BHONDU Vs. CHRAJ SINGH

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for possession. The facts are briefly these : On 10-10-1936, one Ghasi sold to Chaudhari Raj Singh three houses. Two of them were let out to one Narain. In 1942 Raj Singh brought a suit, Suit No. 727 of 1942, against Narain, as a tenant, and against one Bhondu, as a sub-tenant. This suit was brought for arrears of rent and for ejectment,

(2.) Bhondu claimed a paramount title and pleaded that he was a member of a joint Hindu family with Ghasi and the sale in favour of the plaintiff conveyed to him no title, The plea of Bhondu amounted to a denial of the plaintiff's title, with the result that it was decided that he should pay some further court-fee before he was entitled to proceed with the suit. The plaintiff, instead of making good the deficiency, prayed for permission to withdraw the suit as against Bhondu under Order 23, Rule 1, Civil P.C. The Court acceded to his prayer in the following term: The plaintiff is allowed to withdraw the suit No. 727 of 1942 with permission to file a fresh suit against defendant 2,i.e., Bhondu, subject to payment to him of the entire costs incurred by him upto date within 30 days from that date. It is further ordered that failure to pay costs to defendant 2 shall debar the plaintiff to institute a fresh suit against him and he would be entitled to take out execution for his costs after 30 days irrespective of the plaintiff's filing or not filing a fresh suit against him. The costs were never paid. The plaintiff instituted the present suit against Bhondu, Sheo Ram, Mt. Mathuri and Mt. Ram Dei. The relationship of these defendants will appear from the following genealogical table: The case of the plaintiff was that the property, in suit, fell to the share of Ghasi Ram and he was, therefore, entitled to convey it to him, under the sale deed of 10-10-1936.

(3.) The defence of Bhondu amounted to a denial of the plaintiff's title and a further plea that the suit could not be instituted without the payment of costs. The learned Munsif acceded to the defence and dismissed the suit on this ground, although he found, on the merits, in favour of the plaintiff.