DOMAN MIA Vs. KANAI LAL GOSWAMI

JUDGEMENT

(1.) THIS is an appeal from the judgment and decree passed by Sri A. K. Chatterjee Suhordinate judge 2nd Court Hooghly, dated 27. 7. 1964 in Title Appeal No 188 of 1963 affirming those or Sri S. N. Mukherjee Munasif 1st Court Chandernagore dated 26. 3. 1963 in Title Suit No. 108 of 1960/187 of 1962. The defendant is the appellant in this Court. The case of the plaintiffs may briefly be stated as follows :-The plaintiffs have retained in their khans possession the suit and upon the same a market known as Champdani bazar is situated The defendant used to erect his tea stall daily on the khans schedule land and used to pay 5 annals as toll to the p1aintiffs The defendant has illegally erected a temporary shed on the land. Smoke coming out of the defendant's oven for making tea has damaged the plaintiffs' corrugated tin shed by the side of the defendant's khan schedule shed. The defendant has no right to stay. Hence the suit for eviction, and recovery of possession and damages.

(2.) THE case of the defendant is that he took lease of one cottah of land at a rent of Rs. 7-8 annas from one deep Narain Sinha, who was plaintiffs' lessee of the champdani bazar and that on the expiry of Deep Narain Sinha's lease one Radhika Ranjan Bose became the lessee and the defendant's rental was raised at Rs. 9-6 annas by radhika Ranjan Bose and that the defendant's tea stall is a permanent shed and that he is a non-agricultural tenant on the suit land and not a daily-hawker of tea and that he has caused no damage to the plaintiffs' corrugated tin shed. The learned Munsif decreed the plaintiffs' suit holding that the defendant was a licensee and that the licence was revoked. The learned subordinate Judge, however, held that the defendant is a trespasser and he used to pay a certain sum as toll daily to the plaintiffs having no right in the land. Being aggrieved, the defendant as filed the present appeal. During the tendency of this appeal respondent No. 3, one of the plaintiffs, died and his legal heir were duly substituted. But after that the respondent No. 2, another plaintiff, also died on August 5, 1972. By order of this court dated 29th of May 1973 the appeal stood abated as against the respondent No. 2. Long after only on 25th of May 1977 an application was filed by the appellant for substitution of the legal heirs of the respondent No. 2 after setting aside abatement This application after contested hearing was rejected by Anil Kumar Sen, J. on 2. 6. 77.

(3.) MR. Sailendra Bhusan Bakshi, learned Advocate appearing on behalf of the respondents, takes a preliminary point, namely, that when the appeal has abated as against the respondent no. 2, i. e. one of the plaintiffs and as the three plaintiffs got a joint decree fox recovery of possession, it must be held that the appeal has abated as a whole and the appellant therefore cannot proceed with this appeal. Mr. Bakshi submits that if the appellant succeeds in this appeal then the suit which was brought by the respondents nos. 1 and 3 will be dismissed and the decree which has already been obtained by the respondent No. 2 will remain. Thus there will be two inconsistent decrees. Mr. Bakshi in this connection submits that the test whether an appeal abates in part or as a whole depends on the fact whether there may be two inconsistent decrees as a result of the decision of the appeal. In support of his contention Mr. Bakshi first refers to a decision reported in 30 c. W. N. 45 (Manindra Chandra Nandi v. Bhagabati Devi Chaudhurani and others ). In this case the plaintiffs jointly sued for recovery of possession of certain lands on declaration of title thereto and obtained a decree for joint possession. The defendant appealed to the High Court. During the pendency of the appeal one of the plaintiff-respondents died. The appellant applied after the period of limitation to have the abatement of the appeal as against that respondent set aside and for substitution of his legal representative. A Rule was issued but it was discharged. Thereupon the appellant filed an application to have the legal representative of the deceased respondent added as a party. At the hearing of the appeal a preliminary objection was taken to the competency of the appeal. It was held by Their lordships that "the appeal was incompetent and could not proceed in the absence of one of the plaintiffs-respondents. " It was further held that "order 41 Rule 4 is limited to the case of appellants and does not entitle a person against whom the decree is passed to have it varied in the absence of a person in whose favour it was made. " The facts of the case are very much similar to the facts of the present case.