LAWS(PVC)-1932-7-54

DWARIKANATH PAR Vs. KRISHNA BARAI

Decided On July 26, 1932
DWARIKANATH PAR Appellant
V/S
KRISHNA BARAI Respondents

JUDGEMENT

(1.) Defendant 1 against whom a decree for confirmation of possession after declaration of plaintiff's title to an 8 annas share of a certain jama has been made by the Courts below, has preferred the appeal. The facts of the case are not at all complicated. They are, in so far as it is necessary to be stated here, the following: The jama belonged originally to two persons of the names of Nritya Bewa and Feli Bewa. They held it in equal shares. Feli Bewa's sons are the two plaintiffs in the suit, one of whom is Krishna Barai and the other is a minor of the name of Debi Charan Barai. Nritya Bewa had a son who died leaving a widow named Damayanti Bewa who is defendant 2 in the suit. Nritya Bewa's interest devolved on defendant 2 and Feli Bewa's on the plaintiffs. Feli Bewa and defendant 2 jointly executed a usufructuary mortgage in respect of the entire jama in favour of defendant 1. It is also said that subsequent to the execution of this usufructuary mortgage defendant 2 sold his S annas share of the jama to defendant 1. Thereafter, there was default in the payment of the rent due on account of this jama to the landlord. For such default there was a suit for rent instituted by the landlord against the plaintiffs and defendant 2.

(2.) There was a decree obtained in that suit and in execution of that decree the landlord purchased the entire jama and thereafter defendant 1 obtained a settlement of the jama from the landlord. Defendant 1 had also got his name recorded in the record of rights as the holder of this entire jama. It is on the basis of these facts that the two plaintiffs instituted the present suit for declaration of their title to the 8 annas share in the jama, for a declaration that the entry in the Record of Rights to the effect that defendant 1 was the tenant in respect of this jama to the exclusion of;the plaintiffs was wrong for a decree for confirmation of possession in the 8 annas share and also for other reliefs. It may be stated here that the plaintiffs case also was that after the sale in execution of the rent decree had taken place and the landlord had made his purchase at such execution, the said sale had on the application of the plaintiffs, been set aside. The contention of defendant 1 was that he was not a party to nor aware of the proceedings relating to the setting aside of the sale, that he was not bound by any decision that had been made in those proceedings in plaintiffs favour and that he had taken settlement of the land in jamai right from the landlords and was lawfully in possession of the jama. The Courts below have decreed the suit, and, as already stated, defendant 1 has preferred this second appeal.

(3.) A preliminary objection was taken as regards the competency of this appeal. This objection rests on the fact that there was an order made by this Court for proper representation of plaintiff 2 who was a minor, but that order not having been complied with, the appeal, in so far as it was against that plaintiff, was dismissed, leaving it open to the appellant to proceed with the appeal as against the other plaintiff, namely, plaintiff 1, at the appellant's risk. A good deal of argument has been addressed to me, baaed upon what has subsequently transpired to be a misconception as regards the exact nature of the case and of the decree that has been made therein. The argument first of all proceeded on the footing that there have been decrees made by the Courts below in favour of plaintiff 2, and for the matter of that in favour of both the plaintiffs, declaring the entry in the Record of Rights as incorrect. On an examination of the decrees passed by the Courts below however it appears that neither of those decrees contains any such declaration.