(RAI) GOVIND CHAND Vs. GAJADHAR

JUDGEMENT

(1.) This is by far the most curious case I have had experience of. It has arisen out of a suit brought by Rai Govind Chand, against Gajadbarand Bijai Mai for possession of a piece of land by demolition of certain constructions alleged to have been made by the defendants. The plaintiff is the sole zamindar of village Sikhar, in which the land in dispute is situate. His case was that the land in dispute had become "parti" the house of Gajadhar, which stood thereon, having fallen down many years before the suit and that the defendants started a new construction about eight days before the institution of the suit. On the date fixed for settlement of issues, an application signed by the defendant Gajadhar and by his pleader was filed in the trial Court. He declared that he had no interest in the house or the land, and that he had been improperly impleaded as the defendant. He prayed that an order of discharge from the array of the parties be passed and costs awarded to him. The defendant Bijai Mai, who is the brother of Gajadhar, contested the suit. His defence was that the house in dispute originally belonged to Gajadhar and was sold in execution of a decree against him. One Sheo Baran purchased it in auction. Sheo Baran sold it to Earn Kishore by a deed, dated 8th August 1906. Earn Kishore, in his turn, sold it to the son of Bijai Mai by a deed, dated 14 September 1927. The defendant Bijai Mai asserted in his written statement that Gajadhar had nothing whatever to do with the house. He did not admit that the site of the house had become parti . He said in para. 10 of his written statement that the house was in a dilapidated condition {mutuazalzal halat men that), and that he started construction after purchasing the same from Ram Kishore. He denied the plaintiff's right to recover possession having regard to the provisions of the wajib-ul-arz of the village.

(2.) The trial Court struck a number of issues arising from the plaint and the written statement of Bijai Mai. No order seems to have been passed on the application of Gajadhar. Probably the trial Court intended to take notice of it in its judgment. This was not however done, and the issues having all been decided in favour of the plaintiff, his suit was decreed with costs, without naming the defendant against whom the decree was to operate or mentioning that it was against both the defendants. The decree was, however, so framed as to be one in favour of the plaintiff against the defendants. The plaintiff had also claimed a relief for compensation for certain trees cut down by the defendants. His suit for that relief was dismissed.

(3.) An appeal was filed in the Court of the Subordinate Judge, Mirzapur, not by Bijai Mal but by Gajadhar. In the memorandum of appeal Gajadhar challenged the decree of the trial Court on all grounds on which Bijai Mal, the contesting defendant could have done. Bijai Mal, was impleaded as a respondent along with the plaintiff. He, did not enter appearance in spite of personal service. The appeal was argued by both the parties on the merits and was allowed. The decree of the trial Court was set aside and the plaintiff's suit was dismissed. The present is a second appeal by the plaintiff against Gajadhar and Bijai Mai. One of the grounds taken in the memorandum of appeal is that, in view of Gajadhar's application disclaiming all interest in the subject-matter of the litigation, he was not competent to appeal from the decree of the trial Court and, at all events, he should not have been allowed to assail the decree, except so far as it adversely affected him. It may be mentioned here that the only extent to which the trial Court's decree can be said to affect him adversely is as regards costs, which were awarded in general terms by the judgment and expressly against both the defendants by the decree. Bijai Mai has not entered appearance in this Court. Gajadhar, who is the contesting respondent, is represented by a learned Counsel. It is inconceivable that Gajadhar should have thought of appealing from the decree of the trial Court after this application disclaiming interest in the subject matter of the litigation. It is likewise inconceivable that Bijai Mai, who had contested the plaintiff's claim tooth and nail in the trial Court should have acquiesced in the decree passed by that Court and refrained from appealing there from. The learned advocate for the appellant suggests that Bijai Mai having lost the case in the first Court did not care to appeal. I am not convinced by this explanation.