Jhumak Singh and Others vs Mahindra Singh and Others

Ross, J.—This is an appeal by the plaintiffs in a suit for confirmation, or, in the alternative, for recovery of possession of an undivided one-fourth share in an orchard of which the plaintiffs are in possession. It is alleged in the plaint that one Gopal Singh, father of the defendants, had been recorded in respect of this one-fourth share in the previous Record of Rights. A suit was instituted being No. 475 of 1906 in the Court of the Munsif of Chapra for confirmation of the plaintiffs'' possession. That suit was decreed ex parte in the plaintiffs'' favour. The defence with regard to that portion of the plaint was that the defendants had no knowledge of the Suit No. 475 of 1906 and that it was not binding upon them, that the decree was passed after their father died in 1907 without substitution of their names as defendants in his place and that they only came to know of the existence of that suit in 1325. The Courts below have gone into the question of title as if there had been no previous litigation. With regard to the allegation in the written statement in answer to this part of the plaint, the Munsif does not seem to have accepted it. But he has refused to give effect to the decree on the ground that it was never acted upon and that the plaintiffs cannot now rely upon it after such a length of time. He further says that, as the decree was not acted upon, it cannot be taken to be binding upon the defendants. Similarly, the learned Subordinate Judge says that it is significant that the plaintiffs dared not apply for delivery of possession even on obtaining ex parte decree in 1907. That is all that the Subordinate Judge says about this part of the case. It is clear that these views of the Courts below are erroneous. The plaintiffs obtained title by the decree of 1907. The fact that the decree was not put into execution cannot affect the declaration of title made therein.

The decree would only cease to have effect if it was set aside, but the defendants have never taken any steps to have this done. In my opinion, the Courts below were in error in going into the question of title again and the plaintiffs'' suit ought to have been decreed on production of the decree of 1907 when the defendants'' answer to that decree as contained in the written statement was found to be baseless, The result is, that this appeal must be decreed with costs and the suit of the plaintiffs decreed with costs throughout.