HARNANDAN SINGH Vs. MAHARANI KUAR

JUDGEMENT

(1.) This appeal was filed by nine defendants Nos. 4 and 8 to 15 who had contested the suit in the court below. Two of these defendants -appellants, namely, Mosst. Maheshwari Kuer and Sital Singh, who were appellants 1 and 2 respectively, died during the pendency of the appeal. Some of their heirs were not substituted in their place and a question arose as to whether the appeal had become incompetent because of their non -substitution. By his judgment dated the 13th of February, 1962, U. N. Sinha, J. held that the appeal had become incompetent and dismissed it. Thereafter there was an appeal under the Letters patent which was allowed and the judgment and the decree of U. N. Sinha, J. were set aside holding that the appeal was competent. After the judgment of the Letters Patent the appeal has been placed before us for final hearing. An application under Order 41, Rule 27, of the Code of Civil Procedure was also filed by the appellants for taking certain documents as additional evidence in the appeal. By order No. 35 dated the 22nd of October, 1962 of the Registrar of the Court the petition was ordered to be put up at the time of the hearing of the appeal, but it has not been pressed before us.

(2.) Mr. Lal Narayan Sinha appearing for the appellants has urged only one point in the appeal, namely, that the suit is barred by limitation and the judgment of the court below on that issue is not correct. In the circumstances it is not necessary to state facts of the case in detail, but facts necessary to appreciate the arguments of Mr. Sinha on the question of limitation may briefly be stated. The plaintiffs instituted the suit claiming the that they were heirs of Bhaju Singh and Dhanpat Singh. According to any them, Bhaju and Dhanpat had two other brothers, Chamari and Daso, who all were separate from one another and had four annas share each. Daso Singh and other persons (not Bhaju and Dhanpat) had executed a simple mortgage bond in the year 1924 and in order to realise the dues under the said mortgage bond, a mortgage suit numbered as 214 of 1939 was filed which was decreed exparte. In execution of that exparte decree the properties of Schedule I were auction -sold on the 16th of November, 1942. Delivery of possession was taken on the 25th of January, 1943. The plaintiffs claim that they had no knowledge of these proceedings and as the executants of the mortgage bond had no authority or right to mortgage the plaintiffs' share in the properties, they were not bound by the mortgage decree or the sale held in execution thereof. Ac* cording to them, the defendants did not acquire any interest in the properties mentioned in Schedule I of the plaint by virtue of the auction -sale so far as the plaintiffs' interest was concerned. They came to know of the decree and sale only on the 10th of Aghan 1365 Fs. when the defendants began to interfere with their peaceful possession and dispossessed them. On these allegations the plaintiffs asked for recovery of possession of their properties in Schedule I. They also claimed partition of their eight annas share in the properties of Schedule II of the plaint as they were not pulling on well with the defendants.

(3.) The suit was originally instituted before a Munsif on the 24th of January, 1955. In paragraph 14 of their plaint the plaintiffs valued Schedule II properties at Rs. 1,000/ -. They did not state what was the value of the properties of the other Schedule. The defendants appeared and challenged the jurisdiction of the Munsif to try the suit on the ground that it was undervalued and beyond his pecuniary jurisdiction. On an enquiry the Munsif found in favour of the defendants and on the 13th of April, 1957, made an endorsement on the plaint as required under Rule 10(2) of Order 7 of the Code of Civil Procedure for its return, to the plaintiffs. The plaint was actually, returned to the plaintiffs' lawyer on the 28th May, 1957. On the 30th May, 1957, it was refiled before a Subordinate Judge. At the time of the presentation of the plaint before the Subordinate Judge, the plaintiffs valued the properties in suit. only at Rs. 5,000/ - and did not accept the valuation of Rs. 30,000/ - as fixed by the Munsif, The question of valuation was reagitated before the Subordinate Judge who accepted the. finding of the Munsif on the question. Thereafter the plaintiffs reamended the valuation and, paid the necessary court fee.