RAMESHWAR PRASAD GOLWARA Vs. KESHAB PRASAD BHAGAT

JUDGEMENT

(1.) This is an appeal by the plaintiffs from the decision of the learned Additional Subordinate Judge, 4th Court, Patna, dated the 31st of March, 1958, almost dismissing their sui:: for declaring that the preliminary and final decree passed in favour of defendant No. 1 (respondent No. 1) in Title Suit No. 65 of 1950 by the Subordinate Judge of Birbhum in West Bengal arc illegal and for setting them aside.

(2.) The plaintiffs' case is that 'plaintiffs Nos. 1 to 8 are members of a joint family governed by the Mitakshara school of Hindu Law, and plaintiff No. J, is the head member and karta of the family.' Their further case is that the ancestral profession, of the plaintiffs is trade. They have been running a Gaddi in the name of Dinanath Triloki Nath at Maroofganj Patna City for the last eight years' which firm is the 9th plaintiff in the. present. In the said Gaddi, defendant No. 3 worked as dandidar and defendant No. 4 had been entrusted with the work of making demands for realization of dues. Defendant No. 1 is the resident of Malharpur Bazar in the district of Birbhum and deals in cloth. On enquiry it was learnt that he filed a title suit, namely. Title Suit 65 of 1950 in the court of the Subordinate Judge at Suri in. the district of Birbhum against the firm Dmanath Trilokinath for rendition of accounts and fraudulently obtained an ex par'e preliminary decree on 15-3-51. It also appears that he got the plaint amended after passing of the said decree and made prayer for inclusion ot plaintiffs 1 to 8 in the category of defendants, which prayer was allowed on 3-11-51, and the said plaintiffs were placed in the category or defendants. NO notice or summons was ever served on any of the plaintiffs of this suit or on the proposed guardian of the minors, and, by suppressing all notices and summonses, defendant No. 1 obtained a fraudulent final decree also on 22-7-52. The plaintiffs have further made out a case that the basis of the claim of defendant No. 1 in the said title suit was wrong and false; that so gur or molasses of the said defendant was ever brought in the Arhat of the plaintiffs or sale; that no contract was entered into between the plaintiffs and defendant No. 1 for its sale: and that the plaintiffs neither sent defendants 3 and 4 to defendant No. 1 nor did they authorise either of them to enter into any contract on their behalf. According to the plaintiffs' case, plaintiff No. 8 was a minor even on the date of the insitution of the Present suit but defendant No.1 got the final decree passed as against him as a major. They also asserted that the Suri Court had no jurisdiction to entertain the above title suit as no part of the alleged cause of action had arisen within its jurisdiction.

(3.) Defendant No. 1 in his written statement has refuted the allegations of the plaintiffs as against him and in respect of his claim and decree.