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Arjan Mirdha and on His Death One of His Heirs and Legal Representatives Serajul Islam Mirdha and Aptaruddi Vs. Kali Kumar Chakerbutty and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal294,68Ind.Cas.194
AppellantArjan Mirdha and on His Death One of His Heirs and Legal Representatives Serajul Islam Mirdha and Ap
RespondentKali Kumar Chakerbutty and ors.
Cases ReferredKali Dayal v. Nagendra Nath
Excerpt:
abatement of appeal - decree for joint possession of land--appeal by defendant--death of one respondent--no substitution in time, effect of--civil procedure code (act v of 1908,), order xxii, rules 4 (1), 11. - .....of these appeals, the first plaintiff died. there was delay in substituting his heirs and the learned judge in the lower appellate court held that each of the appeals about 3 as against the plunkiff no. 1 respondent. when the appeals name up for hearing, the argument was advanced that they were no longer omnificent and the judge gave effect to that contentions and dismissed the appeal as against all the resp indents, the defend ants nos. 4 and 5 have again preferred these appeals to this court. on their behalf, it is urged that the learned judge was wrong. we have been shown the decisions of this court bearing on the question. two are referred to in the judgment of the lower appellate court since then another judgment has been delivered in the case of kali dayal v. nagendra nath.....
Judgment:

Walmsley, J.

1. The plaintiffs brought a suit to recover possession of some land and in the plaint they specified their respective shares. The first Court decreed the suit. Separate appeals were preferred by the defendant No. 4 and the defendant No, 5 to the lower Appellate Court. After the institution of these appeals, the first plaintiff died. There was delay in substituting his heirs and the learned Judge in the lower Appellate Court held that each of the appeals about 3 as against the plunkiff No. 1 respondent. When the appeals name up for hearing, the argument was advanced that they Were no longer omnificent and the Judge gave effect to that contentions and dismissed the appeal as against all the resp indents, The defend ants Nos. 4 and 5 have again preferred these appeals to this Court. On their behalf, it is urged that the learned Judge was wrong. We have been shown the decisions of this Court bearing on the question. Two are referred to in the judgment of the lower Appellate Court since then another judgment has been delivered in the case of Kali Dayal v. Nagendra Nath (1). In that judgment, most of the case on the paint are reviewed and the effect of the judgment is to show that the decisions of the lower Applets Court is correct. Our attention is drawn, however, to one particular passage to be found on piga 43* of this last mentioned report where there is the remark, after reference to one particular case, 'no question of shares Was in controversy.' It is said here that, in as such. as 'the plaintiffs have specified their shares, the principle of that ruling doss not apply. I fail to see that. It appears to me that the mere specification by the plaintiffs that each individual plaintiff's share is so much does not alter the nature of the degree. The decree remains a degree for joint possession and, therefore, in my opinion, the decision of the lower Appellate Court is correct, and these two appeals are dismissed with costs. We allow only half the usual hearing fee in each case.

Suhrawardy, J.

2. I agree.


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