BHAIRO AND OTHERS Vs. SHEIKH UZIRALI

JUDGEMENT

(1.) This was a suit by the plaintiff to recover the rent of certain tar and date-trees. The special appellant intervened in the case under section 77, Act X of 1859, on the ground that he had been before and up to the time of suit in the receipt and enjoyment of that rent; and one of the defendants appeared and supported the intervener's contention. The Court of first instance dismissed the plaintiff's suit, on the ground that the intervener had proved that he had been and was in the receipt of the rent. There was a question, apparently, before the Deputy Collector, with regard be the amount of the share which each party claimed; but on the question, under section 77, the Deputy Collector found that the intervener had been in the receipt of the rent which the plaintiff claimed.

(2.) The Judge on appeal held, that, as in a previous suit for rent between these parties in 1860, the present special appellant had intervened under section 77, and had failed in his intervention, and had been referred to the Civil Court, he was now concluded from intervening again in the same litigation, as no change was shown to have taken place in the status of the parties. He likewise found, with regard to an objection made by the special appellant as to the identity of the trees of which rent was claimed, that as the plaintiff had filed the former decree, and alleged that it covered all the trees in the 6-anna share, it was for the defendant to give some evidence to the contrary, and as he did not give that evidence, he considered a decree should pass for the plaintiff.

(3.) It appears to me that the Judge's decision in this case is wrong, and should be reversed. Even if we were to admit, for the sake of argument, that the decree, which was passed in December 1860, did decide against the intervener, on the ground that he was not at that time in the receipt and enjoyment of the rent, it does not follow that the intervener should not at some subsequent period be able again to come into Court, and make substantially the same defence. The words of the section only make it necessary that the party who intervenes should prove that he had in good faith received and enjoyed the rent, before and up to the time of the commencement of the suit; but there is no specific time mentioned in the section within which such enjoyment is to be proved. It is quite possible, therefore, that although the intervener might not have been in the receipt and enjoyment of the rent of these trees in 1860, he might have been so in subsequent years, in 1866 or 1867 for instance; and there is nothing in the section, as it appears to me, to prevent him from proving in a subsequent suit the fact that he had been in such possession and enjoyment.