Bhagwati Kuer vs Jagdam Sahay and others

Das, J.—This is an application for review of our judgment dated the 21st June 1921. The principal ground urged by Mr. Sushil Madhab Mullick on behalf of the applicant is that we have given a decree to the plaintiffs which they did not ask for in the plaint.

The suit was a suit for possession of certain properties set out in the schedule. The plaintiff claimed to be the reversioner of one Girwar Narain and entitled to the properties on the death of his daughter, Fateh Kuer. The applicant claims tor hold a makarari lease in her favour granted to her by Fateh Kuer.

The plaintiff''s case in the plaint was that Girwar Narain was separate from his brother Sadhoo Narain and that upon his death his estate devolved upon his daughter, Fateh Kuer, and that upon Fateh Kuer''s death the plaintiff became entitled to the estate which belonged to Girwar Narain. It appears that upon Girwar''s death, there was a contest between Fateh Kuer on the one hand and Ram Prasad and Sant Prasad, sons of Sadhoo Narain on the other. There was a settlement between the parties by which the properties of Girwar Narain were divided between all the parties, who claimed to have an interest in the estate of Girwar Narain.

The plaintiff became a party to that compromise through his father but it appears that he was then an infant and never ratified the transaction into which his father entered on his behalf. He accordingly by his action claimed to recover possession of the properties and cited the applicant as one of the principal defendants in the suit. He alleged in the seventh paragraph of his plaint that the defendant No 2, that is to say, the applicant, representing herself as the purchaser of perpetual mokarari right created under a deed executed by Musammat Fateh Kuer, was in unlawful possession of the property described in schedule I and that the defendant No. 1 was bolding unlawful possession like a proprietor over the property mentioned in that schedule Without having any right whatsoever.

The applicant, who, as I have mentioned, was cited as defendant No. 2 in the action, entered appearance and claimed under the mokarrari deed executed in her favour by Mussammat Fateh Kuer. That was the claim which she put forward in the action. Her case was that Girwar Narain was Joint with his brother Sadhoo and that the compromise between the parties was binding upon the plaintiff. She accordingly contended in her written statement that Fateh Kuer took an absolute interest in the properties which were assigned to her and was competent to execute a mokarrari deed in her favour.

By our judgment we came to the conclusion that Girwar Narain was separate from Sadhoo and that the compromise between the parties did not operate to give any absolute title to Fateh Kuer and that the compromise was not binding upon the plaintiff. We gave the plaintiff a decree for possession as against all the defendants.

Mr. Sushil Madhab Mullick''s argument is that the plaintiff claimed possession of the proprietary interest in the properties and that there was no power in the Court to give him a decree in respect of the mokarrati interest which is in the applicant for the reason that the plaintiff never claimed possession of that interest.

We are by no means prepared to accede to the argument of Mr. Mullick; but assuming that his contention is correct, the point becomes one of technicality without any substance to recommend it. The difficulty can be remedied at any time by amendment of the plaint, and if we are to grant a review we would be compelled to allow any application for amendment that might be made on behalf of the plaintiff if in justice the plaintiff is entitled to a decree as against the applicant.

Mr. Mullick then contended that in justice the plaintiff was not entitled to any decree as against his client, inasmuch as the question as between the plaintiff and Ram Prasad was left open. It appears that during the pendency of the case, the plaintiff and Ram Prasad entered into a settlement and by our judgment we did not, in any way, decide the question as between the plaintiff and Ram Prasad. Mr. Mullick''s argument now is that if any one dispossessed the plaintiff it was Ram Prasad and that as his client claims title under Ram Prasad, it is unfair to give a decree to the plaintiff as against his client, leaving the entire question open as between the plaintiff and Ram Prasad.

In the first place it may be pointed out that his client does not claim any title through Ram Prasad, she hold under a mokarrari deed executed in her favour by Fateh Kuer; that is, the deed which she sets up in her written statement. It is quite true that on Fateh Kuer''s death, there was a contest in the Land Registration Department as between Ram Prasad on the one hand and Fateh Kuer''s daughter on the other as to who was entitled to be registered in the Land Registration Department in the place of Fateh Kuer, and the Land Registration Department decided the question in favour of Ram Prasad: and we have no reason to doubt that since that decision the petitioner has been paying rent to Ram Prasad.

Mr. Mullick''s contention is that we must regard that decision subsequent to the death of Fateh Kuer as a new settlement by Ram Prasad in favour of his client. I cannot look upon the decision in that way at all. The petitioner claims under Fateh Kuer and though it is quite true she is now paying rent to Ram Prasad because Land Registration Department decided the question in favour of Ram Prasad, still she claims to be in possession of the property, not by virtue of any settlement made by Ram Prasad, but by virtue of the settlement made by Fateh Kuer.

The question, therefore in the form in which it has been raised by Mr. Mullick, does not arise; but assuming it does arise. I am not prepared to admit that we are incompetent to give a decree to the plaintiff for possession as against the person in judicial possession of the property, if for some reason the plaintiff does not choose to claim any relief as against the party who may put the other party in actual possession of the land. The decision of the Bombay High Court to which I referred in the course of my judgment Kashi v. Sadashiva, (1898) 21 Bom. 229, is conclusive on the point. Mr. Mullick relied upon the case of H. H. Cannon v. Bissonath Adhikari (1879) 5 C L. R. 154.

It appears that that case was subsequently relied upon by the Calcutta High Court in a case which was reversed by the Judicial Committee in the case of Raja Durga Prasad Singh v. Broja Nath Bose, (1912) 39 Cal. 696=15 I.C. 219=39 I.A. 133 (P.C.). That case was also not followed by the Bombay High Court in the case to which I referred. It appears to me that the decision of Farran, C. J. correctly lays down the principle that ought to guide us in dealing with cases of this nature.

This application fails and must be refused with costs. Hearing fee two gold mohurs.

Adami, J.

I agree.