AMAR NATH SINGH AND OTHERS Vs. ALI MOHAMMAD

JUDGEMENT

(1.) The dispute in this second appeal is defined to certain trees standing on plot No. 163. Far back on Aug. 22, 1933 the defendant no. 1 Raghunath Singh (since dead) made purchase of these trees in auction sale together with certain trees on plot no. 162 in execution of decree obtained by one Mannu Lal Awasthi, According to the plaintiffs, the defendants were wrongly recorded in the revenue papers concerning these plots in the year 1363F. The suit was instituted on Dec. 13, 1957 by the plaintiffs seeking relief of permanent injunction to restrain the defendants from interference against his alleged possession ever these trees. In defence, the defendants 1 and 2 set up their title by virtue of their purchase made in auction sale and pleaded also that they have been in continuous possession. The claim of the plaintiffs was stated to be barred by limitation, in the alternative.

(2.) The issue as to whether the defendants are Sirdars of the plot No. 162 was referred to the revenue court which gave its finding on Dec. 9, 1958 finding that they were Sirdars in respect of the cultivatory portion of that plot. The Munsif Banda decided the suit on Aug. 17, 1959 finding that the plaintiffs did not have right, title or interest in the trees in dispute. The defendants were also held to be in possession. The suit was, therefore, dismissed. The plaintiffs preferred civil appeal No. 74 of 1959 against the decree. During the pendency of the appeal the plaintiff no. 1 (appellate) died. The death took place on April 1, 1960. The co-appellant, namely, the plaintiff no. 2 applied for substitution of himself as the legal representative. An objection was raised to the effect that the plaintiff no. 1 had left his widow, namely, Smt. Saliman and she is the legal representative. The lower appellant court recorded the finding dated Oct. 21, 1961 to the effect that Smt. Saliman widow is there and she is the heir but nonetheless it took the view that the appellant no. 2 plaintiff, could himself claim to have the right to pursue the appeal in capacity as a co-sharer and, therefore, the substitution of Smt. Saliman was not required. On merits of the appeal, the lower appellate court did not examine the issue relating to the possession over the trees and there was no finding recorded as to whether the defendants had been in possession as claimed by them. The appeal was, however, allowed on Dec. 16, 1961 whereby the suit of the plaintiffs was decreed.

(3.) Against this decree of the lower appellate court, the defendants preferred second appeal No. 1235 of 1962 in this Court which was decided on April 5, 1968. Raghunath Singh the defendant no. 1 having died during the pendency of that appeal his legal representatives were brought on the record. This Court took the view that the lower appellate court had erred in not recording a specific finding on the point whether the trees in dispute had been sold in auction and as to whether after the alleged execution of the sale possession over the trees had been obtained by Raghunath Singh and whether the purchaser and his heirs had continued to retain possession. The appeal was accordingly allowed and the case remanded to the lower appellate court for deciding the same afresh in the light of these observations.