LAKHI NATH BERA Vs. NABADWIP CHANDRA NANDI

JUDGEMENT

(1.) This is an appeal on behalf of the defendants. The suit was brought by the plaintiffs against the defendants who were sued under Order 1, Rule 8, Civil P.C., as representing all the residents of Mouza Balpai Bamanbarh. The suit was for a declaration that the defendants had no right to out dawn or to appropriate trees on their holdings. A further declaration was asked for to the effect that the plaintiffs as landlords had the right to cut down and appropriate trees on the holdings of the tenants of the mouza. The record of rights is in favour of the defendants and the plaintiffs therefore prayed that it should be declared that the record-of-rights was incorrect.

(2.) The trial Court made a decree to this effect that the tenants of Balpai Bamanbarh had no right to cut and appropriate trees on their jote without the consent of the plaintiffs landlords and that the record of rights was incorrect. The tenants appealed against that decision and the Additional District Judge has varied the decree of the Munsif and he declared: that the defendants have got no right to the trees and they cannot out an a appropriate the sun except on marriage occasions on payment of Re. 1-4-0 for each tree and except for cremation without payment of price but with the landlords (plaintiffs ) permission subsequently obtained and except cutting and appropriating branches of trees for fuel purpose. That the plaintiffs have got right to the trees subject to those aforesaid restrictions and that settlement record is declared erroneous. 2. The defendants appealed against that decree to this Court.

(3.) A preliminary objection has been taken that the appeal is not properly constituted as pro forma Defendant No. 21, who was one of the landlords has not been properly impleaded in the appeal and the appeal was dismissed as against him. We do not think that the Defendant was one of the necessary parties to the appeal. He was one of the landlords who did not join with the plaintiffs because he had interest in several jotes and his interest was adverse to the claim of the co-sharer landlords. Thereupon he was made a pro forma defendant. As he made no claim and no decree was passed in his favour he was not a necessary party in the appeal which was brought by the tenants-defendants against the plaintiffs-landlords.