INDRA DEO TIWARY Vs. SAHDEO RAI

JUDGEMENT

(1.) This is an application in revision directed against an order by which the court of appeal below disagreeing with the trial court has held that a suit has not abated.

(2.) The plaintiff instituted a suit for confirmation of possession and partition alleging that his father and the defendants' ancestor who happened to be his father's brother, had become tenants of certain lands. It is said that there was a proceeding under section 145 of the Code of Criminal Procedure between the plaintiff and defendant first party which was decided against him. Hence he filed a suit for a declaration that he and defendants first party both were in possession of the lands and were entitled to equal shares, and further he prayed for a partition of the lands accordingly. It appears that one of the defendants, defendant no. 7, died on the 13th of June, 1966, the date alleged by the petitioner who is defendant no. 5, on the 19th of August, 1966, the plaintiff made an application to the court drawing its attention to the fact defendant no. 7 was dead and intimating that his heirs, namely, his sons, were already on the record and that the fact be noted. It appears that the defendants appeared in September, 1966 and filed written statement. Thereafter issues were settled and the suit could not be taken up for hearing for some time. When it was taken up the plaintiff adduced evidence and the plaintiffs evidence was closed. Thereafter the defendants started examining their witnesses. During the course of the hearing thus on the 24th of February, 1971, the defendants filed a petition that the suit had abated on the ground that defendant no. 7 Sheonandan Tewari had died leaving behind not only the sons who were on the record but also four daughters who were not impleaded. The plaintiff denied the existence of the daughters which led to an enquiry and ultimately a finding that he had left four daughters as stated by the defendants. The trial court thus held that the suit had abated on account of their not being impleaded as parties. The appellate court reversed the findings. Hence this application.

(3.) Counsel for the petitioner has urged that from the circumstances of the present case it appears that the plaintiff had deliberately omitted to implead the daughters in the place of their deceased father and as such the doctrine of representation which has been applied to the facts of the present case by the lower appellate court could not apply and thus the suit must be deemed to have abated. In this connection counsel has placed reliance on a finding of the trial court where in the learned Munsif says that it appears that the plaintiff had deliberately omitted to implead the daughters. The lower appellate court has not gone into this point. Counsel for the opposite party has, however, urged that the finding is on the face of it erroneous because there is no evidence in the case to show that they knew about the existence of these daughters and yet falssly alleged about their non- existence. The question arises whether the denial of the existence of daughters could be said to be false to the knowledge of the plaintiff. Question further arises whether the plaintiff could have got any benefit by denying the existence of the daughters. He would make a deliberate denial only when he could get any advantage thereof. The present suit was one for declaration that the defendants first party and the plaintiff both are entitled to property and for partition of the lands between them as such. The suit is not meant for dividing the lands between the defendants interprise. In other words, in the present suit whether the daughters are there or not, the point to be decided is common between them and their brother who are already on record. In other words, there is no special case which the daughters could have made out which cannot be considered in their absence, though their brothers are on record Next, there does not appear to be any reason to say that the plaintiff would get any benefit out of the non-impleading of the daughters He claims only half share in the property and the other half is to go to the defendants admittedly. The question as to whether the daughters would be entitled to any share in the latter is not a mutter which is going to decide in the suit. The plaintiff can get at last his half share or at the worst nothing. There does not at all appear any pood reason for saying that he had deliberately not impleaded the daughters knowing fully well about their existence.