BHOLANATH THAKUR AND ANR. Vs. SARVANANDA KOTOKY AND ORS.

JUDGEMENT

(1.) THIS appeal is on behalf of the Plaintiffs. The two Plaintiff's who are father and son, brought the suit for declaration of their title and possession over the disputed land and for manse profits. Plaintiffs' case as set out in the plaint is that the property in dispute belonged to one Chandreswar Sarma Kakati who executed a will of all his properties to Defendants Nos. 4 and 5. Defendant No. 1 who is since dead, was also one of the sons of late Chandreswar Sarma Kakaty but he had no interest in the disputed property. Defendants Nos. 4 and 5 obtained probate and letters of administration of the will from the District Judge and thus became entitled to 84 bighas 4 kathas 1 lessa of land of patta No. 35 of Simaluguri Mauza. This property was amicably divided among themselves. By a sale deed dated 1st June 1956 Plaintiff No. 1 purchased 8 B 4 K. 2 lechas of land being the northern half of dag No. 864 from Defendant No. 4 for. Rs. 3000/ - and by another sale deed of the same date Plaintiff No 2 purchased half of dags Nos. 1010, 856, 851 and 966 and 3 B. 4 Kathas of dag No. 986 from Defendant No. 4 for Rs. 3000/ - Thereafter according to the Plaintiff possession was delivered to them but the Defendants Nos. 1,2 and 3 interfered with their possession. On the 1st August 1956 the deceased Defendant No. 1 filed a case under Section 145, Code of Criminal Procedure. In the court of the Magistrate at Jorhat in which his possession was declared. Hence the present suit was brought by the Plaintiffs.

(2.) IN paragraph 8 of the plaint it is stated that the Plaintiffs after purchase obtained possession but Defendants Nos. 1, 2 and 3 disturbed Plaintiffs' possession of the suit lands and by virtue of order in Misc. case No. 101 of 1956 under Section 145, Code of Criminal Procedure Defendants Nos. 1, 2 and 3 had been possessing the suit land.

(3.) A number of issues were framed. The trial court decided all the issues in favour of the Plaintiff and held that the Plaintiffs acquired valid title to the property. It, however, held that the Plaintiffs were not entitled to any decree for mesne profits. The suit was dismissed on the finding that as all the heirs of the deceased Defendant No. 1 were not brought on the record, the suit has abated as a whole. The finding of the trial court is that though Defendants Nos. 2 and 3 are some of the heirs of Defendant No 1 according to the Plaintiffs' own statement, there were some other heirs of the deceased Defendant and as such the suit must abate as a whole. An application was filed by the Plaintiffs for substitution of the names of the heirs of the deceased Defendant No. 1 by amendment of the plaint. That application was disposed of on the 13th July, 1959. The prayer for amendment was disallowed as the application was filed beyond time. It was, however, held by that order that the whole suit should not fail on that account and that the suit abates against Defendant No 1 alone. In the final judgment by which the suit has been disposed of, the learned Judge dealing with the previous order has observed that at the time when he passed the order of the 13th July 1959 he took that the presence of Defendants Nos. 2 and 3 would be sufficient. Even the petition for amendment does not exhaust the names of the heirs. The evidence of Plaintiff No. 1 has changed the whole position and it now appears that there cannot be an effective decree against all the heirs of Defendant No 1. It is difficult to follow the reasoning of the court below. One of the grounds given by him for not relying upon his earlier order of the 13th July, 1959 is that he thought that Defendants Nos. 2 and 3 sufficiently represented the interest of Defendant No 1 and he goes further and contends that even the application made for amendment did not contain the names of all the heirs other than Defendants Nos. 2 and 3 as disclosed in the evidence of Plaintiff No. 1.