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SharuddIn (ShaharuddIn in Vakalatnamah) Sheikh and Sabdar HossaIn Sheikh Vs. JijaraddIn Sheikh Ostagar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.543
AppellantSharuddIn (ShaharuddIn in Vakalatnamah) Sheikh and Sabdar HossaIn Sheikh
RespondentJijaraddIn Sheikh Ostagar
Excerpt:
civil procedure code (act v of 1908), order, rule 8, order vii, rule 4 - representative suit--notice, omission to serve, effect of--jurisdiction of court to adjudicate, upon-public right. - .....muhammadan community ware accustomed to worship. the court of first instance decreed the suit. the learned judge of the lower appellate court held that the suit was not properly before the court, on the ground that the suit being a representative suit and the plaintiffs having claimed no personal interest in the subject-matter of the dispute at all, the notice contemplated by the law had not been issued and, therefore, the plaintiffs were not entitled to sue on behalf of the muhammadan community of the village. the learned judge having disposed of the case in that manner further held that, even if it was a proper suit and had been properly before the court, he would, on consideration of the evidence, hold that the muhammadan community of the village, who were said to be represented by.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiffs against a judgment of the learned Subordinate Judge of Nadia, dated the' 24th May 1916, reversing the decision of the Munsif at Krishnagar. The plaintiffs sued in a representative capacity as representing the Muhammadan inhabitants of a particular, village, for a declaration that a small plot of land in the village formed a portion of the property belonging to the local mosque where the. Muhammadan community ware accustomed to worship. The Court of first instance decreed the suit. The learned Judge of the lower Appellate Court held that the suit was not properly before the Court, on the ground that the suit being a representative suit and the plaintiffs having claimed no personal interest in the subject-matter of the dispute at all, the notice contemplated by the law had not been issued and, therefore, the plaintiffs were not entitled to sue on behalf of the Muhammadan community of the village. The learned Judge having disposed of the case in that manner further held that, even if it was a proper suit and had been properly before the Court, he would, on consideration of the evidence, hold that the Muhammadan community of the village, who were said to be represented by the plaintiffs but in the view of the learned Judge, were not so, were not entitled to this property. It is clear that the learned Judge, when the Muhammadan community were not properly represented, had no right to adjudicate on the rights of that community. It requires a proper representative suit before the Court can adjudicate on public rights of this nature. It would never do to hold, where same stray plaintiffs come forward without any proper representation of the community but profess to represent them, that the Court would have jurisdiction at their instance to pronounce on a public right. In the present instance, the case was a hard one because the plaintiffs on their part had done all things necessary under the terms of the law to have the proper notices issued so that the suit might be properly constituted. They paid to the Court the appropriate sum for the service of such notices and one does not understand why, when the appropriate sum was paid, the machine of the Court operated so slowly that the notices were not served as required by the law. However, the notices were not served and the fault is that of the Court. It is obvious that the case has not been properly tried. The learned Judge ought to have tried the case so as to come to a final decision once for all as to whether this land did form a portion of the property belonging to the mosque in that locality or not. It, won't do to say that even if (bat community had been properly represented before him, he would have decided the case against them. We, therefore, set aside the decision appealed from and remit the case to the Primary Court with directions to the learned Judge there to re-hear the case de novo after proper notices have been duly served. Both parties will be allowed to adduce fresh evidence. Costs will abide the result of the re-hearing before the learned Judge of the Court of first instance.

Newbould, J.

2. I agree.


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