Nathu Singh and Others vs Ishar Dayal and Others

Wort, J.—There are three appeals in this case in which the plaintiff landlords are the appellants. They represented that they were cosharers to the extent of a separate 10 annas odd interest. They joined their cosharer landlords as pro forma defendants. The learned Judge in the trial Court gave a decree in favour of the plaintiff landlords in a modified form but Mr. Allanson, the learned District Judge, dismissed their suit, because on the evidence before him he held that it was not a 10 annas interest to which the plaintiffs had a right but a 13 annas interest and therefore their action could not be maintained.

It is important to notice that the plaintiffs, whether their interest was 10 annas or 13 annas, alleged a separate collection and only in those circumstances could the action have been maintained in the form in which it was brought, that is to say, had there been no separate collection it would have been necessary to sue for the 16 annas, interest and divide the result between themselves and their cosharer landlords who as I have said were pro forma defendants. But as it is a separate collection which they alleged they were entitled to sue for their share provided they sued for that share not more and not less. It was also necessary to join as they did their cosharer landlords as pro forma defendants.

Now I come quite clearly to the view that Mr. Allanson was wrong in looking at Ex. 3 which was a plaint and another exhibit which was a deposition in a former suit. Judges of Subordinate Courts seem to disregard entirely or not to understand, which it is I do not know, the law of evidence. No Court is entitled to look a document of the kind of these two exhibits and say that a fact is proved or not proved. The law of evidence in this country which follows in this respect the law of England provides a method of procedure in dealing with documents of this kind. In both cases they were used to contradict the plain tiffs'' present case and the Evidence Act provides that this statement by which the contradiction is sought to be proved must be put to the witness and it quite clearly appears that in this case it was not.

However as Mr. S.N. Roy points out, there was other evidence in this case, the oral evidence of the defendants on the point, and therefore I am precluded from setting aside the judgment of the Court below on the point to which I have somewhat elaborately made reference. That being so, and as the learned District Judge has come to the conclusion that as a fact the plaintiffs were entitled to the 13 annas interest it is quite clear that his decision was right and must be affirmed.

It becomes in the circumstances unnecessary to decide the question which was argued in Appeal No. 558. But I propose to make a brief reference to it. In that case amongst other plaintiffs and therefore appellants in this Court were three brothers appellants 6, 7 and 8. They were members of a joint Hindu family and during the pendency of the appeal in this Court Isri, who was appellant 7, died. It is clear from the order sheet of this Court that in the events which happened his legal representatives were not brought on the record and therefore the appeal so far as his interest was concerned quite clearly abated. The question which was argued was whether the whole appeal, that is Appeal No. 558, abated in consequence.

It was contended by the learned advocate on behalf of the appellants that it did not abate as Isri''s brothers, that is appellants 6 and 8 were on the record, and as they were members of a joint Hindu family and as Isri''s interest survived to his brothers, he was represented. Two questions of course arose in the determination of this matter. The first was to apply the test laid down by Order 22, Rule 1 which is taken from the rules of the Court in England, the test being that if the right to sue survives, the suit or appeal would not abate.

The only answer to that question, applying that test, is that the right to sue did not survive in the remaining appellants, that is to say, had Isri been alive these other appellants could not have brought a suit without joining Isri. Order 22, Rules 3 and 4, provide a case of this kind, and it was said, as I have stated, that as the two brothers were on the record and they represented the deceased''s interest, it was unnecessary to bring the heirs or legal representatives of Isri on the record. This question is governed by authority in Basist Narayan Singh and Others Vs. Modnath Das and Others, .

It was there decided that although the members of the joint Hindu family were already on the record and did represent in a sense the interest of the deceased member of the same family, yet it was necessary to bring them on the record in the capacity of representatives of the deceased. That would dispose of the point and in any event therefore apart from the opinion which I have already expressed as to the merits of the case, the Appeal No. 558 would have abated in any circumstances. In these circumstances the appeals must be dismissed with costs.