BARKAT ALI HAJI Vs. PRASANNA KUMAR TALUKDAR

JUDGEMENT

(1.) This appeal has arisen out of a suit for rent. The suit was decreed by the trial Court. The defendants then preferred an appeal during the pendency of which one of the plaintiffs respondents named Raja Mia died. The death of this person took place admittedly some time in the year 1925. The fact of his death, however was not brought to the notice of the lower appellate Court by any of the parties. On 8 March 1926, the lower appellate Court allowed the appeal and reversing the decree of the trial Court dismissed the suit. The remaining plaintiffs then preferred this present appeal.

(2.) The contention that is sought to be urged on behalf of the said appellants is that the decree of the lower appellate Court in so far as it was a decree passed in an appeal which was not properly constituted, the suit out of which the said appeal has arisen being one for rent and the decree from which that appeal was taken being a joint decree for rent in favour of all the plaintiffs, was a nullity inasmuch as one of the plaintiffs had died1 and his heirs had not been substituted in his place. The answer which the respondents give to this contention is that they were misled by the fact that the present appellants had instituted other suits for rent against them alleging that the interest of Raja Mia in the properties had vested in themselves only.

(3.) In order to understand the respective-contentions of the parties it is necessary to give a few dates and facts. On 30 July 1925, that is to say when the appeal in the present case was pending before the lower appellate Court, the remaining plaintiffs instituted another suit for rent against the respondents in which they stated that Eaja Mia having died, his interest had vested in his uncles, plaintiffs 4, 5 and 6 Abdul Hakim, Amir Hamja and Badsha Mia. The plaint in this suit was verified by all the plaintiffs in the suit including plaintiff 1 Barkat Ali Haji. This second appeal was filed" in this Court on 21 June 1926 and the main ground of the appeal was the in-validity of the decree due to Raja Mia s-death. On 22 May, 1928 the said Barkat Ali Haji swore to an affidavit in which he stated that Eaja Mia had died on 8 August 1925 but that no application for substitution of his heirs had been made in the lower appellate Court and that Court made a decree against all the plaintiffs including Raja Mia who was dead. It will appear therefore that the date of Raja Mia's death as given in the said affidavit could not be correct, because though it was stated therein that Eaja Mia died on 8 August 1925, in the plaint to which I have already referred which was filed on 30 July 1925 it was stated that Raja Mia had; already died. After filing the appeal to this Court on 21 June 1926 accompanied with the aforesaid affidavit of Barkat Ali the said remaining plaintiffs,, including the said Barkat Ali Haji instituted another suit for rent against the respondents on 16th September 1926 purporting, to claim the entire rent audi without making any mention of anybody; else as the heir of the said Raja Mia.