PRAHLAD CHANDRA SINGH Vs. BHIM MAHTO

JUDGEMENT

(1.) This is an appeal by the plaintiff who brought a suit for partition of a rent-free tenure consisting of village Mirdih in the District of Manbhum. The village has been recorded in the Record of Rights published in 1920 as comprised of 24 khewats, namely Khewats Nos. 2-1 to 2-24. The tenure formerly belonged to a family of three brothers Buchu, Dakshin and Gandhu. In course of time, the shares of all these brothers passed into the hands of outsiders. On 23 September 1935, the plaintiff who is the landlord of the village purchased the two-thirds interest of the first two brothers in execution of three decrees for arrears of cess obtained against the recorded tenure-holders.

(2.) The defendants on the other hand originally obtained a mokarrari lease of Gandhu's one-third share but subsequently purchased that share at an execution sale on 30 August 1890. The position therefore is that the plaintiff is now the holder of the two-thirds share of Buchu and Dakshin and the defendants of the one-third share of Gandhu. The suit was defended mainly on the grounds: (1) that there was a previous partition between the three brothers Buchu, Dakshin and. Gandhu long ago; (2) that the plaintiff's purchase of the two. thirds share of Buohu and Dakshin was not valid as the decrees for cess were "without jurisdiction" and null and void;" and (3) that the defendants acquired partly by settlement and partly by purchase some lands from the branches of Buchu and Dakshin and have been in possession of those lands adversely for a long time. The learned Subordinate Judge tried the suit, overruling all these defences, passed a preliminary decree for partition. On appeal by the defendants the learned District Judge has reversed the decree except with regard to the lands recorded in ijmal Khewat No. 2-24 area 21.99 acres. Hence this second appeal by the plaintiff.

(3.) The first point raised by Mr. S.M. Mullick on behalf of the appellant is that the appeal before the District Judge was not competent. It appears that during the pendency of that appeal one of the appellants, Rakhal Mahto, who was defendant 5 died on 18 July 1937 and without his heirs being brought on the record, the appeal was decided on 27 September 1937, that is to say within the period allowed for substitution. Mr. Mullick's contention is that after the death of Rakhal the appeal could not proceed in the absence of his heirs because in a partition suit all the co-sharers are necessary parties. He relies on the cases in Churaman Mahto V/s. Bhatu Mahto AIR (1935) Pat 241, Mahammad Abjal V/s. Haflzannessa Khatun AIR (1926) Cal 741 and Naimuddin Biswas V/s. Maniruddin Laskar .