DANEI SAHOO Vs. JAGANNATH SAHU

JUDGEMENT

(1.) THE plaintiff is the appellant against the reversing judgment. The suit was originally brought against Punia Sahu as defendant No. 1 and Lord Jagannath through the marfatdar Anantapuja Badapanda Samanto as defendant No. 2 for declaration of the right of occupancy over the disputed land and for confirmation of possession or recovery of possession if the plaintiff is found to be dispossessed from the disputed land during the pendency of the suit. After stating the facts and contention of counsel His Lordship observed :' '

(2.) ADMITTEDLY , the appeal before the lower appellate Court was dismissed for non -prosecution as against defendant -respondent No. 2 (before the lower appellate Court) and further, there was also no substitution so fir he was concerned. However, dismissal/abatement of the appeal as against defendant No. 2 has been rightly held by the lower appellate Court not to effect the merits of the appeal before him. Dispute of the plaintiff -appellant was essentially with the other defendants, for dedclaration of right of occupancy over the disputed land and for confirmation' of his possession which right the plaintjff was claiming as against them. It is a case Where the main question to be decided is whether the plaintiff is the tenant in respect of the disputed land or whether the defendant No. 1 series are the tenants. As a matter of fact, in the entire body of the plaint, there is no allegation regarding defendant No. 2 who is the admitted landlord in respect, of the suit land and no relief is at all claimed against defendant No. 2. The very cause of action for the plaintiff for the suit was the decision in Criminal Misc., Case No. 84/64 on 8 -12 -1969 in which possession was delivered to the defendant No. 1.

(3.) THE basic principle in a situation where an appeal is dismissed for non -prosecution against one of the respondents is that whether conrinuance of the appeal as against the other respondents would result in the existence of two inconsistent decrees at the same time. The question here however is not that. As has been stated above, defendant No. 2 was not a necessary party and the question whether the plaintiff is its occupancy tenant does in no way affect the defendant No. 2 since its right as landlord has not been affected in any manner. It cannot be said that since the decree passed by the learned trial Court was to the effect that the plaintiff was an occupancy tenant under the defendant No 2, and such decree was not challenged as against defendant No. 2 it became final and hence the decision of the learned lower appellate Court that the plaintiff is not the occupancy tenant under defendant No. 2 would lead to any inconsistency. The defendant No. 2 being not a necessary party at all, the determination of the question between the plaintiff vis -a -via the defendant No. 1 series does not lead to any inconsistency. In the judgment of the lower appellate Court the nature and status of the tenancy, if any, of defendant No. 1 series is not determined. The question as such is left open.