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Rani Dhandei Kuer Vs. Fatma Zuhra and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All698
AppellantRani Dhandei Kuer
RespondentFatma Zuhra and ors.
Excerpt:
- - if the absence of the legal representatives of a deceased party from the record will result in the possibility of two in-consistent and contradictory decrees or will make it impossible effectually to execute a decree that may be passed in an appeal, the appeal must fail. on the other hand, the plaintiff's case was that the award was perfectly valid and binding on the heirs and successors-in-title of mohamad mehdi......an appeal, the appeal must fail. the decisions will naturally depend on the relief granted by the decree appealed against. in this case the plaintiff based her claim on an act alleged to have been jointly committed by all the defendants. a relief against the defendants jointly was claimed by the plaintiff in these terms:a perpetual injunction may be issued ordering the defendants to close the gola bazar, known as qutubganj, which they have newly opened on abadi plot no. 683 in mauza dilawarpur, pargana madiahun, district jaunpur, and not to open any bazar as against the plaintiff's gola in the said village, or at any other place in tahsil madiahun, in future.2. if this relief were granted to the plaintiff against the remaining respondents, it would not be within their power to comply.....
Judgment:

Ganga Nath, J.

1. This is a plaintiff's appeal against the decision of a learned Single Judge of this Court. The appeal arises out of a suit brought by her against the defendants-respondents and Mt. Zenab Bibi, since deceased, for an injunction to restrain thorn from allowing a grain market to be conducted on their plot No. 683 in mauza Dilawarpur and not to open any bazar in the said village or at any other place in tahsil Madiahun, and to recover Rs. 50 for damages. The plaintiff's case was that under the terms of an award made in 1884 between Durga Prasad, predecessor, in-title of the plaintiff, and Mohamad Mehdi, predecessor-in-title of the defendants, the defendants were precluded from allowing any market to be conducted in these villages. The defendants contended inter alia that the award was invalid, that they were not bound by it and that they were entitled to hold the market on their land. Both the lower Courts decreed the suit. On appeal by the defendants to this Court the learned Single Judge allowed the appeal and dismissed the suit. During the pendency of this appeal respondent 13, Mt. Zenab Bibi died. Her representatives were not brought on the record in her place. A preliminary objection is taken by learned Counsel for the respondents that the appeal must be held to have abated and should be dismissed. If the absence of the legal representatives of a deceased party from the record will result in the possibility of two in-consistent and contradictory decrees or will make it impossible effectually to execute a decree that may be passed in an appeal, the appeal must fail. The decisions will naturally depend on the relief granted by the decree appealed against. In this case the plaintiff based her claim on an act alleged to have been jointly committed by all the defendants. A relief against the defendants jointly was claimed by the plaintiff in these terms:

A perpetual injunction may be issued ordering the defendants to close the Gola Bazar, known as Qutubganj, which they have newly opened on abadi plot No. 683 in mauza Dilawarpur, pargana Madiahun, district Jaunpur, and not to open any bazar as against the plaintiff's gola in the said village, or at any other place in tahsil Madiahun, in future.

2. If this relief were granted to the plaintiff against the remaining respondents, it would not be within their power to comply with the decree and to close down the market, because the legal representatives of the deceased would still be entitled, under the decree of the learned Single Judge, to maintain the market on the land in dispute, and it would not be possible for the respondents to make them join with them in closing it down. It would not therefore be possible to execute the decree of this Court if the appeal were allowed. As already stated, the dispute was as to whether the award which was made in 1884 was binding on the heirs of Mohamad Mehdi. The respondents' contention was that the award was void and illegal and was not binding on them. On the other hand, the plaintiff's case was that the award was perfectly valid and binding on the heirs and successors-in-title of Mohamad Mehdi. The learned Single Judge has held that the award was void and illegal and was not binding on the successors-in-title of Mohamad Mehdi. This decree has become final so far as the legal representatives of the deceased respondent are concerned. If this appeal were allowed therefore there would be two inconsistent decrees in the same case. A joint relief is being sought for by the plaintiff against all the defendants, on whose joint act the cause of action for the suit is based. In the absence of the legal representatives of Mt. Zenab, it is not possible to grant this relief, because it involves the taking of action which cannot be completed without their joining in it. These difficulties are insurmountable. The appeal as it stands is imperfectly constituted and it is not possible to proceed with it. It is therefore ordered that it be dismissed with costs.


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