Ganga Nath, J - (1.)This is a defendants appeal and arises out of a suit brought against them by the plaintiffs, respondents for possession over the fixed rate tenancy described in the plaint and Rs. 90 for mesne profits for three years. The tenancy in dispute belonged to Sital Dube. On his death it was succeeded to by his widow Mt. Phulbasi. She died in August 1933. Mt. Phulbasi and her daughter mortgaged the tenancy to Bhawani Palat and subsequently sold the same to him on 7 January 1901. Bhawani Palat gifted the same to the defendants in 1925. The plaintiffs claimed the tenancy in dispute as reversioners of Sital Dube. The defendants contended that the plaintiffs were not the nearest reversioners of Sital Dube and that the transfer had been made for legal necessity. The trial Court found that the plaintiffs were not the reversioners and dismissed the suit. It also found that there was no legal necessity for the sale deed. Sampat Dube, one of the plaintiffs, went up in appeal. The lower Appellate Court found that the plain-tiffs were the reversioners and decreed the suit. It may be mentioned hare that both the plaintiffs claimed the property in equal shares as being reversioners of equal degree. No appeal was filed by Nand Gopal Dube. The lower Court decreed the suit in his favour also.
(2.)It has been urged on behalf of the defendants-appellants that the Civil Court had no jurisdiction as the suit fell under Section 99, Tenancy Act. Section 99, Tenancy Act has no retrospective effect. The cause of action arose in August 1926. The suit was, therefore, cognizable by the Civil Court. The finding of the lower Appellate Court as regards the reversionership of the plaintiffs was challenged by the appellants on the ground that the finding was based on speculation. The word "speculation" has no doubt been used by the lower Court but in a wrong sense. While discussing and rejecting the evidence of Chian as to whether Sital predeceased his father, the learned Judge observed: In short he is not also in a position to Bay definitely about this point. The result is that the Court is left to its own speculations on the question which of the two, father and son, predeceased the other. Hence I will deal now with the circumstantial evidence.
(3.)The learned Judge thereafter considered the circumstantial evidence and recorded a finding to the effect that Sital died after his father. The finding is not based on mere speculation but is based on inferences which the learned Judge drew from the oral and documentary evidence and certain other facts before him. The finding cannot therefore be called merely speculative. The finding of the learned Judge being one of fact and based on evidence is conclusive and final. As stated above, out of the two plaintiffs only one appealed to the lower Court. No appeal was filed by Nand Gopal Dube. The lower Court has decreed the suit in his favour also. The appeal had been filed by Sampat Dube in respect of the whole suit. Nand Gopal Dube was impleaded as a respondent. It was contended on behalf of the appellants that the lower Court could not decree the suit in favour of Nand Gopal Dube as the decree against him had become final. Reliance was placed on Rangam Lal V/s. Jhandu (1911) 34 All. 32. This case relates to Order 41, Rule 33. There the plaintiff sued the defendant for rent of a holding and claimed Rs. 294-7- 0 and the defendant pleaded that the claims had been discharged, but the Assistant Collector gave the plaintiff a decree for Rs. 96-11-11. The plaintiff appealed against the decree in so far as it dismissed a part of the claim. The defendant submitted to the decree. He neither filed a cross-appeal nor objections as provided by Order 41, Rule 22, Civil P.C., On appeal by the plaintiff in respect of the portion of the claim which had been dismissed, certain issues were remitted by the District Judge to the trial Court. The District Judge on return of the findings on the issues remitted by him to the Assistant Collector dismissed the claim of the plaintiff in toto. It was held by the Full Bench that the dismissal by the Judge of the plaintiff's suit in its entirety was not a proper exercise by him of the powers conferred by Order 41, Rule. 33. If the defendant was aggrieved by the decree against him for Rs. 96, there was no reason why he should not have appealed or filed objections.