KUNHANNA RAI (DIED) Vs. MANAKKE

JUDGEMENT

(1.) The plaintiff's branch of the Bellipadi family brought a suit for a declaration that certain properties belonged to the branch and for an injunction restraining the 1 defendant the ejman of the family, from interfereing with their possession. Both the Lower Courts dismissed the suit and on Second Appeal Mr. Justice Krishnan gave a decree to the plaintiffs as regards the house in which the plaintiff's branch is living and the home farm lands which were in the possession of the branch. Against the decree in the second appeal, this Letters Patent Appeal is preferred. A preliminary objection was taken to the maintainability of this appeal on the ground that the 2nd plaintiff was not made a party to it. This came on before us about three years ago and we allowed the appellants to file an application for bringing on record the 2nd plaintiff as a respondent. The application was filed on 15 December, 1925 and we ordered notice on 16 December, 1925. After several adjournments it was ordered to be posted along with the L. P. A. by Jackson, J., on 2nd August, 1926. Mr. Sitarama Rao who appears for the respondents strongly objects to the 2nd plaintiff being made a party to the L.P.A. and he relies upon a recent decision of the Privy Council in Chockalingam Chetti V/s. Seethai Achy (1927) I.L.R. 6 Rang. 29 : 55 I.A. 7 : 54 M.L.J. 88. In that case, their Lordships hold that the Court had no power to make a person a party who was not made a party to the appeal by the appellant, although he was a party to the proceedings in the Court below. In that case, the parties ought to be brought on the record in appeal was left only by the appellant. It is only when he discovered that he would suffer by reason of that person not being made a party, he applied to the Court for his being made a party. The facts here are different. In this case, owing to an oversight of either the clerk or the person who instructed the vakil who filed the L.P. Appeal, the name of the 2nd plaintiff who was the 14 respondent in the Second Appeal was left out. And there is a reason for his name being left out, because it resembled very closely the name of the 3 defendant. We think in these circumstances, that it was a bona fide mistake and this Court has power to correct a mistake and to have the appeal memorandum amended by inserting the proper name and bringing on record the proper party. We do not think that the decision of their Lordships of the Privy Council in Chockalingam Chetti V/s. Seethai Achy (1927) I.L.R. 6 Rang. 29 : 55 I.A. 7 : 54 M.L.J. 88 in any way prevents us from giving relief when we find that owing to a similarity of names a mistake was made in not making a person a party to the appeal. We, therefore, allow the petition as prayed for.

(2.) Coming to the merits of the case, to learned Judge (Mr. Justice Krishnan) has evidently owing to an oversight, thought that the Lower Appellate Court found that the home farm land did not become the property of the family by adverse possession. He observes at page 7 of his judgment as follows: As regards the surrounding home farm lands which are cultivated by the members of the Surya Branch, his finding as regards adverse possession will not apply. He says so expressly in para. 15 of his judgment.

(3.) This observation is not strictly accurate, as the District Judge does not say in para. 15 of his judgment that his finding as to adverse possession does not affect the home farm lands. What he says in para. 15 is So my finding with regard to possession only applies to the lands and garden excluding the Surya house which has been always in the occupation of the members of the Surya branch.