- (1.) S. K. Phaujdar, J. This second appeals directed against the judgment and decree dated 24-5-1996 passed by the VIIth Additional District Judge, Kanpur Nagar, in Civil Appeal No. 98 of 1992 whereby he had reversed the judgment and decree dated 29-5-92 recorded by the IInd Additional Civil Judge, Kanpur Nagar, in Suit No. 3 of 1971 decreeing the suit of the plaintiffs against the defendants (present respondents. ).
(2.) THE suit was brought before the Civil Judge originally by Smt. Rewti Devi, widow of Lala Chiranji Lal, making, amongst others, Smt. Kamla Devi, a co-widow, a respondent. Subsequently, on the death of Smt. Rewti during the pendency of the suit Smt. Kamla Devi was transposed as a plaintiff. The suit of the plaintiffs was for a declaration that the decree passed in suit No. 2493 of 19 (56 (Vimal Kumar Jain v. Vijai Kumar Khandelwal) was void. The suit was also for permanent injunction against the aforesaid Vimal Kumar Jain and others. It was stated in the suit that Lala Chiranji Lal was the proprietor of M/s. Aruna Iron Trading Company and for the purpose of the business of this Firm a gowown was taken on rent. Smt. Rewti was the first wife, no children were borne through her and Lala Chiranji Lal married Smt. Kamla Devi for the second time and she gave birth to Vijai Kumar and Narain Khandelwal. The landlords for the tenanted premises were the aforesaid Vimal Kumar Jain and others. It was alleged that on the death of Chiranji Lal in the year 1961 the tenancy was inherited by Smt. Rewti and Smt. Kamla Devi and two sons of Smt. Kamla Devi. The Proprietorship of the Firm Aruna Iron Trading Company was also inherited by these persons. Vimal Kumar Jain and others, the landlords of the godown, had filed a Suit No. 2493 of 1966 against the two sons of Chiranji Lal, namely, Vijai and Narain, and got a decree of eviction. The decree of the Additional Munsif dated 21-4-69 recorded in that suit was challenged in a Civil Appeal by Vijai and Narain and this Civil Appeal was also dismissed on 25-7-69. Vijai and Narain filed a second appeal before the High Court in Second Appeal No. 1755 of 1969 and this second appeal was also dismissed on 25-9-70. No notice of eviction was served on Smt. Rewti Devi and Smt. Kamla Devi, widows of Chiranji Lal nor were they made parties in the earlier suit and the decree in the aforesaid Suit No. 2493 of 1966 was not binding against Smt. Rewti and Smt. Kamla Accordingly, the aforesaid prayers were made and Vimal Kumar Jain and others were sought to be enjoined from creating any disturbance in the possession of Smt. Rewti and Smt. Kamla in the suit godown as tenant. The suit was contested by the first three respondents who were successors to the original landlords and they filed a written statement. But it was accepted that Vijai and Narain and M/s. Aruna Iron Trading Company were tenants in respect of the fodown. It was denied that the plaintiffs mt. Rewti and Smt. Kamla were ever the tenants therein. It was stated that Vijai and Narain were surviving partners of M/s. Aruna Iron Trading Company and they were rightly impleaded as tenants in place of Lala Chiranji Lal in the earlier suit and a proper decree was passed therein. Smt. Rewti and Smt. Kamla were never tenants in the godown and they were not necessary parties nor had they any possession in the godown. They could not have claimed notice of eviction in the earlier suit Vijai Kumar Khandelwal and Narain Kumar Khandelwal never missed any plea that Smt. Kamla or Smt. Rewti was a necessary party. At the trial several issues were framed touching the question if Smt. Kamla and Smt. Rewti were the wives of Lala Chiranji Lal and if they were tenants in the alleged accommodation. A further question was at issue before the trial court as to whether the decree in Suit No. 2493 of 1966 was binding against Smt. Kamla and Smt. Rewti and if Smt. Kamla was a co-tenant for the godown and if the suit was time barred or was barred by the principles of acquiescence and estoppel. The trial court decreed the suit in favour of Smt. Kamal Devi and declared that the earlier decree in Suit No. 2493 of 1966 was void so far Smt. Kamla was concerned and she was not bound by it. Smt. Rewti was dead by that time and she was represented by Harish Kumar Khandelwal grandson of Chiranji Lal Khandelwal. There was no decree in favour of Harish Kumar Khandelwal. It was declared that Smt. Kamla Devi was a co-owner of M/s. Aruna Iron Trading Company and was a co-tenant with Vijai and Narain for the godown in question. Accordingly the first three respondents were directed not to dispossess Smt. Kamla Devi in pursuance to the decree of eviction in Suit No. 2493 of 1966.
(3.) THE first three respondents preferred Civil Appeal No. 98 of 1992. No. cross appeal or cross objection was preferred by Harish Kumar Khandelwal. In this first appeal the learned Judge found that there was only one legal issue in the suit as to whether, on the death of Chiranji Lal, his heirs became tenants-in- common or joint tenants. He held that his heirs became joint tenants and in his view when the right of one amongst several joint tenants was determined up to the High Court, it was binding on all other joint tenants. THE learned Judge was further of the view that the learned court below recorded a wrong finding on a supposition that they were tenants-in-common. Accordingly the suit was dismissed. In the judgment there was a further observation that Smt. Kamla Devi had made a admission that she had approached the High Court in that earlier suit and the first appellate Judge held that upon this admission it must be held that Kamla's rights were also determined and so the suit was barred by limitation. The present appeal was preferred by Smt. Kamla Devi and Harish Kumar Khandelwal (as an heir to Smt. Rewti ). Before presentation of the appeal a caveat was lodged on behalf of Vimal Kumar Jain and others. A preliminary objection was taken on the ground that Harish Kumar Khandelwal could not prefer this second appeal as the trial court had decreed the suit in favour of Smt. Kamla Devi only meaning thereby that suit of Smt. Rewti (Harish Khanderwal in her place) was dismissed and ho first appeal was preferred by Harish Khandelwal. Upon that preliminary objection it was ordered on 17-7-96 that in the absence of approaching the court in a first appeal Harish Khandelwal had no right to move a second appeal.;