Dhuri Patak vs Timal Singh

Sir Ali Imam, Kt., J.—The plaintiff instituted this suit for the redemption of a holding measuring 1 bigha 2 cottas 17 dhurs of land that was originally the holding of one Bhikari Kuarmi, who had admittedly mortgaged it to defendants Nos. 1 and 2 and also to one Jagdish Singh, who was a defendant in the suit but against whom the plaintiff did not proceed having withdrawn his suit against him. The Munsif decreed the suit but the Subordinate Judge reversed the decision of the Munsif and has dismissed the suit, This appeal is from the decision of the learned Subordinate Judge.

It appears that there had been a previous suit for declaration of title and recovery of possession between the plaintiff and the defendants Nos. 1 and 2 and also Jagdish in respect of the land in suit. The Munsif relied on the decision given in that case and held that the title of the plaintiff to the holding in question was declared in the previous suit and that the decision of that case operated as res judicata in the present one on the question of the plaintiff''s title. The learned Subordinate Judge on the other hand in his judgment has made no reference to the decision in the previous case, nor has he dealt with the question of res judicata taken up in the judgment of the Munsif. He has rested his decision on the question of title on the point that the plaintiff had not acquired the equity of redemption in respect of this holding, because there was no such transfer to him by a registered instrument. The appeal, however, is concluded on the question of the defect of parties. Under Order XXXIV, rule 1. It was incumbent on the plaintiff to implead Jagdish in this case, but it appears that he withdrew his suit against Jagdish, This is cot permissible to him and the lower Appellate Court was right in holding that the Munsif was wrong in passing a decree for redemption in the absence of defendant No. 3. This aspect of the case should have been sufficient for the lower Appellate Court to have given his decision in reversing the judgment and decree of the Munsif. I agree with the lower Appellate Court in the view that the absence of Jagdish from the present case is a sufficient defect to set aside the judgment and the decree given by the Munsif. The point is concluded by a decision of this Court reported as Girwar Narain Mahton v. Musammat Makbulunnissa 36 Ind. Cas. 542; 1 P.L.J. 468. The appeal is, therefore, dismissed with costs.