Dawson Miller, C.J:— (after stating the facts, as set out above, proceeded as follows):—
The mere fact that the defendant No. 2 did not enter appearance or contest the suit is not, in my opinion, sufficient to bind the defendant No. 1, the landlord, so as to preclude him either from giving evidence or from contesting the allegation of the plaintiffs, even if such an allegation had been made, that there was a relinquishment in favour of the plaintiffs by the defendant No. 2. When the case came for trial there was absolutely no evidence at all of any such case. The most that could be said or the most that could be inferred from the evidence was that the defendant No. 2 did not actively assert any claim to the property in suit. Indeed the attitude taken up by her was that the parties were all joint and therefore that her only right was that of maintenance Anything in the nature of an actual relinquishment of the right in favour of the plaintiffs could never, in the circumstances, have taken place. Whether or not the learned Subordinate Judge was right in saying that no notice could be taken of the petition, filed on behalf of the defendant No. 2 in the appellate stage of the case, is not a matter which it is necessary for us definitely to determine because looking at that petition the most that could be said in favour of the plaintiffs is that although at the date when the suit was instituted there had been no relinquishment in their favour the defendant No. 2 was during the appellate stage of the case apparently willing to relinquish in their favour but as the judgment of the Court must depend upon the rights of the parties at the date when the suit was instituted it seems to me that the finding of fact of the learned Subordinate Judge in first appeal was amply justified by the evidence before him and it is not open to this Court in second appeal to disturb that finding of fact. The result is that the decision of the learned Judge of this Court will be set aside and the decision of the learned Subordinate Judge will be restored. In the circumstances I think that the appellant is entitled to his costs of this appeal and of the appeal before Ross, J. The order of the Subordinate Judge as to the costs before the Munsif and on first appeal will stand.
I ought to mention that this decision does not determine one way or the other anything as to the right of the landlord to enter into possession of this property. All that is necessary and all that is determined by this decision is that at the date when this suit was instituted the plaintiffs had not made out that they had any right or title to the property. I understand that the property is still under attachment by the Magistrate and the question of who is entitled to possession has yet to be determined. If the plaintiffs in this suit can satisfy the Magistrate when the question of possession again arises that Mussammat Marachi Kuer, who is undoubtedly the person entitled to succeed on the death of her father and mother to this property, has relinquished her rights in favour of the plaintiffs by way of accelerating the succession then the Magistrate will be perfectly justified in handing over possession of the property to the plaintiffs because the result of the judgment in the present case is that Mussammat Marachi Kuer is the person really entitled to the property on the death of her father and mother, and the only reason why the plaintiffs fail is because they have failed to make out that at the date of this suit there had been any relinquishment in their favour.
Mullick, J.:— I agree.
S.A.K
Appeal allowed.