RAMESHWAR SINGH BAHADUR Vs. RAM CHARAN SHHU

JUDGEMENT

(1.) This is an appeal by the plaintiff against the final decree in a proceeding relating to the ascertainment of mesne profits. It appears that the plaintiff instituted the suit for possession of certain immovable property and for mesne profits.

(2.) There were fourteen defendants in the suit. A decree was passed in favour of the plaintiff on 20 January 1919 awarding him possession and declaring him entitled to mesne profits as against all the defendants which were ordered to be ascertained in a subsequent proceeding. This decree of the trial Court was affirmed on appeal by the High Court on 9 February 1922. In execution of this decree the plaintiff obtained delivery of possession on 7 August 1922, and on 30 March 1926 he made an application before the Subordinate Judge for ascertainment of mesne profits as against the fourteen defendants. A commissioner was appointed and after consideration of the commissioner's report, the learned Subordinate Judo made a final decree awarding a certain amount of mesne profits to the plaintiff on 15 September 1928. The plaintiff has filed the present appeal against this final decree claiming that the amount of mesne profits allowed by the learned Subordinate Judge is not sufficient and prays that his claim may be decreed in full.

(3.) It appears that notices of the appeal on two of the respondents, namely, respondent 1, Babu Raghunath Prasad Singh and respondent 18, Ram Bishun Singh were returned unserved with a report that they were dead. It appeared on an application filed by the plaintiff-appellant for substitution of the heirs of these two defendants that they had died before the passing of the final decree by the learned Subordinate Judge, and this Court thereupon rejected the application for substitution. The result therefore is that two of the defendants against whom the original decree was passed were dead at the time of the making of the final decree for mesne profits and their heirs were not brought on the record either in the Court below or in this Court. Upon these facts a preliminary objection has been taken on behalf of the remaining respondents to the effect that the appeal could not proceed as against them. The contention is that the decree being for mesne profits and a joint and several decree against all the defendants having been passed, it is not open to the plaintiff to proceed in appeal against some of the defendants after leaving out the others so as to enhance the amount of mesne profits decreed by the Court below.