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Sriram Chandra Naik and ors. Vs. Hridoy Nath Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.409
AppellantSriram Chandra Naik and ors.
RespondentHridoy Nath Gupta and ors.
Cases ReferredBasir v. Fazle Karim
Excerpt:
appeal against joint decree - failure to join one respondent, effect of--dismissal of appeal against one respondent--appeal, whether can proceed. - .....title to the property and was in unlawful possession. the court of first instance dismissed the suit. on appeal, a joint decree was made in favour of all the plaintiffs. a second appeal was next preferred to this court. one of the plaintiffs died during the pendency of the appeal, and his legal representatives were brought on the record; one of these was a minor and an officer of this court was appointed his guardian ad litem. the appeal was heard on the merits and dismissed. an appeal was then preferred under clause 15 of the letters patent, but steps were not taken for the representation of the infant respondent. the result was that on the 5th february last, this court dismissed the appeal as against the infant. the defendant-appellant now seeks to proceed against the other.....
Judgment:

1. This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould. A preliminary objection has been taken that the appeal should not be heard on the merits, as no decree of dismissal of the suit can be made by this Court in the appeal as at present constituted. We are of opinion that this objection must prevail.

2. Eight persons as plaintiffs instituted this suit for declaration that the subject-matter of the litigation was dsbutter property dedicated to an idol Sri Sri Issur Raghunath Jin Bishnu Thakur and that there had been dealings with the property by the shebaits in a manner not justified by its character as debutter property. The plaintiffs accordingly prayed for a declaration of the true character of the property and for a decree for recovery of possession from the first defendant who had acquired no valid title to the property and was in unlawful possession. The Court of first instance dismissed the suit. On appeal, a joint decree was made in favour of all the plaintiffs. A second appeal was next preferred to this Court. One of the plaintiffs died during the pendency of the appeal, and his legal representatives were brought on the record; one of these was a minor and an officer of this Court was appointed his guardian ad litem. The appeal was heard on the merits and dismissed. An appeal was then preferred under Clause 15 of the Letters Patent, but steps were not taken for the representation of the infant respondent. The result was that on the 5th February last, this Court dismissed the appeal as against the infant. The defendant-appellant now seeks to proceed against the other respondents on the record. They contend that the appeal should not be heard on the merits, because even if the appeal succeeds, the decree in favour of the infant plaintiff must remain untouched, so that he will be in a position to execute the decree and evict the appellant. In our opinion, the appeal as at present constituted should not be heard for the reasons assigned. This view accords with the decision in Basir v. Fazle Karim 28 Ind. Cas. 703 ; 19 C.W. N. 290. This Court cannot be called upon to make two contradictory decrees in the appeal. The effect of the order of the 5th February 1917 is to confirm the decision of Mr. Justice Newbould in favour of the infant plaintiff; he has got a declaration of the true character of the property and is entitled to take possession of the property from the hands of the first defendant by execution of his decree. We cannot now hear the appeal against the other plaintiffs and hold that although they stand in the same relation to the property in suit as the infant, they are not entitled to the same relief.

3. The result is that this appeal is dismissed with costs.


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