DJHANI SAO Vs. BISHUN PRASAD SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration substantially to the effect that plaintiffs share in tauzi No. 11010 should correspond to three annas six pies of the original estate (and not less) and that the defendant's share should correspond to one anna (and not more). The lower Courts have concurrently held that the plaintiffs have made out their case. Defendant appeals, and on his behalf two points have been raised.

(2.) The first point is that the suit was barred under Section 42, Specific Relief Act. This point was taken in the written statement of the defendant and an issue was actually framed on it. It appears from the judgment of the trial Court, however, that the issue, like some others, was not pressed. The point was raised in the lower Appellate Court, but the learned Additional District Judge who heard the appeal pointed out that though it had been stated in the memorandum of appeal that the point had been pressed in the lower Court, there was no affidavit in support of the allegation, and that therefore the point could not be entertained.

(3.) He also however looked into the point on merits and came to the conclusion that there was nothing in it on the ground that there was no evidence to show that the plaintiffs did not possess the share claimed by them, and that though the defendant had obtained some rent decrees against some tenants in respect of the share recorded in his name in the Land Registration Register, which share is in excess of what has now been made out to belong to him properly, this cannot amount to plaintiffs dispossession.