SITA RAM SINGH Vs. SURAJ SINHA

JUDGEMENT

(1.) This second appeal arises out of a suit for ejectment of the defendants- respondents from plot No. 266 recorded in Shikmi khata No. 12 appertaining to kaimi khata No. 214 of mauza Sitab Diara in tola Rameshar Singh. The plaintiff, appellant claimed to be the Kashtkar of the plot along with his brother who was a co-plaintiff and after having served notice under Section 49, Ben. Ten. Act on the defendants, he with his brother filed the present suit for recovery of khas possession together with mesne profits on the defendants refusal to give up possession. Defendant 1 alone contested the suit and filed a written statement. In the trial Court various issues were framed on the pleadings including that of the maintainability of the suit. The ground taken was that the minor son of one of the plaintiffs who died during the pendency of the suit should have been brought on the record within time.

(2.) The learned Munsif disallowed the objection on the ground that it was not necessary to have the minor son on the record when the karta of the family was already there, and be decreed the suit. On appeal by the defendants, the suit was remanded to the trial Court for a finding as to whether the plaintiff Raj Kishor Singh who was dead had left behind a son. The learned Munsif tried the issue and remitted his finding to the lower appellate Court that the existence of any son of the deceased plaintiff was not proved. The learned District Judge agreed with the finding of the Munsif but he has held that the remaining plaintiff has got sons and, as the right to sue did not survive to him alone, it was necessary to bring on record the sons of the surviving plaintiff in substitution of the deceased plaintiff, and this not having been done he has held that the suit had abated, applying the principle laid down in Basist Narayan Singh V/s. Modnath Das, 1928 Pat 250.

(3.) No other point was pressed before the learned District Judge and he dismissed the suit. In second appeal it has been argued before me that the learned District Judge was wrong in holding that the suit had abated when the present appellant represented the estate of the deceased plaintiff, and that the principle laid down in the case of Basist Narayan Singh V/s. Modnath Das, 1928 Pat 250 was not applicable to the present case. Now, it appears that on 12 August 1930, a petition was filed before the Munsif on behalf of the present appellant that plaintiff 1, Raj Kishor Singh was dead and that the suit be proceeded with in the name of plaintiff 2 (the appellant) alone as he was the karta of the joint family and had in him the full power to sue the defendants.