PARMESHRI KUNWAR Vs. DHUMAN KUNWAR

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the respondent and other persons as plaintiffs for the demolition of certain constructions made by the defendants-appellants on a vacant space in the abadi. The defence was that these constructions were only on the old foundations of previous constructions which had been enjoyed by the defendants, so that the defendants enjoyment of the land occupied by them was established and could not be interfered with. The trial Court also held that as the plaintiffs had not joined with themselves all the cosharers who might have complained of the constructions and as the plaintiffs had not shown that they particularly suffered by reason of the constructions they could not be given a decree. The lower appellate Court in appeal, by one only of the plaintiffs, preferring the report of an amin to that of defendants oral evidence, decided against the constructions being on the foundations of old constructions and against the defendants contention that they had long been in possession of this land. It also held that there was no necessity for the plaintiffs to show special damage to themselves to justify their getting a decree for joint possession.

(2.) In this second appeal the first plea taken is that the lower appellate Court could not grant the appeal in favour of all the plaintiffs on an appeal filed by only one of the plaintiffs. Reliance is placed on a decision of a two Judge Bench of this Court Ambika Prasad V/s. Jhinak Singh A.I.R. 1923 All. 211. But as pointed out by a single Judge in a more recent decision (Maha Mangal Rai V/s. Kishan Kandu, reported in ), that decision, although quoting with approval a Calcutta decision to the effect that a single plaintiff cannot proceed with an appeal without making other plaintiffs parties to the appeal, did not require this view of law for the particular case, which was decided on another ground. It seems to me impossible to support any such contention in the face of the clear language of Order 41, Rule 4. I hold that the Court was entitled to pass a decree in favour of all the plaintiffs.

(3.) A second plea taken up is that the lower appellate Court was not justified in coming to a finding that the constructions were new merely on the ground that the amin could not find the old foundations. The finding as to the newness of the construction was a finding of fact and the report of the amin was relevant. Whether that report was sufficient reason for rejecting the plaintiffs oral evidence or not is a matter that cannot be raised in second appeal.