BODARDOJA Vs. AJIJUDDIN SIRCAR

JUDGEMENT

(1.) This appeal has arisen out of suit which was instituted by the plaintiffs for recovery of possession on ejectment of the defendants. The trial Court decreed the suit on contest as against some of the defendants and ex parte against the others. It declared the plaintiffs title to the land and directed that they would recover khas possession on evicting the defendants therefrom. The defendants thereupon preferred an appeal. The learned Subordinate Judge who dealt with that appeal dismissed the plaintiffs claim holding, that although he found in favour of the plaintiffs on the merits, the decree of the trial Court was to be reversed and the suit dismissed on the ground that notices under Section 106, T.P. Act, were neither sufficient nor properly served.

(2.) The plaintiffs have then preferred this second appeal and on their behalf the findings of the Subordinate Judge, both on the question of sufficiency of the notices as also on the question of their service, have been challenged in this appeal.

(3.) As regards the sufficiency of the notices what has been found against the plaintiffs by the Subordinate Judge is that the notices purported to have been signed by certain persons as am-mukhtears on behalf of certain ladies and that it had not been proved in the case that the persons who purported to sign on behalf of the said ladies as such am-mukhtears had been duly authorized by the said ladies to issue the said notices. The learned Subordinate Judge has found that upon the evidence in the case proper execution of the am-mukhtearnamas had not been duly proved, and further more that although in the am-mukhtearnamas power was given to the am-mukhtears to sue in ejectment there was nothing said conferring any authority to the am-mukhtears to issue notices to quit. As regards this matter it is sufficient for us to say that in the written statement that was filed on behalf of the defendants no question as to the want of a power of this character in the am-mukhtearnamas or as to the am-mukhtearnamas not having been duly executed by the ladies appears to have been raised. If it was the defendants desire to contest the validity of the notices upon grounds such as these, it was clearly their duty to put forward their objection on this head definitely and specifically in the written statement in order that the plaintiffs could have produced necessary evidence showing due and proper execution of the am-mukhtearnamas and the fact that the power to issue notices on behalf of the ladies was conferred thereby. Moreover even if there was any defect in the am-mukhtearnamas as regards these matters the plaintiffs could have proved that the notices were issued under authority duly given by the ladies because the law does not say that such authority must necessarily be given in writing. It may also be mentioned that the power to sue in ejectment should ordinarily be taken to include power to take up such action as may be necessary as preliminaries to the institution of such a suit. In view of the fact that the objection was not taken in the written statement and the matter did not form the subject matter of discussion in the trial Court and was not even mentioned in the grounds of appeal which the defendants preferred to the lower appellate Court, it was not right on the part of the learned Subordinate Judge to have gone into this question at all.