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1936 DIGILAW 361 (CAL)

Suraj Singh v. Kalidasi Dasi

1936-08-11

body1936
JUDGMENT R.C. Mitter, J. - The Plaintiff, Kalidasi Dassi, and pro forma Defendant No. 2, Krishna Chandra Ghose, were co-sharers of the property in suit as also of a piece of land with structures to the immediate east of the lands in suit. Pro forma Defendant No. 3 is an idol, Sri Sri Jagadhatri Mata represented by forma Defendant No. 2 as its shebait the said pro forma Defendant No. 2 having after 1930 dedicated the property in suit to the idol. It is admitted that the Plaintiff is the owner of eight annas share of the property in sail pro forma Defendant No. 2 was, and pro forma Defendant No. 3 now is, her co-sharer. The Plaintiff in this suit which was filed on the 18th May, 1933 (Title Suit No. 379 of 1933 of the First Court of the Munsif at Bolpur) and out of which this appeal arises has prayed for joint possession after declaration of her title to 8 annas share. The contesting Defendant, Suraj Sing, does not now deny her title, but resists her claim for possession on the ground that he is her tenant in respect of the disputed land. He does not allege that a settlement of the land in suit was made by her to him, but his case is that the settlement made with him by the pro forma Defendant No. 2, who is the uncle of the Plaintiff and her co-sharer, was accepted by the Plaintiff. In support of this case the only material that is placed before the Court is Exhibit A, a certified copy of the plaint of Title Suit No. 606 of 1932 of the First Court of the Munsif at Bolpur filed on the 10th August, 1932. This suit related to a strip of land which is to the east of the lands in suit. It was a suit filed by Krishna Chandra Ghosh against the Defendant Suraj Singh with Kali-da si as a pro forma Defendant. In paragraph 5 of the plaint of that suit Krishna Chandra stated that in 1329 he had granted to the Defendant a lease of 16 annas of the land to the west of the land of that suit (the lands in suit now) at a rental of Rs. 3. In paragraph 5 of the plaint of that suit Krishna Chandra stated that in 1329 he had granted to the Defendant a lease of 16 annas of the land to the west of the land of that suit (the lands in suit now) at a rental of Rs. 3. His case was that the Defendant had encroached upon a portion of his khas land to the east of the said lease-hold premises and be prayed for khas possession of the same. He admitted that this khas land was the property of himself and of Kalidasi who was made a pro forma Defendant. Kalidasi later on was made a co-Plaintiff on her own application. While this suit was pending the present suit was instituted by Kalidasi in respect of the land which was included in the lease mentioned in paragraph 5 of Ex. A. Her case is that she did not give the same in lease and is not bound by the lease granted by her uncle, Krishna Chandra Ghosh. Suit No. 606 of 1932 was decided on the 21st June, 1933, the Court holding that there was no encroachment on khas land by Suraj Singh. The Defendant relies upon paragraph 5 of the plaint, Ex. A. His contention is that Kalidasi must be taken to have adopted by becoming a co-Plaintiff all the statements of that plaint, and the effect is that she adopted the position that the Defendant is her tenant also in respect of the lands in suit. In my judgment when a pro forma Defendant becomes on his own application a co-Plaintiff he adopts all the statements made in the plaint which support the cause of action and those statements only. He does not adopt statements made therein which are not essential to the cause of action as stated in the plaint. The only statements made in the plaint of suit No. 606 of 1932 which were essential to the cause of action in that suit was that Krishna Chandra Ghose and Kalidasi were co-sharers of the lands then in suit, and were in khas possession of the same and the principal Defendant who had no title had dispossessed them within the period of limitation. Paragraph 5 of the plaint was not an essential part of the cause of action, but only indicated that the Defendant was in a favourable position for moving on to the property in suit. Even if the statements made in the said paragraph be held to be essential for supporting the cause of action, it does not hurt Kalidasi because the statement is not that Krishna Chandra Ghose granted the lease also on behalf of Kalidasi but is that he alone granted it. Kalidasi by becoming a co-Plaintiff in the suit must, therefore, be taken to have stated only that her uncle Krishna Chandra Ghose had granted in lease to the Defendant 16 annas of the property now in suit. That is also her case in the present suit, but she says in the present suit that that lease was neither by her nor on her behalf. This she made quite clear by filing the present suit even before that suit was decided. In the present suit it has been found as a fact that her case is true. As the only point urged before me by the Appellant, namely, the effect of paragraph 5 of Ex. A on her rights, is decided against him this appeal must be dismissed with costs.