KHETRAMOHAN BARAL Vs. MONI BEHERA

JUDGEMENT

(1.) THIS is a defendants' second appeal against the appellate judgment of the additional District Judge of Cuttack-Dhenkanal in Title Appeal No. 44 of 1956 maintaining the; judgment of the Munsif, Second Court, Cuttack, decreeing the plaintiffs' suit (No. 211 of 1950) for a declaration that they Were cash-paying occupancy raiyats in respect of the disputed lands, and for other consequential reliefs.

(2.) IN the aforesaid suit there were 16 plaintiffs of whom plaintiff No. 4. was one dhadi Behera. All the plaintiffs are descended from a common ancestor named panu Behera. The disputed plots were recorded in the current settlement as the occupancy holdings of one Ganeswar Mohanty and his co-sharers who , were the predecessors-in-interest of the defendants. The plaintiffs alleged that the settlement entries were in correct that the status of the defendants was that of tenure-holders and not that of occupancy raiyats and that the plaintiffs were the occupancy raiyats in respect of the disputed lands. The plaintiffs claimed joint interest in the property and there was no allegation either in the plaint or even in the written statement of the defendants that the interests of the various plaintiffs were severable. The main issue in this litigation, was whether the settlement entries were incorrect and Whether the plaintiffs' status was that of occupancy raiyats and not of mere sikimi tenants as recorded in the current settlement papers. During the progress of the suit before the learned Munsif, one Shashi Dei, on 31st january 1955, applied to that court for being substituted in place of her father dhadi Behera (who was reported to be dead) and for amending the plaint accordingly. A copy of this petition was served on all the parties, and on the 10th february, 1955 the learned Munsif wrote in the order-sheet that though both parties were present, no objection was filed to the substitution of Shashi Dei in place of her deceased father Dhadi Behera. Then on the 23rd February 1955 he passed the following order : "both parties file respective haziras. The amendment petition is put up. It is allowed. Substitute as prayed for. To 28-3-55 for trial. Parties to come ready. " due to some negligence in the Munsif's office this order was not implemented and the plaint was not corrected by scoring through the name of Dhadi Behara and inserting that of Shashi Dei in his place. The parties also omitted to remind the court about this matter. The result was that when the judgment was pronounced in favour of the plaintiffs and when the decree was drawn up the name of Dhadi behera continued to be shown as one of the plaintiffs in the decree. In the appeal filed by the defendants before the Additional District Judge (Title Appeal No. 44 of 1956) Dhadi Behera's name was shown as respondent no. 4. The other plaintiffs who filed a cross-appeal also showed the name of Dhadi Behera in their grounds of cross appeal. In the decree of the lower appellate court also, the same error continued and though the defendants' appeal was dismissed Dhadi Behera was shown as one of the respondents (respondent No. 4 ). Similarly, in the second appeal filed before this court the name of Dhadi Behera was shown as respondent No. 4. But during the pendency of the appeal the defendants seem to have discovered this mistake and the appellants' Advocate filed a petition on 4th March 1960 pointing out that dhadi Behera died during the pendency of the suit in the Munsifs court but that the appellants came to know about it, for the first time, only on 19th Nov. 1959. The appellants therefore requested this court to allow the substitution of the name of Shashi Dei in place of Dhadi Behera, in case the court did not hold the decree of the lower court to be a nullity. A single Judge of this court on 28th April 1960 dismissed this petition for substitution. There was some controversy between the parties as to whether the entire appeal would abate as Dhadi's interest was not severable; from that of the other plaintiffs; and the court by its order dated 1st August 1960 reserved this question for consideration; at the time of the hearing of the appeal on merits. So far as this appeal is concerned this was the main question argued before us.

(3.) DURING the hearing of the appeal Mr. R. N. Sinha on behalf of Shashi Dei filed a petition before this court, on the 17 August 1961 requesting us to direct an amendment of the decree of the trial court by substituting her name in place of dhadi Behera as plaintiff No. 4 urging that the failure on the part of the Bench clerk of the Munsif's court to implement the order of the Munsif dated 23rd february 1955 (already quoted) was a clerical mistake which could be corrected even at the second appellate stage. The appellants however objected to such a correction at this stage saying that it would prejudicially affect their interests and that the Prayer ought to have been made earlier. This question may be disposed of in the first instance.