NEYAJADDIN Vs. AKAMAT ALI

JUDGEMENT

(1.) IN this case the plaintiffs brought a suit for recovery of possession of certain plots of lands against seven defendants on the allegation that the defendants Nos. 6, 4 and 7 had dispossessed the plaintiffs from them by wrongly recording themselves in the Record-of- Rights. The first Court declared the title of the plaintiffs to two plots (Nos. 959 and 960 of the batwara map) but dismissed their claim for recovery of khas possession holding that, in the circumstances of the case, the plaintiffs might have relief in a suit for ascertainment and recovery of rent of the lands. On appeal that decree has been set aside and the lower Appellate Court has passed a decree in favour of the plaintiffs for khas possession of those plots. It appears that during the pendency of the appeal before the Appellate Court defendant No. 1 Ahamuddin died and his heirs were brought on the record five of whom were minors. It further appears that these minor children of the defendant No. 1 were not properly represented in the suit, no stops having been taken under Order 32, Civil P. C.. The learned Subordinate Judge passed a decree as against the major defendants in these words: " The appeal is accordingly decreed with costs. The minor children, of late Ahamud Ali (Ahmaduddin?) will not be bound by this decree as they have not been properly represented in this appeal." Some of the heirs of Ahamaduddin and the other defendants have appealed to this Court and the ground taken on their behalf is that the Court of appeal below ought to have, in the circumstances of this case, dismissed the appeal inasmuch as it could not proceed under Order 32, Rule 4, Civil P. C., in the absence of the [minor heirs of defendant No. 1 who were not properly represented in the appeal. We think that this contention should prevail. The suit was for recovery of possession against a number of joint tort-feasors. The decree against the defendants is a joint decree inseparable and indivisible. It is not the plaintiffs allegation that the defendants individually dispossessed them from different portions of the land. The question that has to be determined in a case like this is whether the appeal can proceed in the absence of the representatives of the deceased party and whether a decree can be made in favour of a party without the representatives of the deceased being placed on the record. This point was discussed at great length in the case of Kali Dayal Bhattacharjee V/s. Nagendra Nath Pakrashi (1919) 24 C.W.N. 44. The same view has been followed in a recent case to which one of us was a party, namely, the case of Nagendra Lal Chowdhury V/s. Nizamat Ali. There the suit was brought for possession against two defendants, one of whom was a minor and not properly represented. It was held that the suit would not be decreed as against the other defendant. It is argued on behalf of the respondents that this defect is covered by Secs.99 and 100 (c) and ought to be condoned as it does not vitiate the decision of the lower Appellate Court, nor has it produced error or defect in the decision of the case on the merits. We do not think that the defect in this case is such as can be overlooked on any ground, legal or equitable. The effect of the decree that is passed by the lower Appellate Court in this case is that it can be executed as against some of the defendants whereas it will not be executed as against the others. The plaintiff, therefore, is not entitled in this case to get khas possession of the plots in suit. The decree of the Court below has become infructuous, and it is one of the principles of law that a Court should not pass a decree which cannot be given effect to. Reliance has been placed by the respondents on the case of Walian V/s. Banke Behary Pershad Singh (1903) 30 Cal. 1021. The facts of that case are very different from those in the present ease. There an application was made for the appointment of the mother as guardian of the minor. The mother appeared on behalf of the minor and her appearance was accepted as representing the minor. The Judicial Committee of the Privy Council, in those circumstances, held that the mere omission to record the order appointing the mother as guardian was not fatal to the suit. We are of opinion that in the present case the omission to have the minors represented by a guardian is fatal to the hearing of the appeal and the decree of the lower Appellate Court cannot be sustained.

(2.) THE result is that the decree passed by the lower Appellate Court is set aside and. that of the Court of first instance restored. THE parties will bear their costs here as also in the Court of appeal below.