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Mufti Abdul Aziz and ors. Vs. Shaikh MomIn and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.815
AppellantMufti Abdul Aziz and ors.
RespondentShaikh MomIn and anr.
Excerpt:
civil procedure code (act v of 1908), section 154 and order xli, rule 33 - appellate court power of--making decree in favour of party not made party in lower appellate court--right of appeal, saving of, when new code came into force--pending cases--procedure. - .....possession finding that amina bibi, defendant no. 5, has throughout been in possession of this plot as tenant and that he has in no way forfeited her right as such.2. it was argued before us that inasmuch as amina bibi was not made a party in the appeal in the court below no decree could be passed in her favour by this court. but we are of opinion that that contention is not sound. defendant no. 5 was not a party to the appeal in the court below which was preferred by defendant no. 1. the plaintiffs who come to this court on appeal hare joined amina bibi, defendant no. 5, as a party-respondent, and it appears to us that it is not only open to us but our duty to pass a decree which shall be final and shall decide the rights of all the parties to the suit who are parties to this.....
Judgment:

1. This appeal relates only to plot No. 1 of schedule No. 1 in the plaint. The learned Subordinate Judge has with regard to this plot dismissed the plaintiff's claim for khas possession finding that Amina Bibi, defendant No. 5, has throughout been in possession of this plot as tenant and that he has in no way forfeited her right as such.

2. It was argued before us that inasmuch as Amina Bibi was not made a party in the appeal in the Court below no decree could be passed in her favour by this Court. But we are of opinion that that contention is not sound. Defendant No. 5 was not a party to the appeal in the Court below which was preferred by defendant No. 1. The plaintiffs who come to this Court on appeal hare joined Amina Bibi, defendant No. 5, as a party-respondent, and it appears to us that it is not only open to us but our duty to pass a decree which shall be final and shall decide the rights of all the parties to the suit who are parties to this appeal, That authority is clearly given by Order XLI, Rule 33. It was argued that the order of the lower Appellate Court having been made before the first of January 1909 when the Civil Procedure Code of 1908 came into force, this appeal must be governed by the provisions of the Code of 1882. We cannot, however, accede to that argument. When the present Civil Procedure Code came into force on the 18th January 1909; it applied, so far as procedure is concerned, to all cases which were then pending or to be instituted. Section 154, which says, nothing in this Code shall affect any present right of appeal which shall have accrued to any party at its commencement,' must mean that nothing in this Code shall prejudicially affect any such right of appeal. That section can have no bearing on the powers of an Appellate Court in dealing with appeals before it. Taking then the case of defendant No. 5, it appears to us to be concluded by the finding of fact at which the learned Subordinate Judge has arrived. He found that she was the sole tenant of this plot of land, that she has not forfeited her right as a tenant in it, that she has never anywhere denied the title of the plaintiffs in it, that she lived separately from the defendant No. 1 and was entitled to remain in possession of the land on payment of rent. This being the state of facts, the lower Appellate Court was correct in passing a decree in her favour and dismissing the plaintiff's claim for ejectment and khas possession in respect of plot No. 1 of schedule No. 1.

3. This appeal must, therefore be dismissed with costs.


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