BALALI GOVINDA NARAIN Vs. HIRALAL

JUDGEMENT

(1.) BALAJI Govind Narayan, Plaintiff -Appellant, filed 8 suit for possession of the suit property against Hiralal and Pulsibai on the allegation that the suit property originally belonged to Chunnilal Misher who sold the same to one Dhapubai by a registered sale -deed and Dhapubai in turn bequeathed the house in question to first Defendant by a will and put him in possession of the same; that in 1351 -F first Defendant came! into possession of a part of the house with permission of second Defendant and that later he forcibly came into possession over some other portion; that on 29th Khurdad 1354 F second Defendant instituted a suit for possession of the suit property against first Defendant and during the pendency of the suit, transferred the suit house by a registered sale deed dated 8th Shehreewar 1354F. In favour of the Plaintiff; that second Defendant in collusion with first Defendant did not conduct her case properly with the result that the suit was dismissed for default on 16th Azur 1357P. Plaintiff, now claimed possession of the suit house on the basis of the title acquired by virtue of the sale -deed. First Defendant resisted the claim of the Plaintiff on the ground that Chunilai had adopted one Bansidhar who in turn adopted 1st Defendant and that Chunilai was not competent to transfer the suit property in favour of Dhapubai and that Dhapubai also was not competent to make a will. It was further averred that the Plaintiff could not file a suit inasmuch as he had purchased the property during the pendency of the suit, the suit having been dismissed for default and not restored later. The trial Court on these pleadings framed 8 issues. Parties led evidence both documentary & oral. The trial Court without going into the merits dismissed the suit holding that the suit was barred under Section 52 of the Transfer of Property Act. Plaintiff, therefore, had come up in appeal here.

(2.) SHRI Neti Subrahmanyam learned Counsel for the Appellant argued first that the Court below had fallen into an error in holding that the suit of the Plaintiff was barred under Section 52 of the Transfer of Property Act. He contends that Section 52 is not at all applicable because the suit was dismissed for default and there was no adjudication on the merits. Reliance was placed on Ghanshamdoss Narayandoss v. Saraswathi Bai : AIR 1925 Mad 861 (A)Jagannatha Kono v. Rainachandra Naidu : AIR 1936 Mad 589 (B), Manjeswarakrishnayya v. Vasudeva Mallayya : ILR 4.1. Mad 458 :AIR 1918 Mad 578) (C), Nagubai v. Shamrao (S) : AIR 1956 SC 593 (D). He next contended that the Court below had not at all considered the question as to whether the cause of action in the previous suit and the present suit was the same and without going into that question it was not competent to dispose of the case on the ground that it was barred under Section 52 of the Transfer of Property Act. Relying on Order 9, Rule 9, the learned advocate contended that under that provision the present Plaintiff who had purchased the rights of the original Plaintiff could not file a petition for restoration as this remedy was only a personal remedy open to the original Plaintiff alone. Reliance is placed on Chand Koer v. Partao Singh, ILR 16 Cal 98 (PC) (E) and Gopiram v. Jagarnath Singh : AIR 1929 Pat 685 (P). Lastly it is contended that if the intention of the Legislature was to include in the word 'Plaintiff' used in Order 9, Rule 9, persons claiming through the Plaintiff some provision similar to Section 11 or Section 47, Code of Civil Procedure Code, would have been made.. Sri B. C. Jain, learned Counsel for the Respondents contended that the suit was barred under Section 52 of the Transfer of Property Act and the Court below has rightly held it so. With regard to the argument relating to the cause of action, he, however, contended that the cause of action in the previous suit and the present suit was the same and when the Court held that the present suit was barred under Section 52, Transfer of Property Act, it was not necessary for the Court to have gone into the merits. As regards the argument that the Plaintiff could not file a petition for restoration under Order 9, Rule 9, it is contended that the Plaintiff had purchased the suit property from his wife and as an assignee he could have filed a petition under Order 22, Rule 10, Code of Civil Procedure or he could have filed a petition for restoration under Order 9, Rule 9 read with Section 146, Code of Civil Procedure Code. Reliance is placed on Gopalakrishnamurthi v. Maddireddy, AIR 1949 Mad 882 (G).

(3.) WE do not wish to go into a discussion' as to whether Section 52 of the Transfer of property Act is applicable to this case and whether under that provision the suit would be barred, for, in our opinion, the sole point that has to be considered is whether Pulsibai, the original Plaintiff1, or the Appellant could file the subsequent suit after the dismissal of her suit for default or whether the present Appellant could proceed with the case by filing a restoration petition.