JAWAHAR BANO Vs. SHUJAAT HUSAIN BEG

JUDGEMENT

(1.) These two connoted appeals are appeals by the defendants in Baits for profits under Section 165 of the Tenancy Act against their co-shares. It is admitted that the plaintiffs are entitled to a 1/6th share of the total profits.

(2.) Second Appeal No. 1296 arises out of a suit which was brought on the 21st of July 1916. The suit was decree d partly against Kazim Ali beg and partly against Musammats Jawahar Bano and Mumtaz Bano. Musammats Jawahar Bano and Mumtaz Bano appealed to the District Judge without making Kazim Ali Beg a party to the appeal. Kazim Ali did not appeal from the decree against him. No appeal or cross-objection was filed by the plaintiffs against Musammats Jawahar Bano and Mumtaz Bano.

(3.) Second Appeal No. 1293 arises out of Suit No. 12 of 1915 for profits by the same plaintiffs against the same set of defendants but for different years. In this case, also, a decree was passed against these two sets of defendants, but both of them appealed to the District Judge. After various remands, these three appeals were tried together by the District Judge and have been disposed of by one judgment, which, unfortunately, has caused some confusion. In the opinion of the District Judge, Kazim Ali was not liable for any share of the profits to the plaintiffs at all. On the other hand, he has found that Jawahar Bano and Mumtaz Bano had realised more than their share of the profits and were alone responsible to the plaintiffs. The result of his finding was this, that he allowed Kazim Ali s appeal in the second suit and exempted him altogether from all liability. He dismissed Jawahar Bano s and Mumtaz Bano s appeal, but, at the same time, he has modified the decree of the first Court in both these suits and decree d the plaintiffs claim for the amounts found due by the first Court as against Jawahar Bano and Mumtaz Bano. Only two appeals have been filed in this Court. No appeal has been filed by the defendants, Jawahar Bano and Mumtaz Bano, from the decree allowing the appeal of Kusrim Ali against them. In our opinion, when the District Judge was satisfied that it was Jawahar Bano and Mumtaz Bano alone who were liable to pay the plaintiffs share of the profits. he had jurisdiction to modify the decree of the first Court and decree the plaintiffs claim as against these two defendants only. It is true that Kazim Ali was not formally made a party in the appeal which had arisen out of the first suit. But, as the modification of the decree was to be in favour of Kazim Ali himself, who had been a party to the original suit, the defect of his not having been formally brought on the record in that appeal is not very material.