SHEIKH MOHAMMAD MURTAZA Vs. CYRIL INDERNATH DEY

JUDGEMENT

(1.) The facts so far as they are material to this appeal may be briefly stated as follows: It appears that in the District of Palamau there is a tenure which was formerly held by defendants 9 to 11 and the father of defendant 8 under defendant 7, the superior landlord. In this tenure defendants 1 to 6 acquired 12 annas interest before 1927 and one anna interest after 1927 and the plaintiffs acquired; the remaining 3 annas interest after 1928. In 1927 defendant 7 brought a suit for recovery of rent against defendants 9 to 11 and the father of defendant 8, and in execution of the decree passed in that suit, the tenure was sold and purchased by a benamidar of the plaintiffs in 1928. Defendants 1 to 6 thereupon deposited the decretal amount and the sale was set aside.

(2.) In 1930 defendant 7 brought another suit against defendants 9 to 11 and father of defendant 8 for the rent of the years 1984 to 1987 Sambat. The suit was decreed and in execution of the decree the tenure was sold again and this time it was purchased by defendant 1. The plaintiffs then brought the present suit to recover possession of their share, their case being that the decree obtained by defendant 7 was not a rent decree inasmuch as the suit had been brought without impleading the plaintiffs, defendants 1 to 6 and certain other persons who were necessary parties to the suit and accordingly the sale held in execution of the decree did not affect their share. The Courts below did not accept the plaintiffs contention and dismissed the suit. They held amongst other things that inasmuch as neither the plaintiffs nor defendants 1 to 6 were recorded as tenants in the landlord's sherista, the latter was entitled to sue the persons who were so recorded and that these persons must be deemed in the eye of the law to have represented the plaintiffs and other tenants in the suit.

(3.) The plaintiffs have accordingly preferred this second appeal. Before dealing with the points raised on behalf of the plaintiffs, I wish to dispose of a preliminary objection raised on behalf of the respondents. The objection is that the appeal has abated, because the plaintiffs failed to substitute within the time prescribed by law the heirs of defendant 7 who had died some time after the appeal was filed but before it was heard. On a reference to the record it appears that the appeal was filed on 21 September 1936, and defendant 7 died on 19 December 1937, after notice of the appeal had been served on him. The Court was informed of the death of this defendant on 31 October 1938, and on 16 November 1938, the appellants filed an application in which after stating that they had come to know about his death for the first time on 31 October 1938, they prayed that the delay in making the application might be excused and his heirs be substituted in his place.