MITHAI Vs. HASAN ALI

JUDGEMENT

(1.) This is an appeal against an order of remand passed by the learned Subordinate Judge under the following circumstances: The respondents who are faqirs sued seven defendants for several reliefs. One of the reliefs was that the defendants should be called upon to remove the materials of their buildings, the second was that they should be asked to pay damages and the third relief was as regards perpetual injunction. The defendants raised various pleas. They denied that the plaintiffs had a right to maintain the suit. They also alleged that the suit was bad for mis-joinder of parties and causes of action and they alleged that the buildings had stood on the land for many years and that the new constructions were on old foundations.

(2.) The Munsif framed eight issues and he decided all of them. He found that the plaintiffs had no right to maintain the suit. He found that the suit was bad for multifariousness and he found that most of the buildings on the site were more than 12 years old. He also found that the plaintiffs were not entitled to any damages. In the result the learned Munsif dismissed the suit. It is to be noted that in the order dismissing the suit he does not give multifariousness as one of the reasons for the order that he was passing.

(3.) On appeal by the plaintiffs the learned Subordinate Judge started by sayingthat the Munsif decided the case on two preliminary points. Later on he did say that the Munsif decided the case on the merits also. But the learned Judge disregarded the decision on the merits and found that the plaintiffs title had not been properly investigated and the suit was bad for mis-joinder of parties and causes of action. On behalf of the respondents the learned Judge was asked to ignore the defect of mis-joinder of causes of action and parties because the suit had been tried on the merits, but this suggestion was not acceptable to the learned Subordinate Judge.