LAKHI CHOWDHURI Vs. AKLOO JHA

JUDGEMENT

(1.) This appeal is directed against a decree of dismissal in a suit for declaration of title to immoveable property and for confirmation of possession. The plaintiff and the 2nd party defendants are the joint owners of an estate which is now in course of partition under the provisions of the Estates Partition Act of 1897. In the partition proceedings the first defendant put forward a claim that he was the tenant in respect of a particular parcel of land. The plaintiffs repudiated that position but their objection was overruled by the Revenue authorities. They thereupon commenced this action for declaration that the first defendant was not a tenant in respect of those lands and that he had, as a matter of fact, been set up fraudulently by the second party defendants. The Court of first instance went into the merits and made a decree in favour of the plaintiffs. Upon appeal two objections appear to have been urged on behalf of the defendants; namely, first, that the suit had not been properly constituted, because the son of one of the plaintiffs had not been joined as a party and, secondly, that the suit was barred under the provisions of Section 25 of the Bengal Estates Partition Act.

(2.) In respect of the first objection, the learned Judge held that it was well founded but that the suit ought not to be dismissed on that ground; he stated in fact that if the suit had not been open to any other objection, he would have remanded the case for re-trial. But in so far as the second objection was concerned, the learned Judge allowed it to prevail and dismissed the suit as not maintainable.

(3.) The plaintiffs have now appealed to this Court, and on their behalf the view taken by the learned Judge upon both these matters has been called in question. We are of opinion that his conclusion cannot be supported.