RADHEY SHYAM Vs. NANAK RAM

JUDGEMENT

(1.) THIS second appeal has come up for hearing before us as a result of an order of a learned Single Judge of this Court requiring the second appeal to be referred to a larger Bench for disposal.

(2.) THIS is a Defendant's second appeal against the judgment of the II Additional Civil Judge, Agra, confirming the decree of the trial court and decreeing Plaintiff's suit for damages.

(3.) THIS suit was contested by the Defendant on the grounds inter alia that the Plaintiff did not constitute a joint Hindu family with his father Mangoo Mai and the property was self acquired property of the latter. Suit was incompetent for want of succession certificate. Plaintiff's father had filed appeal No. 226 of 1954, referred to before, in respect of relief of ejectment only and not in respect of his claim for pendente lite and future mesne profits. This being so, the Plaintiff must be deemed to have abandoned that part of his claim and consequently, the instant suit was barred by Order XXIII Rule 1 and Order II Rule 2 Code of Civil Procedure. A second appeal was said to have been filed against the judgment of the first appellate court and that was still pending. The claim of the Plaintiffs, was said to be barred by limitation. Plaintiff was not entitled to claim any interest and further that Plaintiff's suit was barred by Section 11 Code of Civil Procedure. It was also alleged that the suit as framed was not maintainable and the court had no jurisdiction to entertain the same.