MONMOHINI DAS PURKAYASTHA Vs. BEHARI SHAHA

JUDGEMENT

(1.) This is an appeal from the decision of our learned brother R.C. Mitter, J. The plaintiff appellant instituted a suit, Title Suit No. 2149 of 1909, in the Court of the Munsif at Sunamgunj in the District of Sylhet, for possession, on declaration of his title, and there were other incidental and consequential reliefs prayed in the suit, which was filed in Court on 16th July 1909, against nineteen persons impleaded as defendants; to meet the objection on the score of defect of parties, raised by the defendants, 52 more persons were added as defendants. Of these defendants subsequently made parties to the suit, defendants 41 to 43 were minors at the time when they were made defendants to the suit; the mother of these three defendants was proposed as their guardian and the order of the Court relating to the matter of appointment of guardian of defendants 41 to 43, passed on 11 June 1910 was this: Service of notice pressed on 16 April 1910. No objection petition filed yet. The proposed guardian be appointed guardian for the minor defendants to conduct the case.

(2.) There was no appearance by any of the defendants in the suit and the suit was decreed in favour of the plaintiff. The decree of the Court of first instance was ultimately affirmed by this Court on 23 April 1914, on a second appeal preferred by some of the defendants in the suit. In the year 1918, defendants 41 to 43 in the suit instituted a suit, Title Suit No. 47 of 1918 subsequently registered Title Suit No. 12 of 1919, for a declaration that the decree passed against them in Title Suit No. 2149 of 1909 was invalid and inoperative against them, on the ground that there was no proper appointment of a guardian to represent them in the suit. The aforesaid suit No. 47 of 1918, was decided in favour of defendants 41 to 43, the plaintiffs in that suit, on the ground that the mother proposed as guardian had not consented to her appointment, as the guardian-ad litem of her minor sons, and that it was settled law that no person could be appointed guardian-ad-litem of a minor without express consent. It was held that the decree passed in the suit being ineffectual and inoperative against defendants 41 to 43, they were not bound by it. The decree passed in Title Suit No. 2149 of 1909 was declared null and void and inoperative against these defendants by the decision and decree passed by the Additional Subordinate Judge, Sylhet, on 20 September 1919. Thereafter, on the January 1928, the plaintiff filed an application in the Court of the Munsif at Sunamgunj, praying that the Title Suit No. 2149 of 1909, be proceeded with, as against defendants 41 to 43, and the application was allowed, the suit being revived.

(3.) The result of the hearing of the suit after its revival was that the suit against defendants 41 to 43 was decreed in part on contest by, the said defendants. The decree passed by the trial Court on 16 December 1931 was affirmed by the Subordinate Judge, in the lower appellate Court, on 20 December 1932, with certain modification, as mentioned in the ordering portion of the judgment of the Subordinate Judge. On appeal by defendants 41 to 43 to this Court, the decision of the lower appellate Court was reversed, and the decree passed by the lower Court directed against defendants 41 to 43 were discharged by our learned brother R.C. Mitter, J., on the ground that the suit against the order of revival of the suit against defendants 41 to 43 was without jurisdiction. It may be noticed in this connexion that the decision of Mitter, J., is in favour of affirming the decision of the lower appellate Court on the other questions relating to the merits of the case before us and the question of limitation arising in the same.