BECHAI KOERI Vs. SHEO MURAT KOERI AND OTHERS

JUDGEMENT

(1.) THIS is a Defendant's -second appeal from the decree of the Additional Civil Judge of Jaunpur decreeing the suit of one of the two. Plaintiffs for a perpetual injunction to restrain the Appellant from interfering with the Plaintiff's possession of a plot of land in the village. In view of the solitary point of law addressed to me in support of this appeal it is not necessary to consider the findings of the court below. But to decide the legal point it is necessary to state very briefly the relevant facts. Two Plaintiffs filed this suit -Kashi (now dead) and Khaderu. They are said to be cousins. They claimed to be joint bhumidhars of the land in joint possession, and alleged that the Defendants were interfering with their possession; hence the suit. Their claim was contested by one Defendant Bechai but not by the others. He did not deny the Plaintiffs right to a substantial portion of the land but claimed that a small part of it, 2 karis in area, was his and the Plaintiffs had no concern with it. Both the courts below have believed the Plaintiff's story and disbelieved the Defendant. These factual findings were not challenged in this appeal.

(2.) BUT a rather unusual thing happened before the trial court which is the foundation of the argument pressed before me. The suit was filed on 2.6.1955 and the contesting Defendant led his written statement on 19.9.1955. During the pendency of the suit one of the Plaintiffs, Kashi, died and his heirs were brought on record on 2.9. 1958. On 11.8.1960 the surviving Plaintiff Khaderu made an application before the trial court in which he alleged that the suit had been filed under a misapprehension ("galat fahmi''), that the Defendant was in possession of the portion of the land in dispute for a long time, and the applicant Plaintiff had no concern with it, and wanted the suit to be dismissed as far as he was concerned. He also mentioned the fact that the Defendant had agreed not to press for costs. This application was obviously made in consultation with the Defendant who had offered to forego his costs against this Plaintiff. As the suit was based on a joint cause of action, the trial court rejected the application and proceeded with the hearing on merits. It decreed the suit in favour of both the Plaintiffs. On appeal by the Defendant the lower appellate court confirmed the findings of the trial court but held that in view of Khaderu's application the suit should not have been decreed in his favour. Accordingly it modified the decree of the trial court to this extent that Khaderu's suit was dismissed, but of the other Plaintiff decreed. The Defendant has come to this Court in second appeal.

(3.) I cannot accept this argument. I have a serious doubt whether the lower appellate court could reverse the order of the trial court rejecting Khaderu's application. Khaderu did not file any appeal or revision arid the order rejecting his application became final. The learned appellate Judge virtually revived a dismissed application, and I think he could not do this.