LAWS(PVC)-1922-11-57

MUSAMMAT RAMMAN BIBI Vs. MATHRA PRASAD

Decided On November 27, 1922
MUSAMMAT RAMMAN BIBI Appellant
V/S
MATHRA PRASAD Respondents

JUDGEMENT

(1.) The plaintiff, Musammat Ramman Bibi, is the zemindar of the village Amrauli. A certain Hari Ram residea in Amrauli as an agricultural tenant. He occupied a dwelling house in the abadi and he was the holder of a certain grove with, the rights of a tenant grove-holder. It is alleged that he owed money on a deed to a certain Mathra Prasad. Hari Ram died. At the time of his death it was alleged that he had not satisfied the amount due to Mathra Prasad. Mathra Prasad instituted a suit against a child called Bilaso, who, he alleged, was the daughter of Hari Ram in respect of the amount which Hari Ram, was alleged to have owed him. He obtained a decree against the assets of Hari Ram in the hands of Bilaso. I am unable to ascertain whether this decree was obtained ex parte or after contest. In execution of that decree he brought to sale the interests of Hari Ram in the house and grove. They were purchased by Lachmi Narain brother of Mathra Prasad. Lachmi Narain is now in possession of those interests. The plaintiff instituted a suit against Mathra Prasad and Lachmi Narain for possession of the house and grove, her case being that Bilaso was not the daughter of Hari Ram; that Hari Ram had died without heirs or successors, and that she as zemindar had succeded to the house and grove upon his death. Mathra Prasad and Lachmi Narain contested the suit. Bilaso was not a party. The Courts below have arrived at a concurrent finding of fact to the effect that Bilaso was not the daughter of Hari Ram and that Hari Ram died without heirs or successors. The Trial Court decreed the suit in full. The learned District Judge considered that the plaintiff as zemindar could only succeed to the house and grove on condition of paying off the debts of Hari Ram. He accordinly made her success conditional on the payment of those debts with the result that he awarded the materials of the house to the purchaser and awarded him the grove in consideration of the fact that the value of the materials ana the grove together were less than the debts due from the deceased.

(2.) The plaintiff appeals here.

(3.) The first point taken is this. On the findings of both Courts Musammat Bilaso was not the daughter of Hari Ram, so there is no force in the decree in favour of Mathra Prasad against Bilaso. It was, however, open to the defendants to prove aliunde their debt from Hari Ram. They do not appear to have done so. Had the decision of this appeal turned on that point alone, it might have been necessary to remit further issues for proof upon this point. The non-joinder of Bilaso does not defeat the suit (Order I, Rule 9) and, as I read Order XLI, Rule 20, it is not possible to join her now.