KISHORI JENA Vs. RUPA JENA

JUDGEMENT

(1.) THIS appeal arises out of a simple suit for declaration of title to and possession of lands appertaining to Khata 46 in Mouza Kuarnpur, after setting aside the rent sale in favour of defendant 1, Rupa Jena. The plaintiffs' case was that the suit properties were jointly recorded in the names of their father, Bichhanda and their uncles Dukhei (pro forma defendant 3) and Arts (pro forma defendant No. 4). Bichhanda and Dukhei were uterine brothers and Arts was their first cousin. Defendant 2, Motilal Pandit, is the landlord of the holding and defendant 1 is the auction -purchaser who purchased the property in execution of a rent decree in suit No. 1794 of 1938 -39 on 22 -12 -39 and took delivery of possession through Court on 15 -9 -1941.

(2.) THE defendants did not specifically allege in their written statement that any amendment had been made. They stated generally that the decree and the rent sale were fraudulent and illegal. The plaintiffs exhibited a certified copy of the plaint in R, S. Case No. 1794/39, as Ext. 5 in the present case. It shows that the plaint was filed in the name of Babu Ganeshlal Pandit as plaintiff, by one Durjyodhan Biswal, presumably his registered power -of -attorney holder. There is no mention of Motilal Pandit in the certified copy, as having been brought on the record, nor is there any mention of any amendment having been made. The order sheet in that suit has not been filed and the only evidence to show that Motilal was the decree -holder is afforded by the sale certificate. No attempt has been made to prove that Durjodhan was the agent of Motilal Pandit at the time he filed the plaint. The trial court has observed that the omission of the name of Motilal Pandit in the plaint was an accidental omission 'as the printed form, being in the name of Ganeshlal Pandit was used in the rent suit in question'.

(3.) THE next question is whether, if the decree and the rent sale following it are held to be a nullity, the plaintiffs alone can obtain possession of the property which belongs to' them and pro forma defendants 3 and 4 jointly. The contention for the respondents is that Arts (pro forma defendant 4) had filed a petition under Order 21, Rule 90, C. P. C., and that it was dismissed; and that similarly Dukhei (pro forma defendant 3) had filed a suit for setting aside the sale and that it had been dismissed for default. Learned counsel for the respondents therefore contends that the plaintiffs should be debarred from claiming any relief as their cosharers had already agitated the matter, one, without success. Admittedly the suit filed by Dukhei was dismissed for default of appearance and no question of 'res judicata' would arise. Art's application under Order 21 Rule 90, C. P. C., was dismissed for the reason that it was filed out of time. But as the decree itself was a nullity these proceedings would not have any effect on the right of the plaintiffs or their cosharers.