- (1.) The plaintiff filed the plaint in this suit on the 13th May, 1885, to recover possession of 4 hals, 1 lader 4 joists and 3 reks of land appertaining to pottahs Nos. 50891 and 161, which he purchased in execution of a decree as the property of one Sham Pershad The suit was brought against Tarini, defendant No. 1, and three other persons. The second defendant is described in the plaint as Nitobashini Chowdh-rain, guardian on behalf of her minor son, Suresh Chunder Warn Chowdhry.
(2.) The plaintiff alleged that defendant No. 1 and the husband of Nitobashini Chowdhrain and father of the minor Suresh Chunder, viz., Durga Churn, dispossessed him. All the defendants are stated in the plaint as living in commensality, i.e., are members of a joint family. On the 14th May the Subordinate Judge directed the plaintiff to produce within one day an affidavit to the effect that the mother of the minor defendant is his guardian. He, the Subordinate Judge, evidently understood from the plaint that the defendant No. 2 was the minor Suresh and not his mother Nitobashini, and the pleader who presented the plaint was evidently also of the same view. On the plaintiff making an application with the required affidavit, the Court on the 15th May passed the following order: The plaintiff having with an application produced the affidavit regarding the minor defendant being under the guardianship of his motherland the said papers being brought up with the plaint, it is ordered that the suit be registered and the summons he issued upon the defendants, &c., &c. The defendants, other than the defendant No. 2, filed a written statement disclaiming their connection with the land in suit and denying having dispossessed the plaintiff. Nitobashini Chowdhrain filed a written statement alleging that a portion of the land in suit appertained to potash No. 165, and had been the property of her co-wife; that on her death it devolved upon her husband under the law of inheritance, and that since the death of her husband she has been in possession of it "on behalf of the minor defendant."
(3.) The Court of first instance dismissed the suit. On appeal the District Judge awarded a decree in favour of the plaintiff for a portion of the land claimed, finding that it appertains to the plaintiff's estate and not to the defendants' estate. The minor Suresh Chunder, represented by his mother as guardian, has preferred this second appeal.;