SADHU KATHALIA Vs. DHIRENDRA NATH ROY

JUDGEMENT

(1.) This is a some what unusual case and a very good illustration of the difficulties which are created for the lower Courts and which they themselves assist to create. The plaintiffs are eight persons called Boy who claim to be interested in a certain revenue paying estate under the Collectorate of Jessore and to have in addition a kaiemi mokurari mourashi jote thereunder; in other words they claim to be eutitled to the superior interest in the suit lands and the share they claimed is 13 annas four pies share. Among the many defendants there is a group of defendants described as co-sharer pro forma defendants who are entitled to the remaining share. The cause of action might be very simply stated. It is that sis parsons, one Erfanaddi and five others, whom I may call the Bairagis, having agreed on certain terms to become tenants of certain lands and to execute a kabuliyat refused to do so and by executing and causing to ba registered a false kabuliyat which the plaintiffs never accepted and by seizing by force the lands of schedule (gha) became trespassers whom the plaintiffs are entitled to eject.

(2.) The plaintiff's case is that these six persons have put themselves into exclusive possession of the properties of Schedule (gha) and that they have no right or claim to be in occupation as their tenants. On any ordinary principles such a suit would be brought against those six persons and those only, it being elementary that the proper defendants in an action of ejectment are the persons in possession. That however did not content these plaintiffs. They impleaded apart from their cosharers 107 persons in addition to the six persons who have been described in the cause-title as principal defendants. These 107 parsons are described in the cause-title as pro forma defendants. When the plaint is examined it contains no claim whatever for relief against any of the 107 pro forma defendants. It contains two statements with reference to them that have any importance. One is that these 107 persons are or that some of them are tenants under the plaintiffs of other lands. There is no suggestion that they are not perfectly law abiding and well behaved tenants. The second is a statement that there was an arrangement by which these persons, represented by one of their number made, a bargain with the plaintiffs, and apparently with the principal defendants also, that the plaintiffs would give them tenancy of certain other lands-the lands in Schedule (ga). The lands which the principal defendants are said to have trespassed upon and the lands which these pro forma defendants are said to have some promise of tenancy in are different lands with the exception of two plots - plots 72 and 485. Of these two plots I shall say something hereafter. These two statements referring to the pro forma defendants are the only statements affecting them so far as I can discover in the plaint and there is no explicit prayer for any relief whatever at the end of the plaint so far as these 107 persons are concerned. In these circumstances before issuing summonses upon 107 persons one would have thought that the trial Court would have examined this plaint under Order 7, Civil P.C. and would have rejected or returned it for amendment so as to disclose some cause of action. It may, however, be said that the plaint which is somewhat complicated was difficult to understand and that such a summary proceeding was not thought desirable.

(3.) It appears that summonses were issued, but no written statements were filed on behalf of these pro forma defendants. Some time afterwards the plaintiffs compromised with the principal defendants and the case came before the Court for a decree. As against the principal defendants the suit WAS decreed in terms of the compromise. As against the absent pro forma defendants something, which was supposed to be a decree, was passed ox parte. It was a statement that as against these pro forma defendants the suit was decreed ex parte, but it did not state what was decreed. It did not give any declaration even by reference as no amount of reference to the plaint will enable anybody to see that anything in particular was asked for as against these pro forma defendants. What as against them was decreed and was supposed to be meant it is not easy to discover, A am glad to say that I do not find that this decree was passed against the pro forma defendants for any costs. Thereafter several of these defendants applied to the Court for restoration of the case so far as they were concerned and the decree as against them was set aside and they were allowed to file written statements. A written statement was put in on their behalf in which they objected, first, that the plaint disclosed no cause of action against thorn and secondly, that certain of them had claims to particular plots of the lands in suit as being persons who were in possession as tenants of those plots. On this basis they objected to the plaintiff's suit as against the principal defendants being decreed in terms of the solenama.