BABU JHINAK SINGH Vs. BABU AMBIKA PRASAD

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by three persons, namely, Ambika Prasad, Ram Charatar Singh and Hobedar Singh on the 21 of June 1920 in the Court of the Munsif of Bansgaon for the recovery of possession of property conveyed by one Damri to the defendants-appellants on the 20 of May 1919 by a registered sale-deed on the ground of preemption. The claim was denied by the vendees and the learned Munsif dismissed the claim. Of the three plaintiffs, Ambika Prasad alone preferred the appeal and said that he was preferring it both on his own behalf and on behalf of his co-plaintiffs, Ram Charatar Singh and Hobedar Singh. Before the appeal came to be heard Hobedar Singh died. The fact of the death of Hobedar Singh was not brought to the notice of the learned District Judge nor an application made to bring the legal representatives of Hobedar Singh on the record prior to the hearing of the appeal. The appeal was heard as if Hobedar Singh was alive and a decree was passed on the 9 of April 1921 in favour of Ambika Prasad, Ram Charatar Singh and Hobedar Singh by the learned District Judge on the payment of three-fourths of the sale consideration within a specified period for the recovery of three-fourths of the property in dispute. The vendees have preferred the present appeal before us and contend inter alia that the decree of the learned District Judge is a void decree under the law inasmuch as it was passed after the death of Hobedar Singh. THIS contention, we think, must prevail. It is supported by two authorities, namely, Imam-ud-din V/s. Sadarat Rat 5 Ind. Cas. 897 : 32 A. 301 : 7 A.L.J. 228 and Balaram Pal V/s. Kanysha Majhi 53 Ind. Cas. 548. We, therefore, allow the appeal, set aside the decree of the learned District Judge and dismiss the claim of the plaintiff-respondent, Ambika Prasad, with costs including fees in this Court on the higher scale, if any.