JUDGMENT Jagdish Sahai, J. - This Second Civil Appeal has come up before us on a reference made by V. D. Bhargava, J. A suit for partition was filed by Bijai Pal Singh and Rajman Singh against Sheobalak Singh, Jhinguri Singh, Ram Raj Singh, Jhinku Singh, Shanker Singh, Achraj Nath Singh and Udai Raj Singh. It was decreed by the trial court. An appeal was filed against the decree of the learned Munsif by the defendants Sheobalak Singh, Udairaj and Jhinguri Singh without impleading Achraj Nath Singh as a party though other non-appealing defendants were arrayed as respondent. The learned Civil Judge, Gonda, holding that the appeal had abated for non-joinder of Achraj Nath Singh as a party dismissed it on 7-8-1951. Against the decree of the learned Civil Judge dated 7-8-1951, the present appeal has been filed. 2. The only question that requires consideration is whether the non-impleadment of Achraj Nath Singh in the appeal was fatal to its maintainability and the appeal as a whole had abated. On behalf of the defendant-appellant it has been contended that by virtue of the provisions of rules 4 and 33 of Order XLI, C.P.C. the appeal filed in the lower appellate court was good and competent and the learned Civil Judge erred in dismissing the same. Rules 4 and 33 of Order XLI read as follows: - * * * 3. Before Or. XLI, R. 4 can apply to the facts of the present case it must be ascertained that the decree appealed from proceeded on a ground common to all the defendants. The suit was for partition of joint property. The defence was not common. Two written statements were filed in the trial court, one of which was on behalf of the defendants Sheobalak Singh and Jhinguri Singh and the other on be half of the defendants Shanker Singh and Udai Raj Singh the two latter being the brothers of Achraj Nath Singh. In para. 14 of the written statement filed by Shanker Singh and Udai Raj Singh it was stated as follows :- "That the answering defendants and their heirs are in possession and occupation as full owners of the house cattle shed and ghari in dispute and in possession of the answering defendants for more than 12 years and this suit is not within time." Para. 13 of the written statement of the defendants Sheo Balak Singh and Jhinguri Singh reads as follows: - "The ghari which is built to the north of the dalan and the ghari which was to the east of the house of Ludur Singh were in the possession of the defendants and now after the compromise the ghari situate to the east of the house of Ludur Singh is in possession of the defendant Nos. 5 to 7 and the ghari to the north of the dalan is in the possession of the defendants Nos. 1 to 4." 4. A perusal of the two written statements clearly discloses the fact that in neither of them either the possession or the share of Achraj Nath Singh in the disputed property was admitted. Achraj Nath Singh himself did not file any written statement. When the question about the non-impleadment of Achraj Nath Singh was raised in the appeal the case set up by the appealing defendants was that he was dead. The learned Civil Judge, therefore, framed an issue and remitted the same to the trial court for deciding whether or not Achraj Nath Singh was alive. The learned Munsif after recording evidence submitted a finding that Achraj Nath Singh was alive. Now the admitted case of the appellants is that Achraj Nath Singh was in fact alive and the stand taken by them that he was dead was not correct. These facts clearly reveal that the consistent case taken by the appellants was that Achraj Nath Singh had no share in the property in dispute and an attempt was made to obtain his share also by practising fraud on the Court by falsely stating that Achraj Nath Singh had died. In the circumstances we find it impossible to hold that the appeal filed by Sheo Balak Singh, Udai Raj Singh and Jhinguri Singh was for the benefit of Achraj Nath Singh also. It is well established that in a partition suit no decree can be passed for partition in the absence of a single co-sharer of the property and that every co-sharer is a necessary party in such a suit. See Fazal Mohammad Khan v. Ali Mohammad Khan, A.I.R. 1935 Oudh 36 and Churaman Mahto v. Bhatu Mahto, AIR 1935 Patna 241. It is well established that in a partition suit no decree can be passed for partition in the absence of a single co-sharer of the property and that every co-sharer is a necessary party in such a suit. See Fazal Mohammad Khan v. Ali Mohammad Khan, A.I.R. 1935 Oudh 36 and Churaman Mahto v. Bhatu Mahto, AIR 1935 Patna 241. For the reasons mentioned above we are of the opinion that the decree did not proceed on a ground common to all the defendants and therefore there was no application of Or. XLI, R. 4 in the present case. 5. Rule 33 of Or. XLI, C.P.C. does not deal with the maintainability of the appeal; it only deals with the power of the court to pass a decree if the appeal is maintainable. If the appeal is not heard there is obviously no application of that rule. In Rai Harendra Nath Chaudhury v. Dwijendra Nath Banerji, 37 Cal.W.N. 756 it was held that if the entire suit abates Or. XLI, R. 33 has no application. Similarly it was held that the court under Or. XLI, R. 33 cannot implead a person against whom an appeal is abated. See Laguduva S. K. Iyer v. Sankarappa Naidu, AIR 1935 Madras 175 and Ramdhari Singh v. Rambharose Singh, AIR 1955 Patna 237. 6. In V. S. T. Thamsa Thas in Tharaganar v. Mohammad Haji Ganny, AIR 35 Rang. 364 it was held that under Or. XLI, R. 33 a court cannot implead a person against whom an appeal has become barred by limitation. We are in respectful agreement with the views expressed in these decisions. For these reasons it appears to us that the appellant cannot derive any benefit from the provisions of Or. XLI, R. 33. 7. Several cases have been cited at the bar. We shall notice them one after the other. Abdul Rahman v. Girjesh Bahadur Pal, AIR 1938 Allahabad 235 is a clearly distinguishable case. In that case the suit proceeded on a ground common to all the plaintiffs and only some of the plaintiffs appealed impleading the non-appealing plaintiffs as proforma respondents. Some of the respondents died during the pendency of the appeal. It was held by this Court that the appeal did not abate. In Mst. Krishna Dei v. Governor General in Council, AIR 1950 Allahabad 1 a suit for possession of certain property was filed. Some of the respondents died during the pendency of the appeal. It was held by this Court that the appeal did not abate. In Mst. Krishna Dei v. Governor General in Council, AIR 1950 Allahabad 1 a suit for possession of certain property was filed. Defendants B and C alleged to have derived title from defendant A and all of them contested the plaintiff's claim on a common ground that he had no title. A decree was passed against them all. Defendant A appealed making B and C respondents. B and C died during the pendency of the appeal and their representatives were not brought on the record within the time allowed by law. It was held by this Court that the provisions of Order XL I, R. 4, C.P.C. applied and the appeal did not abate as defendant A was competent to appeal from the whole decree. The facts of that case are clearly distinguishable from the facts before us. There the other defendants claimed right through defendant A and consequently the appeal filed by defendant A was against a decree which proceeded on a ground common to all the defendants. In Mst. Parbati Kuer v. Manna Lal Khetan, AIR 1956 Patna 414 a Full Bench of that Court held that the effect of reading rules 4 and 33 of Order XLI together is that the appellate court is authorised to pass a decree in favour of a party who has not been heard but it has no authority to pass a decree against a person who is not a party to the appeal. In other words it was held that the appellate court has power under Or. XLI, R. 4 read with Or. XLI, R. 33 to vary or reverse a decree granted by the lower court in favour of a defendant who is not impleaded either as a party appellant or as a party respondent. In the present case inasmuch as the right and the share of Achraj Nath Singh was being denied by the defendant-appellant, if the decree were varied it could not be in favour of Achraj Nath Singh. In our opinion, therefore, the Patna case is clearly distinguishable or, at any rate, if it applies it goes against the appellant rather than in his favour. In our opinion, therefore, the Patna case is clearly distinguishable or, at any rate, if it applies it goes against the appellant rather than in his favour. In Checko Joseph v. Varghese Markose, AIR 1957 Kerala 181 the finding was that the decree proceeded on a ground common to all the defendants. It was held that in the appeal by the second defendant, the other defendants though they had not appealed could get benefit of the appeal by the second defendant. We have already said above that in this case we have come to the conclusion that the decree did not proceed on a ground common to all the defendants. Duli v. Badri Prasad, A.I.R. 1937 Oudh 448 was a case where a decree proceeded on a ground common to all the defendants and the Chief Court of Oudh held that even though the other defendants had not been impleaded in the appeal which was filed by only one of the defendants the appeal was maintainable for the benefit of all the defendants. In Sheo Govind v. Zahoor Mohammad, A.I.R. 1941 Oudh 155, the decision is to the effect that if a suit did not proceed on a ground common to all the defendants an appeal by only one of the defendants is not competent. 8. Two other cases were brought to our notice. They are Balkaran Lal v. Malik Namdar, AIR 1924 Allahabad 873 and Jagdei v. Sampat Dube, AIR 1937 Allahabad 796. The first case is clearly distinguishable on facts. In the second case it was held that Or. XLI, R. 4 would apply only if the decree proceeded on a ground common to all the defendants or the plaintiffs as the case may be. This decision is not inconsistent with the view we are taking. We may also state that among all the authorities mentioned above the decisions in Fazal Mohammad Khan v. All Mohammad Khan, A.I.R. 1935 Oudh 36 and Churaman Mahto v. Bhatu Mahto, AIR 1935 Patna 241 are cases in partition suits. Inasmuch as the law is well settled that all the co-sharers are necessary parties in a partition suit it cannot be said that the decree passed in the present case proceeded on a ground common to all the plaintiffs or the defendants. Inasmuch as the law is well settled that all the co-sharers are necessary parties in a partition suit it cannot be said that the decree passed in the present case proceeded on a ground common to all the plaintiffs or the defendants. We are thus satisfied that the only authorities which are really relevant for the decision of our case are Fazal Mohammad Khan v. Ali Mohammad Khan, A.I.R. 1935 Oudh 36 and Churaman Mahto v. Bhatu Mahto, AIR 1935 Patna 241 and in both of these cases the appeals were held to have abated as a whole. We respectfully agree with these decisions. 9. For the reasons mentioned above we are satisfied that the learned Civil Judge was perfectly correct in holding that the appeal before him had abated as a whole and was justified in dismissing it. We, therefore, dismiss this appeal but direct the parties to bear their own costs,.