JUDGMENT : Defendants 1 to 3 have come up in appeal to this Court against a JUDGMENT : and decree of reversal passed by the lower appellate court. The trial court having dismissed the respondent-first party’s suit, the lower appellate court has decreed the same. 2. The facts relevant for the disposal of the appeal may be shortly stated as follows. Admittedly, one Durga Chaudhary was the common ancestor of the parties. He had five sons, namely, Lakshmi, Niri, Kali, Chathu and Kuldip. The plaintiffs and defendants 20 to 25 have descended from Niri aforesaid. Defendants 1 to 19 in the suit were descendants of Lakshmi. Defendants 26 to 40 have descended from Kali and defendant no. 41 from Chathu. According to the admitted case of the parties, Kuldip predeceased his father Durga Choudhary and died leaving behind his widow Mostt. Dayabati. So far there seems to be no controversy. 3. On these admitted facts the plaintiffs instituted the suit giving rise to this appeal, claiming 1 anna 4 paisa share and for a partition of the same in respect of a total area of 5 bighas 11 kathas 10 dhurs of land comprising plot no. 835 of khata no. 220 and plots 841 and 1199 of khata no. 221 in village Bhagwara, tauzi no. 5715. According to the plaintiffs' case, after the death of Durga Choudhary, the common ancestor, there was a complete partition of all the properties amongst the four brothers, Lakshmi, Niri, Kali and Chathu, excepting the area involved in the present suit which, it is alleged, was kept joint amongst the four brothers but was given in maintenance for the utilisation of its usufructs by Mostt. Dayabati, widow of Kuldip aforesaid. The usufructs were to be appropriated by her during her life time, the property in suit being still treated as joint for purposes of partition after the death of Dayabati aforesaid. According to the plaintiffs case, for the first time, defendant no. 1 bagan to interfere with the possession of the land which, after the death of Dayabati on the 17th of July 1955, was being cultivated on batai basis by plaintiff no. 1, defendant no. 14 and defendant no. 26. In 1363 fasli defendant no. According to the plaintiffs case, for the first time, defendant no. 1 bagan to interfere with the possession of the land which, after the death of Dayabati on the 17th of July 1955, was being cultivated on batai basis by plaintiff no. 1, defendant no. 14 and defendant no. 26. In 1363 fasli defendant no. 1 began to claim exclusive title to the land in suit giving rise to a proceeding under Section 144 of the Code of Criminal Procedure, which proceeding terminated in favour of defendant no.1, the prohibitory ORDER :being made absolute against the plaintiffs. Hence this suit for partition. In paragraph 5 of the plaint it was specifically stated that defendants 26 to 37 constituted their branch of a joint Hindu family being duly represented by their Kartas. Defendants 36 and 37, it may be stated here, were minors and were represented by a guardian ad litem, although their father, Asheshar Choudhary (defendant no. 34), had also been made to represent his branch of the joint family. This fact need not have been mentioned by me at this stage but for questions raised in this appeal by Mr. Indra Bhanu Singh, learned counsel for the appellants. Out of the 41 defendants, as already mentioned, only defendants 1 to 3 contested the suit by filing written statement on their behalf. Defendants 14, 18, 19, 22 to 24, 26 to 29, 37 and 41 filed their respective written statements, all separately, supporting the case of the plaintiffs. The defence put forward by the only contesting defendants, who are the present appellants was that the plaintiffs story with regard to the land in suit having been given by way of maintenance during the lifetime of Mostt. Dayabati was not correct and that all the lands of the joint family had been completely partitioned by metes and bounds amongst the four sons of Durga Choudhary, since the fifth son Kuldip was already dead, and the lands in suit fell to the exclusive share of defendants 1 to 3. On these facts, the fundamental issue to be decided in the suit was as to whether the land in question was given by way of maintenance to Mostt. On these facts, the fundamental issue to be decided in the suit was as to whether the land in question was given by way of maintenance to Mostt. Dayabati aforesaid for her lifeline only, thus preserving the unity of title and unity of possession in so far as the remaining four branches were concerned, as was alleged by the plaintiffs and the non-contesting defendants, or whether the case as set up by the present appellants was true that all the lands including the land in suit had been completely partitioned between the four branches long ago. 4. The trial court, on a consideration of the evidence, both oral and documentary, recorded a finding that the plaintiffs had failed to prove unity of title and possession over the disputed lands, since they had failed to prove that the disputed lands were given merely by way of maintenance to Mostt. Dayabati and that after her they had acquired any interest in the lands. The lower appellate court, reversing the finding of the trial Court, came to the following conclusion in paragraph 33. "Therefore, considering the evidence and the circumstances of the case as discussed above, I have no hesitation to hold that the suit land was not partitioned rather it remained joint among the co-sharers for the purpose of maintaining Mostt. Dayabati Kumari and so the plaintiffs are entitled to get it partitioned as claimed by them in the present suit." The lower appellate court was also of the view that since the unity of title and unity of possession amongst the co-sharers had already been held to be preserved by it, even if it be held that for some time past the appellants (defendants 1 to 3) had been in possession, such a possession could not be treated as ouster of the remaining co-sharers and would enure to the benefit of all the co-sharers. On these findings, the plaintiffs suit has been decreed. 5. "Before I deal with the questions raised by learned counsel for the appellants, it is also worthwhile to mention one small fact, namely, that on a previous occasion by a JUDGMENT : dated the 21st of December 1965 the lower appellate court had set aside the JUDGMENT : and decree of the trial court and had remanded the case to it. Against that JUDGMENT : of the lower appellate court, the present appellants had come up in civil revision to this court in Civil Revision 265 of 1966, which was finally disposed of by this Court by a learned Single Judge by his JUDGMENT : dated the 4th of April 1967, by which the ORDER :of remand passed by the' lower appellate court was set aside and a direction was issued to it to decide the case on the materials already on record, as it was held that the ORDER :of remand was without jurisdiction. After that ORDER :of remand the JUDGMENT : and decree under appeal has been passed by the learned Subordinate Judge. 6. In this second appeal, for the first time, a point was raised by Mr. Indra Bhanu Singh that the appeal before the lower appellate court had become incompetent in view of the fact that defendants 36 and 37, who were respondents 36 and 37 respectively in the lower appellate court, had died during the pendency of the appeal there and their mother who was still living was not substituted in their place. It was mentioned in this court that respondent no. 37 in the court below, Brij Bilas Choudhary, had died on the 6th of August 1963 and respondent no. 36, Shyam Bilas Choudhary, had died on the 2nd of February 1964 and that on an oral application by the plaintiff appellants in the lower appellate court merely the name of respondent no. 36, Shyam Bilas Choudhary, was ORDER :ed to be expunged, as it was mentioned that his father Asheshar Choudhary was already on the record in a representative capacity and was his legal representative from the ORDER :-sheet of the lower appellate court, however, it appears that the date of death of respondent no. 36, Shyam Bilas Choudhary, as given by the appellants in this Court is not correct, since• ORDER :no. 42 dated the 6th of August 1964 passed by the lower appellate Court runs thus: "Appellants file a verified petition that Respondent no. 1 Ram Khelawan Choudhary died on 2-7-64 leaving behind Respondent 4 and 5 as his heirs already on record. They therefore pray to expunge the name of respondent no. 1 and substitute the name of Srimati Maya Debi w/o Ram Khelawan Singh of Ram Diri, Perg Malki, Munsif Begusarai of Distt. Monghyr. They also state that respondent no. 1 Ram Khelawan Choudhary died on 2-7-64 leaving behind Respondent 4 and 5 as his heirs already on record. They therefore pray to expunge the name of respondent no. 1 and substitute the name of Srimati Maya Debi w/o Ram Khelawan Singh of Ram Diri, Perg Malki, Munsif Begusarai of Distt. Monghyr. They also state that respondent no. 36 Shyam Bilas Chaudhary also died on 25.6.64 and his heir respondent 34 is already on record. They therefore pray to expunge the name of respondent no. 36 Shyam Bilas Choudhary. Petition moved. Heard, Let the name of respondent no.1 and 36 be expunged from the grounds of appeal." It would thus appear that respondent no. 36 in the lower appellate court, Shyam Bilas Choudhary, actually died on the 25th of June 1964 and the oral application was made presumably in presence of the appellants as the original respondent no. 1 had also died and a petition for substitution had been moved in presence of the contesting defendants namely defendants 1 to 3. No objection to the expunction of the name of respondent no. 36 or for that matter even respondent no. 37, whose name was, however, never expunged, was taken by the appellants in the lower appellate court. It was specifically mentioned, as is borned out by the ORDER :quoted above, that the heir of respondent no. 36 was respondent no. 34, his father, who was already on record. In presence of the parties, therefore, it seems that the name of respondent no. 36 was expunged, although the name of respondent no. 37, for some reason or the other, could not be got expunged in the lower appellate court and whose name was subsequently expunged on an application made by the present appellants in the present Second appeal. In view of Section 6 of the Hindu Succession Act, 1956, the learned Single Judge, who heard this appeal in the first instance, felt that the case required the consideration of the question as to the effect of Section 6 of the Act on non-substitution of the mother of respondents 36 and 37 in the lower appellate court who was specified as an heir in class I of the Schedule to the aforesaid Act as it involved the question whether there was a proper representation of respondents 36 and 37 by respondent no. 34 in that court who, although their father, was not one of the heirs specified in class I. Hence this appeal before us. 7. Mr. Indra Bhanu Singh vary vehemently argued that the whole appeal had a bated in the lower appellate Court by reason of non-substitution of the mother of respondents to be 36 and 37 and they could not be said to be properly represented by their father as their legal representative, even though they were alleged to be members of a Hindu joint family. It was incidentally argued that the suit being a partition suit the JUDGMENT : and decree passed by the lower appellate court must be treated as a nullity as against the two dead persons who were claiming an interest in the property in suit. To dispose of the incidental part of the argument first, suffice it to say that the argument is wholly fallacious, as the JUDGMENT : and decree of the lower appellate court is not against the two dead minor respondents, it is, rather, in their favour, since they were also claiming an interest in the property. 8. Coming to the more vital part of the argument of learned counsel, in support of this reliance was placed by him on a number of decisions, namely, (1) Venkieswara Pai Rama Pai V. Luis (AIR 1964 Kerala 125 F.B.), (2) Raghunandan Singh V. Rambalak Singh (AIR 1964 Patna 206), (3) Narayan Prasad Ruia V. Mutuni Kohain (AIR 1969 Calcutta 69) and (4) Govindram Mihamal V. Chetumal Villardas (AIR 1970 Bombay 251). To these cases I shall presently refer. But before coming to these decisions I feel inclined to repel the argument of learned counsel for the appellants on one short ground alone. The two minors respondents 36 and 37 in the lower appellate court were, on the pleadings, joint with their father, Asheshar Chaudhary (respondent no. 34). In presence of the parties and within the period of limitation, at least in so far as respondent no. 36 is concerned, an oral application was made before the lower appellate court stating the fact that respondent no. 36 had died and that his father, respondent no. 34 Asheshar Chaudhary, was his legal representative. No objection was taken to this stand of the plaintiff appellants in the court below. 36 is concerned, an oral application was made before the lower appellate court stating the fact that respondent no. 36 had died and that his father, respondent no. 34 Asheshar Chaudhary, was his legal representative. No objection was taken to this stand of the plaintiff appellants in the court below. Rather, it seems, it was taken for granted that the father being the Karta duly represented the estate of the minor also. Evidently, the JUDGMENT : and decree passed by the lower appellate court has been in favour of such minors. The mother of those minors, namely the wife of respondent no. 34, Asheshar Chaudhary has been made a party respondent in this second appeal. She has filed an affidavit here to the effect that her minor children’s estate was being represented by her husband, Asheshar Chaudhary. This being the factual position, the question as to the legal representative of respondents 36 and 37 was not raised nor considered in accordance with the provisions of ORDER :22, Rule 5 of the Code of Civil Procedure. In identical circumstances, it was held by the Supreme Court in (5) Dondapani Sahu V. Arjuna Panda [1969(3) Supreme Court Cases 397], when such a point had been raised and had found favour with the Orissa High Court, and the Supreme Court, while reversing the decision of the Orissa High Court on that point, held as follows: "No objection whatsoever was taken by the aforesaid defendants or any other defendant at that time to this averment. When the Trial Judge struck off the name of defendant no. 4 he accepted the position adopted by the plaintiff that defendant nos. 1 to 3 were the legal representatives of defendant no. 4 for the purpose of the suit. As pointed out in Mulla's Civil Procedure Code, Vol. II at p. 1258 if the defendants have not objected in the suit that a deceased co-defendant is not properly represented they will not be entitled to raise that objection in the appeal. In the present case it can well be said that it was almost by consent of the parties that the name of defendant no. 4 was struck off without impleading his widow and his two sons on the ground that the deceased was represented by defendant nos. 1 to 3 who were already parties to the suit. In the present case it can well be said that it was almost by consent of the parties that the name of defendant no. 4 was struck off without impleading his widow and his two sons on the ground that the deceased was represented by defendant nos. 1 to 3 who were already parties to the suit. It was not open to the defendants to have the matter re-opened in an appeal." In the present case also the point with regard to the maintain ability of the appeal or with regard to defect of parties before the lower appellate court not having been canvassed nor, for the matter, this point having been raised before the learned Single Judge when the appellants had moved this Court in civil revision against the previous JUDGMENT : of remand, it will be giving too high a premium to the appellants to raise this technical point at this stage. In my view, it is not a matter of empty formality, but it is based on a salutary principle of law. If the appellants had raised this question at the proper time and at the proper stage, it could well have been open to the plaintiff appellants in the lower appellate court to take suitable steps for bringing the mother of respondents 36 and 37 of the lower appellate court on the records of that Court. When it was mentioned and was incorporated in the ORDER :sheet of the lower appellate court that Asheshar Choudhary (respondent no. 34) duly represented the estate of minor respondent no. 36 and that too in the presence of the appellants, it should be taken that the present appellants were also satisfied with the stand taken by the plaintiff appellants in the court below. In such circumstances the principle of law as enunciated by the Supreme Court in the case of Dondapani Sahu above referred to must be held to debar the appellants from raising this question at this stage. All the cases on which reliance has been placed by learned counsel for the appellants were cases where the objection with regard to the defect in the frame of the suit, or the appeal, or the matter of abatement, or the matter regarding the representation of the estate of any deceased party was raised before the Court where such defect had arisen. The appropriate court having applied its mind decided one way or the other with regard to the matter regarding abatement or the proper frame of suit. In none of these cases was the point taken for the first time at the second appellate stage. In my view, therefore, none of the cases relied upon by learned counsel for the appellants can help him in the present appeal, and I hold that in the circumstances respondents nos. 36 and 37 must be deemed to have been duly represented by their father respondent no. 34 in the court below. 9. Learned counsel then very vehemently urged that the JUDGMENT : of the lower appellate court being a JUDGMENT : of reversal it was the bounden duty of the final Court of fact to have considered all the evidence and all the circumstances relied upon by the trial court, whose JUDGMENT : was sought to be reversed. In that connection, learned counsel placed reliance on three decisions of the Supreme Court, namely (6) Smt. Sonawati V. Sri Ram ( AIR 1968 S.C. 466 ), (7) Radha Nath Seal V. Haripada Jha ( AIR 1971 S.C. 1049 ) and (8) Shikarchand Jain v. Digambar Jain Praband Karini Sabha ( AIR 1974 S.C. 1178 ). Two Bench decisions of this Court were also relied upon, namely (9) Union of India V. Garbhu Sao (1972 BLJR 646) and (10) Apurba Krishna Chandra V. State of Bihar (Bihar Bar Council Journal 120) The proposition as baldly enunciated by the learned counsel, admits of no exception, for it is well settled that even in an appeal under Section 100 of the Code of Civil Procedure the High Court can certainly interfere with the JUDGMENT : and decree of the final Court of fact, if important pieces of evidence relied upon by the trial court had either been discarded or ignored by the lower appellate court. In the Case of Smt. Sonawati aforesaid the JUDGMENT : of the High Court setting aside the JUDGMENT : and decree of the lower appellate court on the ground that important pieces of evidence were ignored was upheld by the Supreme Court. In the Case of Smt. Sonawati aforesaid the JUDGMENT : of the High Court setting aside the JUDGMENT : and decree of the lower appellate court on the ground that important pieces of evidence were ignored was upheld by the Supreme Court. So also in the case of (7) Radha Nath Seal ( AIR 1971 S.C. 1049 ) the Supreme Court held that if material documentary evidence was not considered by the final court of fact, while reversing the JUDGMENT : of the trial court, it would be a question of law on which the second appellate court would be entitled to interfere. In the case of (8) Shikarchand Jain ( AIR 1974 S.C. 1178 ) the entries in the survey record of rights, namely, Khasra entries, which had presumptive evidentiary value, had been discarded by the lower appellate court while considering the question of possession. That being so, the Supreme Court upheld the decision of the High Court interfering with the finding of the lower appellate court. The two Bench decisions of this Court referred to above are also authorities for the proposition that in a JUDGMENT : of reversal the final Court of fact ought to consider all the reasons which had been advanced by the trial court. All the cases, however, on the facts and in the circumstances of the present appeal, are of mere academic value, for according to the learned counsel for the appellants the lower appellate court has not considered certain portions of the evidence of P.Ws. 1, 3 and 5 as also Exts C. 1 series which, according to learned counsel, had been relied upon by the trial court in coming to a finding with regard to possession of the present appellants. This argument again was advanced in an ingenious way for, in substance, what the learned counsel wanted to argue was that the lower appellate court had not drawn proper inferences of facts from oral and documentary evidence mentioned above. This position the learned counsel took when his attention was drawn by us to different paragraphs of the JUDGMENT : of the lower appellate court wherein the evidence on the question of possession of P.Ws. 1, 3 and 5 has been considered and to paragraph 34 wherein Exts. C-1 series, i.e. Exts. C-1 to C-1/18, have been considered. This position the learned counsel took when his attention was drawn by us to different paragraphs of the JUDGMENT : of the lower appellate court wherein the evidence on the question of possession of P.Ws. 1, 3 and 5 has been considered and to paragraph 34 wherein Exts. C-1 series, i.e. Exts. C-1 to C-1/18, have been considered. It is too late in the day now to suggest that the second appellate court would be justified to interfere with finding of fact arrived at by the final Court of fact, merely because the conclusions of fact had not been properly drawn from an appraisal of the evidence. Decisions are not lacking. I shall, however, refer to two decisions of the Supreme Court in (11) Shri Raja Durga Singh V. Tholu ( AIR 1963 S.C. 361 ) and (12) Nedunuri Kameswaramma V. Sampati Subha Rao ( AIR 1963 S.C. 884 ), where even conclusions or inferences drawn from documents were still held to be inferences of facts unless, of course, the documents so construed were documents of title. In the present case, it cannot be said that there is no evidence to support the finding of the lower appellate court. It cannot, therefore, be validly argued, as was sought to be done by learned counsel for the appellants, that the finding of the lower appellate court that the suit land was not partitioned and had remained joint with the co-sharers for the purpose of maintaining Mostt. Dayabati was in any way vitiated and, if that finding of fact is allowed to stand as I do think it is proper not to interfere with the said finding, then the second finding of law, namely, that the possession of one co-sharer enures to the benefit and to the advantage of all the co-sharers follows as a necessary corollary. The argument of learned counsel, therefore, that the evidence contained in the admissions of P.Ws. 1 and 3 with regard to the physical possession of the appellants on the land in suit was not duly considered and appraised by the lower appellate court is of no consequence. I must hasten to add, however, that it would be wrong to suggest, as was suggested by learned counsel, that the admissions contained in the documentary evidence of P.Ws. I must hasten to add, however, that it would be wrong to suggest, as was suggested by learned counsel, that the admissions contained in the documentary evidence of P.Ws. 1 and 3 have not be taken into consideration by the lower appellate court, as evidently it has been so done in paragraph 34 of the JUDGMENT : of the lower appellate court. 10. For the foregoing reasons. I do not see any merit in this appeal, it is accordingly dismissed with costs. I agree Appeal dismissed