GOKULDAS Vs. CHAGAN LAL

JUDGEMENT

(1.) This is an appeal against a decision of my learned brother Mr. Page, J., by which he dismissed the plaintiffs suit in the circumstances hereinafter mentioned. The suit was instituted on 23 March 1923, and the plaint as it stood, was filed against five defendants, namely, Chagan Lal, Sohan Lal, Kanya Lal, Rukmani and Mathuia Bai. Shortly stated, the plaintiffs allegations were these : They stated that there was a dwelling house in Bhawalpore in the Punjab in which they were interested as part owners and that the said house had been sold by the defendant Chagan Lal acting for himself and as the constituted attorney of the other defendants by several conveyances in the months of March a April, 1920. They further alleged that the sales were effected without the consent and knowledge of the plaintiffs or any of them and that Chagan Lal had realized a sum of Rs. 19,476. They stated also that they were entitled to one-third of the sum of Rs. 19,476, that is to say, to the sum of Rs. 6,492, In the prayer portion of the plaint, the reliefs prayed for were as follows : For leave under Clause 12, Letters Patent to institute the suit in this Court, for a decree for the said sum of Rs. 6,492; if necessary, for a declaration of the shares of the parties in the sale proceeds of the said house and premises and for a direction upon the defendants to pay to the plaintiffs their share of the said sale proceeds, and if necessary, for an account by and under the direction of this Court of the dealings of the defendants of the moneys realized by them from the said sales and for a direction upon them to pay to the plaintiffs whatever might be found to be due to them on the taking of such accounts. In their written statement the defendants Chagan Lal and Kanya Lal stated that the suit as framed was one for lands outside the jurisdiction of this Court and was not maintainable. They further denied that the plaintiffs had any title to the said house.

(2.) It appeared that some time in May 1926, an order was made by my learned brother Buckland, J., when he was sitting on the original side of this Court, to the effect that the plaintiffs application for issue of a commission of which notice had been given should stand to trial, that at the hearing of the suit the plea as to jurisdiction taken by the defendants should be heard and decided first, that such plea would be decided on the basis of the plaint having regard to the contention of the defendant Chagan Lal and Kanya Lal chat the plaintiffs had no title to the house and premises in Bhawalpore in the Punjab and that, in the event of the plea of jurisdiction being decided in favour of the plaintiffs, the application for issue of a commission was to be brought on before the Judge hearing the case. This order, as stated above, was made on 18 May 1926. The suit came on for hearing before Page, J., on 2nd March 1927 when Sircar who appeared on behalf of the plaintiffs intimated to the Court that his clients were not willing to proceed against defendants 3, 4 and 5. Defendants 3, 4 and 5 were thereupon dismissed from the suit the necessary orders as to their costs being made at the same time. The ease thereafter proceeded as against the two remaining defendants who were residents in Calcutta, namely, Chagan Lal and Sohan Lal.

(3.) When the appeal came on for hearing before us this morning, Mr. Sircar on behalf of the appellants stated that, so far as defendant 2, Sohan Lal, was con-corned, the matter had been settled with him and that he was to be dismissed from the suit and the appeal and that, so far as his costs in the first Court were concerned, the order made by that Court was not to be disturbed but, so far as his costs of appeal in this Court were concerned, one counsel's fee was to be allowed. Upon this statement being made by Mr. Sircar and upon an order being made as prayed for, counsel for Sohan Lal retired. Thereupon, there was only defendant- respondent 1, left and that is Chagan Lal for whom Mr. N.N. Bose, with Mr. S.K. Dutt (Advocate) appears.