P L D 1961 Dacca 698 (PLP)

6. Against the said judgment and decree of the learned Subordinate Judge the plaintiffs came on second appeal before this Court (S. A. No.‑669 of 1950). My learned brother Murshed, J., heard the appeal and remanded the case to the Court of the Subordinate Judge with a direction that the appeal be decided is accordance with law and in consonance with the observation: made in the judgment of the Court which was that the question of limitation, which was not at all dealt with by the learned Subor dinate Judge should be gone into.

7. On demand the appeal was heard on all the points involv ed in the case, and the learned Subordinate Judge reversed the judgment and decree of the learned Munsif and decreed the suit. As against the judgment and decree the present second appeal has been preferred by defendant No: 2 alone.

8. Mr. Pal, the learned Advocate for the appellant, has argued the appeal in very great details ‑ touching all the points involved in the case.

9. Certain facts of the case, which are necessary for the dis posal of this appeal, were as follows : The plaintiffs were tenants under defendant No. I who was a shebait of a family deity. The rent suit was brought by defendant No. 1 on the 15th of April 1941. It was decreed ex parte on the 3rd of June, 1941. Thereafter in rent execution proceedings the holding was sold in auction on the 11th of March 1942, and the plaintiffs landlord auction purchased the holding and obtained possession thereof on the 24th of March 1945.

10. Mr. Pal has raised mainly the following three points for my consideration, firstly, whether there was proper representation of the plaintiffs in the rent suit; in view of the decision of the Judicial Committee of the Privy Council in the case of Mst. Bibi Walian and others v. Banke Behari Pershad Singh and others (30 I A 182). Secondly, he has argued that, even if it is found that there was proper representation of the plaintiffs in the rent suit, then the plaintiffs cannot get a decree in respect of the present suit except ing proof of fraud, and fraud having not been proved in this case, the suit must fail. Thirdly, Mr. Pal has contended that in view of the fact that the landlord auction‑purchaser had .taken possession of the holding and the same was settled with defendant No. 2, who is in possession at the moment, section 42 of the Specific Relief Act is a bar to the plaintiffs' suit in view of the prayer of the plaintiffs in the plaint ; the prayer being that the decree and the execution sale be declared illegal and ineffective on the ground of fraud.

11. Learned Subordinate Judge has held that there was no representation of the plaintiffs as minors in Rent. Suit No. 93 of 1941, as defendant No. 8 in the said rent suit was neither the guardian ad litem appointed for them nor was their natural guardian, the relationship between the defendant No. 8 and the plaintiffs being that of first cousins.

12. On the date of the filing of the plaint, i.e., the 15th of April 1941, the plaintiffs applied for defendant No. 8 in that suit being appointed as guardian of the minor defendants, i.e., the present plaintiffs. The Court recorded the following order : "Plaint filed on 15‑4‑

41. Register. Issue summons upon the defendants and notice upon the minor defendants and proposed guardian. Fix 3‑6‑41 for the appointment of guardian ad litem and for final disposal." On the 3rd of June 1941, the Court made the following order : "Plaintiffs file hazira. Summons served. Defendants are absent on call. This suit and the Rent Suit Nos. 97 of 1941 and 98 of 1941 are taken up together at the parties' instance and for the sake of convenience. P. W. Dinabandhu Nath is examined. Seen R. S. khatian and copy of decree. Court‑fee paid sufficient. Claim proved. Decreed ex-parte with costs." From these Mr. Pal has argued that there was proper representa tion of the minors in the rent suit through defendant No. 8 as their guardian. Mr. Pal argues that there was a notice issued upon the defendant No. 8 as the proposed guardian of the minor defendants. (Plaintiffs heirs) and upon the minor defendants themselves. It is found from the Court's order of the 3rd of June 1941, that summons were duly served. Therefore, Mr. Pal wants me to hold that defendant No. 8 was appointed guardian of the plaintiffs in the said rent suit. Mr. Pal states that, at best, it can be said that a formal order appointing defendant No. 8 as guardian ad litem is wanting, but from the two orders quoted above it can easily be presumed that except for recording the formal order, everything else was duly done for appointment of defendant No. 8 as guardian of the plaintiffs in the said rent suit and summons having been served in due course not only upon the defendant No. 8, the proposed guardian, but also upon the minors, as is evident from the Court's second order, it cannot be said that the minors were not properly represented in the said rent suit.

13. In support of his argument, Mr. Pal has cited the deci sion in the case of Mst. Bibi Walian and others v. Banke Behari Pershad Singh and others. The relevant passage on which Mr. Pal relied is at page

189. In the said case before their Lordships of the Judicial Committee the facts were that in a mortgage suit certain minors were represented by their mother as natural guardian. It was held by the High Court in India that, no guardian ad litem for the minors having been appointed for the minors, the mother not being guardian of their property they were not properly represented in the suit. Their Lordships of the Judicial 'Committee held otherwise. In that case no notices were found to have been served either on the mother of the minors themselves. Even on those facts their Lordships, held as follows : "Their Lordships are unable to concur in the conclusion at which the learned Judges arrived. The present plaintiffs were substantially sued in the former suit, and the alleged fraud has been negatived. It appears to their Lordships that they were effectively represented in that suit by their mother, and with the sanction of the Court ; and for the reasons given by the First Court their Lordship attach no importance to the Certificate of Durga Dutta. There is nothing to suggest that their interests were not duly protected. The only defects which can be pointed out are that no formal order appointing the mother of the now plaintiffs to be their guardian ad litem is shown to have been drawn up ; and it is not definitely shown that any attempt was made to serve the summons in the former suit upon the infants personally, or upon their mother, a pardahnashin lady, before serving it upon Gajadher, the only adult male member and the karta of the family. It has not been shown that the alleged irregularities caused any prejudice to the present plaintiffs, nor indeed could there well be any, since it has been found that the original debt was one for which the present plaintiffs were liable."

14. In the present case notices were served on the proposed guardian, defendant No. 8, and the minors themselves. There is nothing to show that the interests of defendant No. 8 were adverse to those of the minors. The non‑recording of a formal order by the learned Subordinate Judge of appointing defendant No. 8 as the guardian of the minors may, at best, be an irregu larity in the facts and circumstances of the case, and the same is curable under section 99 of the Code of Civil Procedure. There fore, following that dictum of the Judicial Committee of the Privy Council in the case cited above, I hold that there was proper representation of the minors in the rent suit through defendant No. 8 who was also a co‑sharer tenant in the said holding and his interests also had been sold in the said rent execution proceedings.

15. In view of the orders of the learned Subordinate Judge quoted above which is Exh. 4 in the suit, from where it is found that summons were served upon the defendants in the rent suit. The contention of the plaintiffs that there was fraudulent suppres sion of the processes in that rent suit by the landlord cannot be accepted. There is no other evidence of fraud in this case. The plaintiff, therefore, cannot obtain a decree in the present suit, except op proof of fraud in proving which they have signally failed. There is no finding by the learned Subordinate Judge also as regards fraud in this case.

16. The next point of Mr. Pal is the bar of section 42 of the Specific Relief Act. It is not the case of the plaintiffs that they are in possession of the suit properties on the other hand. It is not denied by the plaintiffs that the possession taken by the auction‑purchaser in the rent suit on the 24th of March 1945, or the settlement by him of the holding with defendant No. 2 on the 27th of April 1947, has not been taken or made. In the face of this record that the possession was taken by the auction‑purchaser landlord in the rent suit on the 24th of March 1945, and in the face of Exh. A, which is the document of lease granted in favour of defendant No. 2. by defendant No. 1 showing settlement of the holding with defendant No. 2, which has neither been challeng ed nor controverted in any manner by the plaintiffs, and also there being no finding of the possession being with the plaintiffs by the learned Subordinate Judge, I am of the opinion that section 42 of the Specific Relief Act is a bar to the plaintiffs' suit. The prayer in the plaint, as I have already quoted, was only for a declaration that the rent decree and the rent execution proceedings were illegal and ineffective on ground of fraud. The plaintiffs have not asked for any recovery of possession.

17. It may be said that, in the absence of a finding either way, it cannot be said that defendant No. 1 has taken actual physical possession of the holding on the 24th of March 1945, or that the defendant No 2 has got actual physical possession of the holding on the 27th of April 1947, and, therefore, the question of application of section 42 of the Specific Relief Act may not arise. But it is settled law now that, even in a case where the defendant pleads of his having taken symbolical possession, or that there is evidence of the defendant having taken symbolical possession, the plaintiff must pray for recovery of possession in a suit for decla ration of his title, otherwise his suit will be hit by section 42 of the Specific Relief Act.

18. In the case of Almaz Khatum and others v. Ezahar Miah (8 D L R 82), a Division Bench of this Court has, after citing several decisions of the Calcutta High Court and two decisions of their Lordships of the Judicial Committee of the Privy Council on the point, held that in a case like this the plaintiff must pray for consequential relief for possession. Following this decision of our High Court, which is binding on me, I hold that the plaintiffs, suit is hit by the provisions of section 42 of the Specific Relief Act, and in the absence of any prayer for consequential relief for possession, in the facts and circumstances of the present case, the suit must fail.

19. This appeal is, therefore, allowed, the judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsif are restored. Since there was no representa tion on behalf of the respondents before me, I make no order as to costs. K. B. A. Appeal accepted.