BINDESHWARI PRASAD MANDAL Vs. KUNJI LAL MANDAL

JUDGEMENT

(1.) This 'civil revision and, the second appeal filed by the plaintiffs arise under these circumstances. The plaintiffs claim to have purchased on the 12th April 1943 about nine bighas of land from Harkeshwar Mandal (defendant No. 22), his alleged one-third share in Khata No. 79, the total area of which is about thirty-seven bighas, One Gossain Mandal had purchased in the same year, that is 1943, some land from Mahanthi Mandal, deceased husband of defendant No. 19. Finally, the plaintiffs claim to have purchased on the 9th, February, 1948 about seven Bighas of land from Gossain Mandal in Khata No. 616, the total area of which is about forty-seven-bighas. The common ancestor of the various sets of defendants was one Labdhu Mandal. According to the plaintiffs' case, he had six sons named Govind, Gokhul, Bansi, Pithu, Kankal and Bhajan. Their case, further, is that Gokhul, Pittu and Bhajan died issueless. Govind had two sons, Dorik and Choa. Defendants 1 to 9 of the defendants first party are said to be the defendants of Dorik and Choa. Defendants 22 to 24 of the category of the defendants fourth party are the descendants of Bansi. Kankal had two sons, Raudi and Lalji. Defendants 10 to 18 of the defendants second party are the descendants of Raudi and defendants 19 to 21 of the third party are the descendants of Lalji. The plaintiffs' case is that all these branches were in separate possession of some lands for the sake of convenience but there was never any partition of the lands by metes and bounds between the three existing branches, the remaining three branches having become extinct on three sons of Labdhu Mandal dying issueless. They, therefore, filed a partition suit for carving out, out of the joint lands, the areas that they had purchased from some of the co-sharers. The suit was mainly contested by defendants 1 to 9. Defendant No. 1 died during the pendency of the suit; but, for the sake of convenience, in this judgment, he will be referred to as defendant No. 1. Their case, in the main, is that the lands had been partitioned amicably by metes and bounds in the year 1319 Fasli. The parties have been dealing with the lands, transferring and purchasing them separately, since then. In their defence had joined some of the other defendants out of the defendants second to fourth parties. Some have supported the case of the plaintiffs. In defendants' group, the minor defendants are defendants 15 to 18, 20, 21, 24; 28 and 29. It seems that the natural guardians under whom these minors were placed in the plaint did not file their appearance on, behalf of their wards. Pleader; guardians were appointed as guardians ad litem. A com promise is said to have been entered into between the plaintiffs and the defendants and have agreed to the passing of a partition decree in their favour on the basis that the plaintiffs had one-third share, as claimed to have been purchased by them. Without detailing the facts with reference to which another plea was taken by the defendants first party, suffice it to say that, according to them, Dorik was the son of Bhajan who had not died issueless and, therefore, in the year 1319 Fasli, there were four divisions of the lands giving one-fourth share to each branch.

(2.) The learned Subordinate Judge who tried the suit decreed it by his judgment dated the 20th March, 1952. He decreed it on contest against the defendants first party and in presence of the other defendants who had filed the compromise petition. The learned Subordinate Judge accepted the case of the plaintiffs, rejected the case of previous partition set up by the contesting defendants and also seems to have rejected their case that there were four, existing branches in the family of Labdhu Mandal, each entitled to one-fourth share. Accordingly it appears, he granted a decree to the plaintiffs on the basis of one-third share to each of the three branches. The defendants first party went up in appeal which was registered and numbered as Title Appeal 23 of 1952.

(3.) In this title appeal, the minor defendants who were represented by the pleader guardians ad litem in the trials Court were shown as respondents under those very guardian's, as, obviously, they had to be. The defendants first party appellants were asked to deposit a total sum of Rs. 64 as guardians' cost for the four sets of pleader guardians, Rs. 16 per each set. They failed to make the deposit within the time granted by the lower appellate court. The result was that the names of the minor respondents who were, as stated above, defendants 15 to 18, 20, 21, 24, 28 and 29 were struck off by an order of the lower appellate court on the 16th September 1952. On the 18th January 1954, the major respondents who were also the natural guardians of the minors aforesaid but were not representing them in this litigation filed an application supporting the case of; the defendants first party appellants. During the hearing of the appeal, when it was taken up in the first instance by the learned Additional District Judge, Mr. Brahmadeva Narain, a point was argued on behalf of the plaintiffs-respondents there that the whole appeal had become incompetent as the names of the minor respondents, for failure to deposit the guardians' cost, were struck off. Realising the difficulty in their way, the defendants first party appellants filed an application in the lower appellate Court on the 16th January 1956 that the said minor respondents were not necessary parties to the appeal, as they had not contested the suit nor was any relief claimed by the appellants as against them. Yet the appeal was dismissed by Mr. Brahmadeva Narain, as incompetent on the 25th January 1956. On merits, however, he held that the case of previous partition set up by the contesting defendants was true and the lands had been partitioned amicably long long ago but the decree for partition had to be maintained, as the appeal arising out of the partition suit had become incompetent in whole in absence of some of the parties, who were no longer parties to the, appeal. The defendants first party came up to this Court in Second Appeal No. 244 of 1956.