BARU Vs. MAYA RAM

JUDGEMENT

(1.) This is a plaintiff's appeal against a judgment and decree of the District Judge, Ambala, dismissing an appeal against a decree of the trial Court.

(2.) On the death of Mangal, a proprietor in the village, his estate was inherited by his widow, Mt. Nano. She executed a registered deed of gift in favour of her daughter Dayan, but the daughter died in 1919 and the lands were mutated in the name of Sardara, son of Dayan. The husband of payan was Chet Ram. In 1926, Sardara died leaving only a widow, Waryami, and the lands were mutated in her name. She died in 1939 or 1940 and the lands were mutated in the name of Chet Ram, the father of Sardara.

(3.) Upon this the Patlidars filed a suit for declaration that the property left by Mangal was theirs and they were in possession as such. After giving the history of the land they alleged that as Sardara had died issueless, by custom as well as by law, the plaintiffs who were the Pattidars and belonged to the same 'got' had a right to succeed and as they were in possession they were entitled to bring a suit for declaration. The cause of action it was alleged, arose on the 20th of December, 1940, when the defendants refused to accept their rights. It was prayed that a decree for declaration in regard to the land in dispute be passed against the defendants. Objection was taken by the defendants, who were the sons of Chet Ram that a suit for declaration did not lie. On the 18th of June, 1941, the suit was dismissed on the ground that the plaintiffs were not in possession and they refused to amend their plaint. On appeal being taken to the District Judge, it was held that excepting three Khasra numbers the plaintiffs were not in possession of the land in dispute and the Suit would lie only in regard to these Khasra numbers and not with regard to that portion of which they were not in possession. He therefore allowed the appeal in regard to those three Khasra numbers and remanded the case for trial on merits in respect of those fields. On remand the trial Court dismissed the suit on the 4th of December, 1942, under Order IX, Rule 8, Civil Procedure Code. It would thus appear that the suit in regard to three Khasra numbers was dismissed under Order IX, Rule 8, Civil P. C., and no application was made for setting aside the dismissal for default and the suit in regard to the rest had already been dismissed because the plaintiffs were not in possession.