NIRMAL SINGH Vs. ZAMIR UDDIN KHAN

JUDGEMENT

(1.) THIS second appeal arises out of a suit for arrears of rent in the Revenue Court. The plaintiffs in the suit alleged that they had acquired a. proprietary title from the present appellant, Nirmal Singh, and they sued the defendants on the allegation that the said defendants were their tenants. These defendants maintained that they were not tenants, but proprietors. An issue was consequently remitted to the Civil Court, and that Court decided that the defendants were proprietors and not tenants. In the result, the suit was dismissed. The plaintiffs acquiesced in the decree, but Nirmal Singh, who had been impleaded as a party pro forma preferred an appeal against the decree. The learned Judge of the appellate Court held that Nirmal Singh was not entitled to appeal against the decree, because he no longer had any proprietary title in the land.

(2.) THE respondents are not represented in this Court, and I have had not tine advantage of hearing any argument on their behalf; but it seems to me that it is impossible to hold that Nirmal Singh had no right to appeal. I have been referred to the case reported in Jamna Das V/s. Udey Ram (1893) 21 All. 117. In that case a suit had been instituted for the recovery of a debt by persons who claimed to be assignees of the creditor. THE assignor was a party, and so were certain persons who claimed to be prior assignees. THEre was a dispute between the prior assignees and the latter assignees because if the prior assignment was valid, the latter assignment could not be. THE suit was decreed. THE prior assignees wished to appeal against the decree, and it was ultimately held in second appeal by the High Court that they were entitled to do so. THE case was similar to the one that is before me. On principle too it seems that Nirmal Singh should be allowed to institute an appeal. lie is obviously affected by the decree of the Court below, because under Section 55, T.P. Act, he must be considered to have given a warrant of his title; and if it is found that other persons, that is the defendants, were proprietors he will be liable for not having discharged that warranty. He is certainly an aggrieved party; and as he is a party to the proceedings, any decision might have the effect of res judicata against him. I consider that the appellant was entitled to institute an appeal in the Court below. I therefore set aside the decree of the lower appellate Court and remand the case under Order 41, Rule 23, and Order 42, Rule 1, Civil P.C., for decision upon its merits. THE costs in. this Court will abide the result. THE court-fee paid in this Court shall be refunded.