M ABDUL AZIZ Vs. AMIR ALI

JUDGEMENT

(1.) This is an appeal by defendants Nos. 5 and 9 against a decision of the Subordinate Judge of Chittagong modifying a decision of the Munsif. The plaintiff sued alleging that the land mentioned in the plaint was a non occupancy holding belonging to defendant No. 6 which he purchased at a sale in execution of a decree for arrears of rent, the purchase being dated the 7 of April 1915. The Munsif decreed the suit and allowed khas possession. There was an appeal preferred against the Munsif's decision by defendants Nos. 5, 9, 19, 20 and 21. The learned Subordinate Judge held that defendants NOS. 9, 19, 20 and 21 had protected interests but that defendant No. 5 had no protected interest. So far as defendant No. 9 is concerned the only question that arises is with regard to the form of the decree. What the learned Subordinate Judge in the lower Appellate Court held was that, so far as defendant No. 9 was concerned, no decree for that possession was to be made in respect of the plots which this defendant claimed in the written statement. Now, the plots which he claimed in his written statement are seven in number 146, 156, 1437,1422/ 1468, 11884/4481, 149 and 1487 and the only one of these dags which is mentioned in the decree, so far as defendant No. 9 is concerned, is dog No. 1487, the other dags being omitted. It seems to us that this must, having regard to the decision of the learned Subordinate Judge have been a mistake.

(2.) A cross-objection has been preferred as against defendant No. 9 but this has not been pressed before us. Accordingly, so far as defendant No. 9 is concerned the appeal must succeed and the decree will be so far as he is concerned that the plaintiff will not be entitled to khas possession of any of the plots mentioned in his written statement, the numbers of which we have already given.

(3.) The plaintiff also preferred a cross-objection against defendants Nos. 19, 20 and 21. This cross-objection clearly cannot lie as against these persons and must be dismissed without costs as defendants Nos. 19 and 20 do not appear and the minor heirs of defendant No. 21, represented by the Deputy Registrar of this Court, are the only persons before us.