DHANAI SARDAR Vs. TARAK NATH CHOWDHURI

JUDGEMENT

(1.) This is a second appeal in a suit instituted by the plaintiffs-appellants, to recover possession of five bighas land on declaration of their jote right which was created by a patta, dated the 2nd Kartick 1294, granted by the pidnidar. The suit was originally decreed against the seven defendants, including the defendant No. 7 Tarak Nath Chowdhury, who is the respondent in this appeal, and against whom the suit was decreed ex parte, on the 29th September 1902. The defendants Nos. 1 and 4 preferred an appeal from that decree, but it was dismissed on the 12 February 1903, and on the plaintiffs taking out execution, the objections of the defendants were disallowed (by the Munsif) on the 11 March 1905 and (by the Subordinate Judge) on the 15 July 1905. Meanwhile, on the 23 April 1903, the defendant No. 7 applied under Section 108 of the old Civil P. C., to have the ex parte decree set aside as against him, and his prayer was granted by the Munsif on the 23rd December 1903. The suit then proceeded, with the result that it has been dismissed against the defendant No. 7 by both the lower Courts.

(2.) Plaintiffs appeal, and, on their behalf, it has been contended, first, that the order of the Munsif of the 23 April 1903, setting aside the ex parte decree against the defendant No. 7, was passed without jurisdiction because the original decree had already beet affirmed on appeal; secondly, that at all events, the entire suit should not have been dismissed, the proper procedure being, to have ascertained the share in the disputed land, of the defendant No. 7 and to have dismissed the suit to the extent of his shall and, thirdly, that the lower appellate Court has fallen into error in estimating the value of the evidence, including the report of the Civil Court Commissioner who conducted an enquiry after the revival of the suit.

(3.) There is no force in the third contention. The case involves a consideration of the precise situation of the plaintiffs jote land; and, though the eastern boundary was, originally, the one in dispute, the Subordinate Judge, concurring with the Munsif, has placed the jote land on the west of the disputed land. This finding has been arrived at on the whole evidence it is fortified by other fact, also, found, that the plaintiffs suit is barred by limitation.