MT GUDA KUERI Vs. ADNATH PANDE

JUDGEMENT

(1.) Reference may be made to my order dated 14 September 1937 by which I remitted one issue to the lower Appellate Court, because a definite finding was necessary and originally the lower Appellate Court had not recorded such a definite finding. There was yet another matter on which the lower Appellate Court in the first instance had not said anything and I made it clear that it would be necessary for the Court to decide that matter as well. After remand, definite findings have been reached by the lower Appellate Court, and on those findings the rival contentions of the parties are that the appeal ought to be decided in their favour.

(2.) Although the facts are stated in the judgments of the Courts below and in my previous order also, yet it might be necessary to recapitulate them shortly and state the findings of fact which are now binding. A pedigree is given in the judgment of the lower Appellate Court after remand and that pedigree is admitted. The property in dispute belonged to Ram Charittar who appears on the left hand side of the pedigree. The plaintiffs, according to the pedigree, are the uncles of Ram Charittar and their case was that Ram Charittar died in a state of jointness with them, that they were therefore entitled to the property even in the presence of Mt. Kaulpati, the widow of Ram Charittar, but defendant 1 alleging herself to be the daughter of Ram Charittar and defendant 2 alleging himself to be the daughter's son of Ram Charittar interfered with the possession of the plaintiffs and that interference went to this extent, that they obtained an order in their favour from the mutation department and therefore the plaintiffs sought either a declaration that they were in possession or a decree for possession. The plaintiffs impleaded Mt. Kaulpati as defendant 3 and alleged that she was not entitled to possession, because Ram Charittar was joint with the plaintiffs, but when the plaintiffs sought a decree for possession they did not in any way in the prayer for relief exempt Mt. Kaulpati from the operation of the decree sought. There was of course a prayer in the alternative that in the event Ram Charittar be held to have died in a state of separation from the plaintiffs, the plaintiffs should be given a declaration that defendants 1 and 2 are not the daughter and daughter's son of Ram Charittar.

(3.) Defendants 1 and 2 pleaded that they were the daughter and daughter's son of Ram Charittar, that the plaintiffs were not joint with Ram Charittar, that they were in possession of the property left by Ram Charittar and that the real Mt. Kaulpati was traceless and a pretender had been set up by the plaintiffs. The trial Court came to a definite finding that defendants 1 and 2 were not the daughter and daughter's son of Ram Charittar, that the plaintiffs were joint with Bam Charittar and that the plaintiffs were entitled to a decree for possession. The decree that was framed by the trial Court was a decree against all the defendants giving the plaintiff possession. All the defendants were made liable to pay the costs of the plaintiffs. There can be no manner of doubt that the decree as given by the trial Court was against all the defendants including defendant 3, Mt. Kaulpati. There was an appeal by defendants 1 and 2 against the decree of the trial Court. The plaintiffs alone were impleaded as respondents to the appeal. Mt. Kaulpati was not a party to the appeal at all. The lower Appellate Court also agreed with the trial Court that the defendants were not the daughter and daughter's son of Ram Charittar. It recorded, if at all, a very unsatisfactory finding on the question of the jointness of the plaintiffs with Ram Charittar, and in the result it dismissed the defendants appeal.