DIP NARAIN SINGH Vs. KEDAR NATH SINGH

JUDGEMENT

(1.) This second appeal by the defendants is directed against a decree passed in favour of the plaintiff-resnondents in a suit filed by them for declaration of title and recovery of possession with respect to suit property.

(2.) The appeal stood dismissed against minor respondents Nos. 6 and 7 for non-compliance of order dated 18-12-1979. The matter was then placed before the Bench with a note as to whether the entire appeal has become incompetent. The Bench by its order dated 12-2-1980 directed that the incompetency matter will be decided at the time of the hearing of the appeal.

(3.) In order to appreciate as to whether the appeal has become incompetent on account of its dismissal against minor respondent Nos. 6 and 7, certain facts will have to be kept in mind. The suit property is a house which belonged to two brothers. The heirs of Ram Bharosa Singh are the plaintiffs whereas the descendant of Sheo Parsan Singh are defendants. Both sides agree that there was a partition between Ram Bharosa and Sheo Parsan but according to the plaintiffs on partition the suit property fell in the share of Ram Bharosa whereas according to the defendants it fell in the lot of Sheo Parsan. The defendants also claimed alternatively that even if it was held that the suit property was allotted to the branch of Ram Bharosa yet the defendants had acquired title to it by prescription. But the finding as recorded by the Court of appeal below is that the suit property was allotted to the branch of the plaintiffs. It has also found that the defendants did not acquire title by prescription. On these findings the suit has been decreed. Plaintiff No. 1 was the grandson of Ram Bharosa and plaintiffs Nos. 6 and 7 were the grandsons of plaintiff No. 1. The suit was was filed by all the plaintiffs in their own individual capacity although they were members of a joint family. The lower appellate Court awarded a decree to the plaintiffs. The decree as against plaintiffs Nos. 6 and 7 became final as the appeal stood dismissed against them for non-compliance of the order dated 18-12-1979.