Wanchoo, C. J. - (1.) THIS is a second appeal by Virdhichand and another against the judgment and decree of the Civil Judge, Udaipur,
(2.) THE present appellants had brought a suit for redemption of a mortgage against five persons. THEir case was that the plot in dispute had been mortgaged by their ancestors. Hazarimal and Rekhabdas, in favour of Lalchand Kothari, father of defendants 1 and 2. Defendants 3, 4 and 5 were added as parties on the ground that they had got into possession of this land by some sort of conspiracy with defendants 1 and 2, and were claiming to be in possession through some patta from Thikana Deogarh. The suit was resisted mainly by defendants 3, 4 and 5, and five issues were framed by the trial court. These issues related (i) to the proof of the mortgage, (ii) to the patta in favour of defendants 3 to 5 and to their possession being legal, (iii) to the amount spent by defendants 3 to 6 in improving the land, and whether they were entitled to it, (iv) to non-joinder of a necessary parly, namely Thikana Deogarh, and (v) to the relief. The trial court decided all the issues in favour of the plaintiffs and decreed the suit against all the defendants. Thereupon, there was an appeal by defendants 3, 4 and 5. In the grounds of appeal, the findings of the trial court were assailed on all the issues. There was, however, no plea either in the trial court or in the grounds of appeal by defendants 3, 4 and 5 to the effect that the suit against them should not proceed as they were sitting up a paramount title. The lower appellate court, however, allowed the appeal, and dismissed the suit so far as defendants 3, 4 and 5 were concerned on the ground that they were putting up a paramount title and were not necessary parties. In the result, the decree was allowed to stand against defendants 1 and 2, but was set aside against defendants 3, 4 and 5. The plaintiffs have come in second appeal to this Court, and the main contention on their behalf is that the lower appellate court was wrong in setting aside the decree against defendants 3, 4 and 5 on the ground that they were claiming paramount title. It is urged that the rule that those claiming paramount title should not be made parties in a suit based on a mortgage is not an inflexible rule, and where persons claiming paramount title were in possession and had not raised the question that the suit should not proceed against them in the trial court, they should not be allowed to raise it in the appellate Court. The law is well-settled that a person claiming adversely to the mortgagor and the mortgagee, i. e. a person claiming paramount title, was not a necessary or proper party to a suit relating to a mortgage. In this connection, reference may be made to Asmatullah Pramanik vs. Gamir Pramanik (1) where it has been held that 'as a general rule the proper scope of a mortgage suit is to cut off the equity of redemption and bar the rights of the mortgage and those claiming under him, and in such a case a stranger setting up an adverse claim of title cannot be made a party for the purpose of litigating that in the mortgage suit. ' In Mst. Rasolan Bibi vs. Ram Kuar (2), it has been held that a person claiming the right in the property as owner of the same in denial and derogation of the mortgagor is not a necessary party in a mortgage suit, and the determination of such a title in a suit is bound to lead to confusion and , hence should be avoided,, It may, therefore, be laid down as a general rule that investigation of a paramount title in a mortgage suit is improper, and the courts should avoid it. But, as has been pointed out in certain other cases, this rule is not inflexible, and where the person alleging the paramount title is made a party and does not object to the matter being litigated, and allows the trial court to go into his title, it is, in my opinion, too late in the day for the first appellate court to dismiss the suit against such a person on the ground merely that he was claiming paramount title. In this connection reference may be made to (Jalmana) Veeraraghavalu Naidu vs. Suryanarayana Panda (3 ). In that case it was held that "ordinarily the title of persons who set up a claim adverse to the mortgagor and mortgagee should not be investigated in a suit upon a mortgage. The joinder of such person is irregular and leads to confusion, but it is not an inflexible or invariable rule. Such joinder does not affect the jurisdiction of the Court though it is always desirable that if a party sets up a paramount title and does not want to redeem the property he may be struck off from the record as he takes the risk of not claiming redemption in case his title is found against in any subsequent litigation. The Court is not bound to adjudicate on such paramount title, but the fact that the defendant objects to the trial of such an issue would not preclude the Court from trying it if it thinks necessary in the interests of all parties that such a trial should take place. " In khub Lal Upadhya vs. Jhapsi Kundu (4) it has been observed that "though, as a general rule, it is desirable in mortgage suits to exclude all issues between the parties except those immediately concerned with the mortgage suit itself, the court may in certain cases allow other issues to be determined in such a suit. Where, for example, the defendants raising a paramount title are in possession and likely hereafter, if their differences are not settled by the mortgage suit, to resist the possession of a successful plaintiff in a mortgage suit, it would in many cases be very convenient to allow the issues of their title to be determined in the mortgage necessary, as such person is clothed with certain status, and enjoys certain privileges, and is liable to certain disabilities, and it would be unjust to saddle him with such responsibility without his agreeing to become suit so that after determination of those issues the plaintiff will know whether he may or may not get an undisturbed possession of the property instead of having to bring a separate suit later on". These two case, therefore, show that it is not impossible for paramount title to be investigated in a mortgage suit. I would not, however, go so far as these two cases have gone, and the proper rule to lay down is that where a person asserting paramount title does not object to the adjudication of his title in the trial court, and allows the trial court to adjudicate upon his paramount title, it is too late in the day for him to urge in appeal that his title should not have been adjudicated upon. Where, however, a person claims paramount title, and objects to his title being adjudicated upon by the trial court, it would, in my opinion, be desirable in order to avoid confusion that objection should prevail, and such a party should be struck off from the file leaving it to the plaintiff to file a separate suit against him. Let me then see how this principle affects this case. Defendants 3, 4 and 5 certainly claimed paramount title in the trial court, but they were quite satisfied with the trial court adjudicating on their paramount title. Even in their grounds of appeal before the first appellate court, they did not raise the ground that the question of paramount title should not have been adjudicated upon. It seems that the first appellate court itself gave effect to the plea that paramount title could not be litigated at all in a mortgage suit. As pointed out above this is not a correct statement of the law. The correct position is that if a person sets up paramount title in the trial court, and objects to the adjudication of that title,the trial court should not adjudicate on such title, and should strike off the name of such person. But if such paramount title is raised, and no objection is taken to adjudication of it in the trial court, it is, in my opinion, too late to object to such adjudication in the appellate court. In this view, I am of opinion that the appellate court should have adjudicated on all the questions raised in the trial court, and should not have allowed the appeal with respect to defendants 3, 4, and 5 on the ground that they had raised the question of paramount title which could not be litigated at all in a mortgage suit. It is enough to point out that defendants 3, 4 and 5 did raise the question of paramount title, but never objected to its being adjudicated upon by the trial court, and the trial court had adjudicated on that question. In this view of the matter the appeal must be allowed, and the order of the first appellate court dismissing the suit as against defendants 3, 4 and 5 be set aside, and the first appellate court be directed to decide the appeal with respect to defendants 3, 4, and 5 also on the merits. I, therefore, allow the second appeal and setting aside the order of the lower appellate court with respect to defendants 3, 4 and 5, direct it to decide the other issues in the case on the merits. As the defendants 3 to 5 have not appeared in this Court, I pass no order as to costs of the appeal in this Court Costs of the trial court and the lower appellate court will abide the final result. . ;