As to the second point, he was of the view that it was unnecessary to decide it as there was no appeal by Mst. Amba who was concerned with the other half of the house. There was no appeal in this court by Mst. Sita who was apparently satisfied with getting half the house as; her own property. Mst. Amba has, however, appealed on the main ground that the tenancy being tenancy at will, the suit "as framed was not maintainable as the tenancy had come to an end on the death of Aibux. The preliminary objection is that Mst. Amba having not appealed from the trial court's decree has no right to file a second appeal which in effect is a direct appeal from the decree of the Munsiff to this court. Reliance has been on behalf of the plaintiff-respondent placed on a number of cases in support of this contention. The first of these is Mahomed Khaleel Shirazi and Sons vs. Les Tanneries Lyonnaises & another (I. L. R. XLIX Mad. 435 ). In that case a suit had been brought against two persons. The trial court passed a decree against one and dismissed the suit against the other but awarded costs against him. There was an appeal by both the defendants but the plaintiff did not appeal. The appellate court reduced the sum payable by the first defendant and dismissed the suit in toto as against the second defendant. Thereupon, the plaintiff appealed to the Privy Council against both defendants and wanted a decree against both. Thereupon a preliminary objection was raised that no appeal could be filed against the second defendant. This objection was upheld and their Lordships observed as follows at page 439:- "their Lordships think that this appeal to His Majesty in Council, in so far as Marret (second defendant) is concerned, is, in effect, an appeal direct to His Majesty in Council from the decree of the trial Judge, which is not al-lowable under the Code of Civil Procedure, 1908, or under the Letters Patent of the High Court, and they hold that the Code of Civil Procedure, 1908, Order XLI, rule 33, was not. intended to apply to such, an appeal. " The next case which is relied is Mt. Jagpati Kuer vs. Sukhdeo Prasad and another (A. I. R. 1942 Pat. 204 ). In" that case, the plaintiff had sued for a sum of money against a number of defendants and the suit was decreed. Two of the defendants did not appeal and the question arose whether the decree could be varied in the appeal that had been filed by one of the defendants in favour of those defendants who had not appealed. It was held that Order 41, rule 4 was inapplicable as the decree against the defendants who had not appealed was separable. It was also held that in such a case Order 41, rule 33-should not be applied. The relevant observations are (p. 209) as follows :- "there is no good reason why a right of appeal after it has lapsed should be handed out gratuitously to persons who have themselves neglected to avail of it, specially when they have not asked for it, and the interests of the case do not require it for the purpose of doing justice to the person who has appealed. Such a case is not one for the application by the Court of the powers which 6. 41, R. 4 and O. 41, R. 33 confer upon it. " Next case relied upon is Raja Mohan Bikram Shah alias Ram in Raja vs. Deonarain Mahto and others (A. I. R. 1945 Pat. 453 ). In that case, the plaintiff had brought a suit for eject" ing a number of defendants which was decreed. There was appeal by some of the defendants and not by others. The appeal was allowed by the appellate court and it proceeded to dismiss the suit against the defendants who had not appealed. Thereupon, there was a second appeal and the decree of the appellate court was reversed with respect to the defendants who had not appealed with the following observations : (p. 458) : - "this is not a case of the entire claim of the defendant succeeding or failing as a whole. It was not a case of one settlement, but of certain different tenancies in favour of different tenants. Each case of settlement must stand jor fall on its own merits. " Learned counsel for the appellant contends that this is a fit case in which the court should exercise its power under O. 41, R. 4 which permits the court where the decree proceeds on a common ground to vary it even in favour of defendants who have not appealed. But I am of opinion that O. 41, R. 4 is not applicable to the present case. The common ground that is urged is that the tenancy was at will and terminated on the death of Aibux and, therefore, the suit as framed was not maintainable and should have been dismissed. This was not the ground on which the trial court's decree proceeded. As a matter of fact, if this ground had been accepted, the suit would have been dismissed by the trial court. This ground was raised by Mst. Sita in the lower appellate court but it was not decided and the lower appellate court confined itself to deciding the question of jointness in favour of Mst. Sita and dismissing the suit for half the house. There was thus no common ground either in the trial court or in the lower appellate court on which the decree proceeded and there is, therefore, no question of the application of O. 41, R. 4 in this case. Further this case is on all fours with the case in I. L. R. XLIX Mad. 435 and the appellant is not entitled to the benefit of O. 41, R. 33 for, she is, in effect, appealing direct from the decree of the Munsif to this court. Her failure to appeal to the District Judge created a valuable right in the plaintiff and she cannot ask this court to destroy that right simply because another defendant appealed thus giving her a chance to file a second appeal in. this court. I am, therefore, of opinion that the preliminary objection must succeed and Mst. Amba has no right of appeal. It is further urged that even though the appellant may not have a right of appeal, this court may permit her to appeal as she was a party in the lower appellate court. It is enough to say that I am not prepared to give the appellant any such permission in this case. The preliminary objection, therefore, succeeds and the appeal is hereby dismissed with costs to the plaintiff-respondent. . ;