HAMIRA Vs. HAMIRA

JUDGEMENT

(1.) This is a second appeal against the order of the Addl. Commissioner Ajmer, dated 9.8.58 dismissing the first appeal filed by Shri Hamira appellant against the original order of the S.D.O. Gulabpura dated 29.3.1957. The facts of the case which are relevant for the purpose of this appeal may briefly be stated as follows: - -? Hamira appellant and one Pura (who is now deceased) filed a suit in the court of the Munsif, Gulabpura on 15.4.49, which was transferred to the court of the S.D.O. Gulabpura on 13.2.51, alleging that field known Dunga Champa, measuring 12 bighas 15 biswas was held as occupancy tenant by their common aunt. She died issuless and the plaintiffs and defendants filed objections which were however, not accepted. The land was put to auction and an agreement was struck between them that the plaintiffs (appellant Hamira and Pura deceased) would get 2/3rd share and the respondents would get 1/3. The appellant and Pura had paid Rs.700/ - of their share as the auction money. The respondents however refused to abide by this agreement. It was prayed in the trial court that the appellant Hamira and Pura should be declared to be the khatedars over 2/3 area of this field, the land be partitioned and possession be given to them. The suit was dismissed in the trial court and the appellant Hamira alone filed an appeal in the court of the Additional Commissioner, Ajmer without impleading the legal representative of Pura, who had died by then, as appellant or respondent. The learned Additional Commissioner dismissed the appeal without going into the merits of the case on the grounds that on the death of Pura his son Rama was a necessary party and without bringing him on record it was not possible to decide the share of the appellant inter se though the appellant have asked for 2/3 share jointly. Not bringing Rama the son of Pura on record was, in his opinion, fatal to the appeal and he dismissed the same. It is against this order that the second appeal has been filed by Hamira.

(2.) The main contention of the counsel for the appellant was that the learned court below erred in law in dismissing the appeal. He should have applied the provisions of O. 41, R. 4 to the case, and decided it on merits. Even if the legal representative of Pura was, not impleaded as an appellant or as respondent by mistake, the learned court below, it was alleged, should have exercised his discretion in applying the provision of Order 41 Rule 20 if he considered that Pura or his legal representative was a necessary party.

(3.) The learned counsel for the respondent contended that it was for the learned Additional Commissioner to use his discretion in applying the provision of Order 41 rule 20 or Order 41 rule 4 and when this discretion has not been exercised it was not proper for this court to interfere in it.