1. This is an appeal by the plaintiffs who brought a suit for recovery of mesne profits for the years 1337 to 1339 Pasli with respect to one plot with an area of 1 bigha 2 kathas 7 dhurs. The history of this land shows that there has been litigation for some time between the plaintiff who had mortgaged certain lands including this plot in favour of one Sakaldip and thereafter although he succeeded in a redemption suit, the plaintiff was unable to obtain possession of this plot regarding which mesne profits were claimed.
2. The plaintiff then instituted a suit for a declaration that defendants 1 and 2 whose names were entered in the survey khatian and who resisted in his obtaining recovery of possession were really the creatures of and set up by this Sakaldip and that neither Sakaldip nor defendants 1 and 2 had any right or title to resist the claim of the plaintiff who also alleged that the entry in the survey record was a fraudulent entry at the instance of Sakai, dip, and that instead of defendants 1 and 2 it was this Sakaldip who was in possession all along. This suit which is Title Suit No. 31 of 1927 was dismissed in the trial Court, but the matter went up in appeal and also to this Court when it was remanded to the learned Appellate Court. It appears that the appeal before the lower Court bore No. 367 of 1928 and during the course of the rehearing of the appeal after remand I am informed that the parties entered into a compromise and the matter was referred to certain arbitrators who gave an award which was incorporated in the final decree of the Appellate Court. By that award, Sakaldip was declared to be in wrongful possession. It appears that Sakaldip raised some objections to the award which he withdrew and he was given the costs of those proceedings. Now it is clear that Sakaldip would be bound by the award if he was a party to it and he would also be bound by the decree which was passed ultimately in disposing of Appeal No. 367 of 1928 in a suit to which Sakaldip was a party; but the learned Appellate Court from whose judgment the present appeal is brought before me adopted this procedure that at the time of the hearing of the appeal he sent for the record of Title Appeal No. 367 of 1928 and on a perusal of those papers and also upon a consideration that:
Babu Janak Tewari was not the pleader of defendant 3 in that appeal. The objection was filed by defendant 3 through another pleader Baba Chandra Sekhar Pandey,
3. He proceeded to hold that defendant 3 or Sakaldip was not a party to the arbitration and therefore that there can be no manner of doubt that the decree which was passed in terms of the award is not binding against the appellant, and upon this view he has dismissed the plaintiff's suit. The learned advocate for the appellant contends that the learned Judge ought not to have admitted this additional evidence in appeal and that in any event he should have been given an opportunity to meet the new situation which arose in the mind of the learned Judge by the admission of this new evidence. In my opinion the learned advocate is correct only to this extent that his client should be given an opportunity to satisfy the learned Judge, if he can, that Sakaldip was not bound by the final appellate decree. If Sakaldip is bound by the final appellate decree, it is obvious that his defence to this action is not entertain, able. I therefore set aside the judgment of the learned Subordinate Judge and remand the case to him so that he may re-hear the appeal in the presence of and with notice to Sakaldip, so that he may explain, if he can, that he should not be considered to be a party to the appellate decree. Costs will abide the result.
K.B/R.K
4. Case remanded.