KESHWAR SAO Vs. GUNI SINGH

JUDGEMENT

(1.) This is an appeal by the defendants second party in an action in which plaintiffs claimed to recover a sum of Rs. 2200 by way of damages against either the defendants first party or the defendants second party. That was the alternative claim prayed for in the relief portion of the plaint.

(2.) The claim was made in these circumstances: Plaintiffs father had executed certain mortgages between the years 1912-1917, three in number in favour of certain parties, only one of which need be mentioned, namely the defendants first party in this action. He was the mortgagee in the first of these three transactions. Later, in January 1918, plaintiffs executed an ijara deed in favour of the defendants second party for a sum of rupees 800 by which the defendant had undertaken to pay off two of the mortgages to which I have referred. It was not necessary to pay off the first mortgage. The position as regards that mortgage would be understood if I repeat what I have already stated that the first mortgage of 1912 was in favour of the defendants first party. Now in the plaint the plaintiffs claimed that the transaction of 9 January 1918 was a farzi transaction being in the name of defendants second party but in fact being the transaction of defendants first party. The trial Court came to the conclusion that the real ijardar in the transaction of 1918 was defendants first party. No appeal was preferred by the plaintiffs against that decision. But there was a dispute in the Court of Appeal between the defendants first party and the defendants second party and in spite of the fact that, as I have already stated, there had been no appeal by the plaintiffs, the Judge in the Court below came to the conclusion that the real persons behind the transaction of 1918 were the defendants second party.

(3.) Now, in those circumstances, there having been a decree against defendants second party, they have appealed to this Court. ? The first argument advanced on their1 behalf by Sir Sultan is that in the circumstances of the case the Judge was not in a position, nor was he entitled, to make a decree in favour of the plaintiffs against the defendants second party. The reason stated is this: that throughout the plaint the case set out by the plaintiffs was a case against defendants first party.