KRISHNADHAN LAHA Vs. BROJENDRA NATH

JUDGEMENT

(1.) Plaintiffs sue for recovery of possession of the disputed land on a declaration of their title thereto. It appears that there were two brothers, Trailokya Laha and Gobinda Laha. Trailokya the elder died in 1312 B.S. leaving a son Ashu defendant 8. Gobinda died in 1314 B.S. leaving two sons Krishna, plaintiff 1 and Netai, plaintiff 2. It appears that in 1301 Gobinda acquired mourashi right to the land in suit by a document Ex. 2. On 23 Jaistha 1318, corresponding to 6 June 1911, defendant 8, purporting to act as guardian of the minors plaintiffs 1 and 2 and alleging that they had four annas share each and he had the remaining eight annas share in the land in suit, granted a permanent lease to one Tarini by the document which is marked Ex. C. Tarini a heirs, defendants 6 and 7, conveyed the lease-hold to defendants 1 to 5. Plaintiff's case is that the disputed land was acquired by Gobinda Laha alone after he had separated from his brother Tarini in 1290 B.S. that defendant 8 was never the guardian of the plaintiffs and was not entitled to grant mourashi pottah to Tarini, that the aforesaid pottah is a mare paper transaction and that the plaintiffs were not benefited by it. Hence the plaintiffs sue for a declaration that the pottah in question was null and void and for recovery of possession of the disputed land from the defendants. The suit is contested by defendants 4 and 5. Their defence is that Gobinda and Trailokya never separated in 1290 B.S. as alleged by the plaintiffs, that separation between Ashu defendant 8 and the plaintiffs took place only in 1322 B.S., that Ashu was de facto guardian of the plaintiffs during their minority and he granted the pottah in suit for the benefit of the minors estate, and that the pottah conferred good title on Tarini. The learned Munsif held that Trailokya and Gobinda separated in 1290 B.S. that the property in the suit was acquired by Gobinda alone in 1301 B.S.; that the pottah in suit was not a bona fide nor valid transaction and that it was not for necessity or benefit to the estate of the minors. He accordingly decreed the suit.

(2.) On appeal by defendants 1 and 5 the learned Subordinate Judge held that Tarini never separated from Gobinda and that the disputed land was the joint property of the two brothers. He therefore found that Ashu had eight annas share and the plaintiffs had the remaining eight annas share in the property. He further found that Netai plaintiff 2, on attaining majority in 1323, accepted rents from the lessee and thereby ratified the lease to the extent of his share. He also held that as the suit had not been brought within three years of Netai's attaining majority the suit with regard to him was barred by limitation and so the lease to the extent of Netai's four annas share must stand good. With regard to the remaining four annas share of plaintiff 1, Krishna, he held that the pottah was not for pressing necessity nor for the benefit of the minor and therefore it was liable to be set aside. He accordingly decreed the suit in part for four annas share of plaintiff 1. The present second appeal is preferred by the plaintiffs.

(3.) There is a preliminary objection that the appeal is incompetent because defendants 1, 2 and 3 have not been made parties respondents. These defendants have never appeared to contest and the suit was decreed as against them ex parte with costs. The contesting defendants 4 and 5 in para. 6 of the written statement pleaded that defendants 1, 2, 3, 6 and 8 were not necessary parties and that because of them the suit was bad for misjoinder of parties. In their appeal before the lower appellate Court also these contesting defendants left out the other defendants whom they alleged to be unnecessary parties. It does not therefore lie in their mouth now to take the point in this Court that the appeal is incompetent because these very same persons are not impleaded as parties respondents. So far as the plaintiffs- appellants are concerned, they are content to leave these defendants out and let the decree of the lower appellate Court remain untouched with regard to them. Therefore it cannot be said that the present appeal is incompetent because these defendants have been left out.