RAGHUNATH DAS Vs. SHAH DURGA PRASAD

JUDGEMENT

(1.) This is an appeal by all the defendants in the original suit except the heirs of defendant 4. The plaintiff sued for a declaration that he was the absolute owner of certain property, and further for a declaration that the defendants had no rights at all in the property, though it happened that their names were fictitiously entered in the revenue papers. The case involves one of those difucult questions, which so often arise where there are a number of defendants and plaintiffs and one or other of them has died during the pendency of the suit and the hairs have not been brought on the record.

(2.) In the present case defendant 4 died during the pendency of the suit, and for the purpose of facilitating the decision of the cross-objections, which have been taken in the present appeal we may state immediately what occurred after the death of defendant 4, Upon learning of the death of defendant 4, the plaintiff applied to have his heirs brought upon the record, but he did not make his application until a period of more than three months had elapsed. One of the heirs of defendant 4 was a minor and notice (so we are informed by the respondent here who files the cross objections) was issued to the heirs of defendant 4 to show cause why one of the heirs should not be appointed guardian of the minor heir. The heirs of defendant 4 did not appear in response to this notice. But it is admitted for the respondent-plaintiff here that no notice was issued to the heirs of defendant 4 to show cause why they should not be brought on the record. There was, therefore, nothing to arouse seriously the attention of the heirs. Subsequently summonses in the suit were issued to these heirs to appear at the settlement of issues. Then they filed a written statement objecting that the application to bring them on the record had been made after the expiry of three months and that no justification was shown for that delay. The trial Court and the lower appellate Court have both accepted this objection, and it forms the basis of the cross-objections filed in the present appeal. We may say at once that the contention of the plaintiff that the heirs of defendant 4 were properly brought on the record, is on the facts that we have stated, untenable, and we, therefore proceed to the consideration of the appeal of the defendants.

(3.) The facts are that in the revenue records all the defendants in the present suit including defendant 4 appear as mortgagees in possession. The plaintiff claimed to be the absolute owner, and that the defendants had no right at all and that the entry of their names was "fictitious." In this state of affairs the defendants or some of them on behalf of all of them brought a suit for profits in the revenue Court, on the basis of the entry of their names, and obtained a decree. This fact is stated to us by the counsel for the defendant-appellants and is not controverted by the other side, The situation then was that the defendants could on the basis of the entry of their names on the record proceed to bring a suit every three years for pro fits, if the plaintiff refused to hand them over. Plaintiff, therefore, came into Court with the present suit. The defendants answer was that they and their ancestors had been in continuous possession as mortgagees for more than sixty years, and on this basis they ask ed for the dismissal of the suit.