Ambika Prasad And Anr. vs Jhinak Singh And Anr. on 21 December, 1922
In any case, neither the case of Ambika Prasad v. Jhinak Singh A.I.R. 1923 All.
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1 - 10 of 10 (0.37 seconds)Wajid Ali Khan vs Puran Singh And Ors. on 11 July, 1924
211 nor that of Wajid Ali Khan v. Puran Singh A.I.R. 1925 All. 108, noted above, has any application to the present case. The question that formed the subject-matter of consideration in those cases was, as to whether the omission of the appellants to bring upon the record the legal representatives of one of several plaintiffs in a suit for pre-emption during the pendency of an appeal against the decree in that suit, has or has not the effect of causing an abatement of the appeal as a whole. That question does not arise in the present case. The question that arises for consideration in the present case is as to whether, when the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants, and when only some and not all the plaintiffs or defendants have appealed against the decree of the trial Court, the power vested in an appellate Court by Order 41, Rule 4, Civil P.C., to reverse or vary the decree appealed from in favour of all the plaintiffs or all the defendants, is restricted to cases in which the plaintiffs or defendants who have not appealed are made parties to the appeal, or that power can be exercised by the appellate Court even if the plaintiffs or defendants who have not appealed are not made parties to the appeal.
The Limitation Act, 1963
The Transfer Of Property Act, 1882
Article 142 in Constitution of India [Constitution]
Balaram Pal vs Kanysha (Kangsha) Majhi And Ors. on 15 May, 1919
In the case of Balaram Pal v. Kanysha Majhi [1919] 53 I.C. 548. cited by the learned Counsel for the appellants, two learned Judges of the Calcutta High Court are reported to have observed that
we think that when a plaintiff prefers an appeal in which other plaintiffs are interested, that section (Order 41, Rule 4, Civil P.C.) does not authorize him to proceed with the appeal without making other plaintiffs parties to the appeal.
Section 65 in The Indian Evidence Act, 1872 [Entire Act]
Article 148 in Constitution of India [Constitution]
N.P.R.V.A.R. Subramaniam Chettiar And ... vs A.R.A.R.S. Somasundaram Chettiar ... on 31 August, 1915
This was the view taken in the case of N. Appimma v. S. Venkatasami A.I.R. 1924 Mad. 292. If the plaintiffs had brought a suit for possession of the holding in dispute against the defendants within 12 years from the date of the execution of the mortgage the plaintiffs could have claimed an unconditional decree for possession on the ground that the mortgage being of an occupancy holding was void in law. In that case the defendant could not have set up the mortgage as a bar to the plaintiffs' claim, but by continuing in possession for more than 12 years as mortgagees, the defendants have prescribed a title to the mortgagee right and it is this acquisition of the prescriptive title that has vested in the defendants the rights of a mortgagee. The defendants never took possession of the holding claiming an absolute title to the same and obviously, therefore, the plaintiffs' title to the holding in dispute has not been extinguished. It is, as if it were, that by the continuance of the defendants' possession for more than 12 years as usufructuary mortgagees, there came into existence a legally operative mortgage which the plaintiffs must redeem as a condition precedent to a decree for possession of the holding in dispute. This is what has been held by the lower appellate Court.
N. Varada Pillai vs Jeevarathnammal on 20 June, 1919
12. There is no substance either in the other two points urged by the learned Counsel for the appellants. On the findings of the lower appellate Court, which findings are binding on me in second appeal, it is abundantly clear that the plaintiffs-respondents had, before the mortgage alleged by them, a title to the holding in dispute and were in possession of the same. The defendants entered into possession of that holding because of the unregistered mortgage-deed executed by the plaintiff. The mortgage not having been effected by a registered deed as required by Section 59 of the Transfer of Property Act was invalid, but nevertheless the recitals in the unregistered mortgage deed were admissible in evidence for the purpose of explaining the nature and character of the possession of the defendants over the holding in dispute: vide Varada Pillai v. Jeevarathnammal [1920] 43 Mad. 244. The unregistered mortgage-deed being in possession of the defendants, and they not having produced the same, secondary evidence of its contents could be given in view of the provisions of Section 65 of the Indian Evidence Act. On the basis of such evidence the lower appellate Court has found as a fact, that the plaintiffs mortgaged the holding in dispute to the defendants about 20 years prior to the institution of the suit, and, therefore, it admits of no doubt, that the defendants entered into possession of the holding in dispute as mortgagees and not as trespassers. A mortgage of an occupancy holding is no doubt not permitted by law, but by entering into possession as mortgagees of the holding in dispute, and by continuing in such possession for more than 12 years, the defendants could only prescribe a title for the limited interest of a usufructuary mortgagee.
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