MAHABIR RAM Vs. RAM KRISHEN RAM

JUDGEMENT

(1.) This is a second appeal by the plaintiff whose suit has been dismissed on a preliminary issue by the dower appellate Court. The plaintiff brought a suit against a number of defendants alleging in para. 1 of the plaint: The defendants who are the members of a joint Hindu family governed by Mitakshara law...carried on shops of provisions, etc., at different places and defendant 1 is the leading member (karta) of the defendants family. The defendants had a shop styled Dwarka Ram, Krishan Ram at Chit Baragaon, district Ballia; one shop at Rallia and one shop at Mukta Ganjha.

(2.) The plaintiff proceeded to set out that certain debts arose from money dealings between the shop of the plaintiff and the defendants on account of the price of provisions supplied by the plaintiff to the defendants and the plaintiff claimed a decree against all the defendants as a joint Hindu family for these debts. Now the pedigree with the plaint showed that three defendants were the sons of Dwarka Ram, defendant 1, alleged to be the karta, and the other defendants were collaterals. The written statement on behalf of the collaterals was that they were not members of the joint family and that the shop at Baragaon was the separate property of Dwarka Ram. The trial Court decreed for the plaintiff finding against the pleadings of the defendants on the issues which were framed as to whether the defendants were members of the joint Hindu family and as to whether there was any joint family business of which Dwarka Ram was the Manager. The collateral defendants brought an appeal raising the same points again that the family was separate and that the shop at Chit Baragaon was opened by Dwarka Ram for his own benefit in his personal capacity and not as a member of the joint Hindu family embracing the defendants and raising other pleas. Instead of disposing of the appeal on the issues raised the lower appellate Court by singular error set up an entirely new issue. On p. 19 the lower appellate Court stated: This appeal must be allowed. After hearing the arguments of the learned Vakils for the parties I think it becomes abundantly clear that the plaintiff has failed to prove that the defendants were partners of the firm.

(3.) It further finds that the family of all the defendants is joint and at line 28 it states: There is not a particle of evidence to show that when the firm was established, the defendants made any agreement or contract about partnership.