Janardan Missir vs Brijnandan Singh

Das, J.—This application is directed against an order passed by the learned Munsif, 2nd Court, of Darbhanga, under Order XXI, rule 98, of the Code of Civil Procedure, on the 16th of March 1920, It appears that the opposite party instituted a suit and recovered a decree against two persons of the names of Jieneh and Alik Missers in respect of Survey Khesra Plot No. 490. The petitioner, who claims to have an interest in Survey Plot No 496, was not made a party to the litigation. In that suit the defendants in the. written statement specifically raised the point that the suit was bad for non-joinder of parties. On the pleadings of the parties the Court framed an issue as to whether the suit was bad for non-joinder of parties. The first witness examined on behalf of the defendants was Jiwachh Jha, who stated that the petitioner had an interest in the land that was in dispute in that litigation. That evidence was objected to by the plaintiff in that suit, with the result that the Court held that evidence as to the title of the petitioner was irrelevant and he ruled out all evidence relating to the interest possessed by the petitioner in the land in dispute.

As I have stated, the opposite party recovered a decree against the defendants in the action and thereupon they took out execution as against the defendants in the action, and in the execution case the Amin went to the locality to give delivery of possession to the decree-holder, when he was resisted by the petitioner. This took place on the 24th September 1919. It appears that another attempt was made by the decree-holder sometime in December to get actual delivery of possession of the properties. He was again resisted by the petitioner. Thereupon on the 8th December 1919 the opposite party presented their application under Order XXI, rule 97, before the learned Munsif.

Before the learned Munsif the parties went into evidence on the question of possession. The petitioner adduced evidence to show that be claimed in good faith to be in possession of the property on his own account. Undoubtedly that was a matter which the learned Munsif was bound to inquire into. In his order, however, the learned Munsif does not discuss the evidence that was adduced at all. He decides in favour of the opposite party on one consideration and on one consideration alone. The grounds for his decision may be stated in his own words. They are as follows: When they", namely, the plaintiffs in the title suit, the opposite party in the matter before me, "brought the title suit for recovery of possession of the disputed land, the judgment-debtors did not raise that point that the applicant was also interested in it. The case was fought out tooth and nail with the care and attention engendered by bitterness of spirit between the parties. It is said that the omission of the judgment-debtors is not binding upon the opposite party. Certainly not. But it is a circumstance which induces the Court to accept the applicants'' contention that the opposite party had never had any concern with the land and that he has been set up by the judgment debtors to prop a failing cause, I accordingly allow the application with costs." I have no doubt at all in my mind that he based his decision on one fact alone and that is that the judgment-debtors did not raise the point that the applicant was also interested in the property. Now, if there was any foundation for this contention in fact, then I would have no power to interfere with the order u/s 115. But as I have stated already, the judgment-debtors did specifically raise the point in the written statement that the suit was bad for non-joinder of parties. The first witness called by them did say that the petitioner was interested in the property as a co-parcener or as a co-owner with them, and they were prepared to adduce further evidence on the point if only they were permitted to do so. If that be so, can it be said that the Court has acted with jurisdiction in deciding this case in favour of the opposite party on a ground that is wholly unsustainable? In my opinion in exercising his jurisdiction, he acted with material irregularity. He ought to have founded his decision on the evidence that was adduced before him and not on a consideration that had no basis at all. I accordingly allow this application and set aside the order passed by the learned Munsif on the 16th March 1920. The petitioner is entitled to his costs, which I assess at two gold mohurs. The Munsif will now dispose of the application on the materials before him.