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8. The first two contentions of Mr. Muzumdar in regard to the suit being bad for defect of parties and the non-representation of the deity or the debottar estate in the Title Suit of 1916 can be easily disposed of. The defendants alleged that some of the 'shebaits' of the deity have not been impleaded in the present suit. The cause of title of (?) the plaint shows that only three persons have been arrayed in the category of defendants first party as 'shebaits' of Shree Shree Ishwar Thakur Krishna Chandramajee Malik Debottar Estate, are Kumar Jagdish Chandra Singli, (sic) Arun Chandra Singh and Rani Haresh (sic) Dasi, executrix of the estate of Raja Man (sic) Chandra Singh Bahadur. The evidence (sic) Arun Chandra Singh (D. W. 1) defendant (sic) the action is that Kumar Bimal Chandra (sic) Kumar Amaresh Chandra Singh and Kumar Brindaban Chandra Singh, although shebaits were not included in the suit. It is essential that where an objection is raised to the frame of the suit on account of defect of parties it should be done at the earliest possible opportunity and the names of the persons omitted should be specifically mentioned so as to enable the other side to add those persons as parties to the suit if necessary. If this is not done, the objection would be deemed to have been waived, and the fundamental rule is that suit shall be defeated by reason of the (sic) joinder or non-joinder of the parties (see Order, Rule 1 and Rule 13, Civil P. C. ).

The written statement in para 23 merely stated that the suit was bad for defect of parties as all the shebaits of the deity had not been impleaded, and it was not until the stage of the evidence that their names were disclosed. (sic) attention has been drawn on behalf of the appellants to para. 7 of the written statement where it was said that defendant 3 was a shebait of the said deity as executrix of the estate of the late Raja Manindra Chandra Singh and since the heirs of the latter came of age she has ceased to be a 'shebait'. Here again the names of the heirs have not been mentioned; nor has it been stated as to when these heirs came of age. The objection, therefore, was vague and the plaintiff could not take any action on such objections. The Register D (Ex. 12), however, shows that the said heirs Kumar Bimal Chandra Singh, Kumar Amaresh Chandra Singh and Kumar Brindaban Chandra Singh came to be mutated in place of the deceased Raja Bahadur, and on removal of the name of their mother Rani Haresh Mukhi Dasi, defendant 3, by an order of the Revenue Officer dated 16-3-1943. The present suit having been filed on 12-2-1943, there is nothing to indicate that the suit as instituted was not properly framed and all the shebaits representing the deity were not parties to the suit. In that view of the matter it is unnecessary for me to examine the various decisions cited by the appellants to support the contention that all the 'shebaits' of the deity should have been impleaded as parties to the suit, becasue otherwise the suit could not proceed. Those decisions, in my opinion, are no autho-rity for this wide contention of the appellants; but in the present case I have already shown that all the shebaits representing the deity were parties to the suit when it was instituted and the suit could not be said to be bad for defect of parties. If the 'shebaiti' interest devolved on these heirs during the pendency of the suit, it was open to them to apply for being added as parties, and they could not take advantage of their own omission to do so, because the entire 'shebaiti' interest was represented in the suit as originally framed. The provisions of Order 22, Rule 10, Civil P. C., are merely enabling provisions and no penalty is prescribed under the rule for failure to substitute a person upon whom the interest of a plaintiff or defendant (sic) while a suit is pending see - Harihar (sic) v. Karu Lal', AIR 1935 Pat 488 (A), and (sic) -- 'Joti Lal v. Sheodhayan Prasad' AIR 1936 Pat 420 (B). This contention, therefore, throughout any merit.

9. The other contention is equally unsound.

in dealing with this point one has to recall the facts relating to Title Suit No. 574 of 1916. The plaint of the suit is Ext. 5 (a) and it shows that the suit was filed against Kumar Birendra Chandra Singh Bahadur, Arun Chandra Singh and Rani Debendra Bala Debya (executrix to the estate of late Kumar Suresh Chandra Singh) as defendants first party. There were certain other defendants second party in that suit whom! it is not necessary to mention. It is true that in the plaint these defendants were not described as shebaits of the debottar estate, though in the present suit they have bean so discribed. It is obvious that defendant 2 in that suit is the same as defendant 2 in this suit. The defendant 1 in the present suit is son of defendant 1 of the previous Title suit, & the defendant 3 in this suit again represents as executrix of the estate which was held by Rani Debendra Bala Debya, defendant 3 of the 116 suit. The suit of 1916 was for declaration of title to & recovery of possession of certain lands described in the schedule to the plaint appertaining to villages Sirsia Kalan, Bishunpur Bhayaram and Goalpara belonging to the pltffs., & the plaint alleged that the defts had come into possession of those lands claiming them as parts of their village Charney which adjoined the villages of the plaintiff. All these villages lie in the districts of Bhagalpur and Purnea, and it is admitted by the defendants first party that in these districts the defendants have no property except the shebaiti property, and that their personal estate was separate and distinct from the Paikpara 'Debottar' estate. It is, therefore, obvious that they could not have been impleaded as parties to the suit except in their capacity of shebaits representing the 'debottar' estate. In their written statement (Ext. B) paras. 23 and 24 the defendants asserted that the disputed lands appertained to village Charney which formed part of the debottar property of Thakur Krishna Chandramaji of which the defendants were the trustees, and that the defendants were in possession of the disputed lands not in their personal capacity but as trustees of the aforesaid 'Debottar' estate.

In that capacity and with consciousness of this position the defendants entered into the compromise which was later incorporated in the decree of the Court. The mere omission, therefore, to describe the defendants first party as shebaits in the action would not render the decree ineffective and not binding on the 'debottar' estate when these defendants could not be parties to the suit except in their capacity as 'shebaits' and could not enter into any such compromise save in that capacity. This compromise has never been repudiated by the defendants and in fact in their own suit of 1921 they referred to this compromise decree of November, 1917 in the aforesaid Title Suit No, 574 of 1916. This is obvious from paras. 10 and 11 of the plaint of their suit (Ex. 5). Again in their written statement in Title Suit No. 29 of 1929 instituted by the plaintiff they relied upon this compromise petition and the compromise decree passed in the Title Suit of 1916, as it appears from paras. 3, 4 and 5, of that written, statement (Ext. 4). It is, therafore, too late in the day to contend now that the compromise decree was illegal and ineffective and could not bind the interest of the idol. Though the idol is the owner of the properties, the right to sue or be sued is vested in the she-baits see -- 'Maharajah Jagindra Nath v. Rani Hemanta Kumari', 31 Ind App 203 (PC) (C), and these sbebaits being parties to the suit (though not described as such) and it being obvious that they could not have been parties in any other capacity, in my opinion, the deity was substantially represented in the Title Suit of 1916, and the compromise decree in that suit is binding upon the debottar estate. The defendants first party having more than once acted upon the compromise decree, their plea on this score cannot be sustained. There is nothing to show that these defendants neglected or acted prejudicially to the interest of the idol in that litigation. The learned Subordinate Judge has arrived at his findings on these points after a careful analysis of the evidence and I entirely agree with those findings. The contentions, therefore, must fail for the reasons stated above.