MOHAMMAD KHALIL KHAN Vs. MAHBUB ALI MIAN

JUDGEMENT

(1.) THIS is a consolidated appeal resulting from the consolidation of two appeals, Appeal No.5 of 1942 and Appeal No.6 of 1942, from two decrees of the High Court of Judicature at Allahabad dated October 28, 1941, which affirmed two decrees, one of the Court of the Special Judge, First Class, Shahjahanpur, and one of the Court of the Civil Judge, Shahjahanpur, both dated January 14, 1939.

(2.) APPEAL No.6 of 1942 arises out of a suit (Suit No.2 of 1938) instituted by appellant No.1 and one Fida Ali Khan, on whose death appellants Nos. 2 to 5 were brought in as his representatives for the recovery of certain property in the Shahjahanpur district. Respondents Nos. 1 to 4 hereinafter called the Mahbub brothers, and their respective wives Nos. 5 to 8, to whom they had purported to transfer parts of the said property, were the defendants in the said suit. The suit was dismissed by the Civil Judge, Shahjahanpur, and the dismissal was confirmed by the High Court on appeal.

(3.) THE only question for decision in the main appeal is whether the suit No.2 of 1938 instituted by appellant No.1 and Fida Ali Khan, since deceased, is barred by Order II, Rule 2, of the Code of Civil Procedure, 1908. Both Courts in India held that it was barred. If the question is decided in favour of the appellants, the other issues left undecided by the High Court will have to be decided.