RAJA RAM SINGH Vs. KANHAYA RAI

JUDGEMENT

(1.) This second appeal has been heard along with the application in revision, and this judgment will govern them both. These two cases were originally placed before Meredith 3, (as he then was), who directed that they be placed before a Division Bench for disposal. The second appeal arises out of Title Suit no. 180 of 1946, and the revision out of S. C. C. Suit No. 145 of 1946 (hereinafter to be referred to as title suit and S. S. C. suit respectively.)

(2.) The two principal questions which arise for decision are (1) whether a suit for a half share in the fruits of fourteen mango trees standing on plot no. 6515 of holding No. 66 recorded as gairmazrua malik, against a person who is recorded in the record of rights as being in possession of half share in the trees, is cognizable by the Court of Small Causes; and (a) whether the tight to the half share in the fruits passed to the present appellant, who wag defendant first party in the title suit and plaintiff in the S. C. C. suit, by reason of the transfer made by one Bharat Narain with whom the land on which the trees stand was settled by the then landlord, Mahanaud Sahaya, whose interest has since been transferred to the defendants third party in the title suit.

(3.) The material facts are the following. Mahanand Sahaya was the sixteen annas landlord of the land in question. The plaintiffs in the title suit, respondents before us, alleged that sometime before survey fourteen mango trees were planted by the ancestor of themselves and the defendants second party. The landlord used to appropriate half the fruits of the trees, and the other half was appropriated by themselves and the defendants second party. Mahanand Sahaya settled the land of plot No. 6675 and some other landa on cash rental with Bharat Narain, and recognised him as his tenant. Bhatat Narain sold his interest in the land with the trees to the defendants first party (the appellant) by means of a registered sale deed, dated 14th April 1936. The latter filed a small cause court Suit No. 63/66 of 1943 against the plaintiffs and the defendants second party claiming half share of the fruits. This suit was first decreed ex parte. There was an application under Order 9, Rule 13, Civil P. C. by defendants 3 and 4 (defendants second party in the Title Suit), The ex parte decree was set aside. A contested decree was then passed in favour of the present appellant. The plaintiffs respondents alleged that the decree was obtained by fraudulently suppressing summons and they brought the title suit for two declarations and an order of injunction. The declaration they asked for were, (1) that the decree obtained in the Small Cause Court suit was a nullity and in any view, not binding on them, and (4) that the present appellant was not the landlord and, therefore, not entitled to get half share of the fruits from them. Several issues were joined between the parties, of which Issues 4, 6 and 6 were the most important. Issue No. 4 related to the question if the claim in the title suit was barred by res judicata. Issue No. 5 raised the question if the decree passed in the Small Cause Court suit was valid and binding. Issue no. 6 related to the question if the present appellant had any right to the half share in the fruits. The learned Munsif, who dealt with the suit in the first instance, held against the appellant on all the questions. He held that the appellant had no right to get half share of the fruits, that the suit was not barred by res judi- cata and that no summons was served on the plaintiffs respondents in the Small Cause Court suit. It is to be observed, however, that the learned Munsif did not find any fraud in connection with the Small Cause Court suit. He merely held that no summons was served on the plaintiffs-respondents. On the findings mentioned above, the learned Munsif passed a decree in favour of the plaintiffs-respondents. An appeal was then made which was heard by the learned Second Additional Subordinate Judge who affirmed the findings of the learned Munsif and dismissed the appeal. Then, the present second appeal has been filed in this Court from the decision of the Courts below.