1984 Supreme(MP) 371

J. S. Varma, J.
Joseph v. Agatha Toppo
S. A. No. 256 of 1978 (J); Decided on 20-7-1984.

Headnote:(1) Civil P.C., 1908-S. 100-new plea-defence not raised to contest the suit-such defence cannot be taken in second appeal.

       (2) Civil P. C., 7908-O.6, R. 14-plaint not signed by plaintiff-defect is of technical nature-may be permitted to sign at appellate stage.

       This is defendants second appeal arising out of the suit for possession of some agricultural land. This appeal has been admitted for hearing only on one question namely whether there is any error in passing the decree for possession of the entire suit property because the vendor, defendant No.1, Joseph, had at least one-third share in the suit property.

       Held: The only contention by the learned counsel for the appellants is that defendant No.1, Joseph, had a share in the suit lands which he inherited from his wife, namely plaintiffs mother, and, therefore, to that extent, the sale made by him could not be held .invalid. There is no dispute that on the death of Polus his widow got one-third share while his daughter the plaintiff, got two third share in his property. Thereafter, on the death of his widow, who had remarried defendant No.1, Joseph, her one-third share in the property was inherited by Joseph, defendant No.1, and the plaintiff who got one third share and two· third share respectively in her property. In other words, on the death of plaintiffs mother, defendant No.1, Joseph, got one third of her one third share in the property left behind by Christina, i. e., one ninth of the whole while the plaintiff. as her daughter, got two-third of that one-third share i.e. two-ninth share in addition to her earlier two-third share in the whole which she had inherited from her father. The result is this that in this property the minor plaintiff got two third plus two-ninth i. e. eight-ninth share of the whole property left behind by Polus while defendant No.1, Joseph, got only one-ninth share i. e. the remainder. It is only to this extent that defendant No.1, Joseph, had the share in this property.

       The further question is of the effect thereof. In the first place, there is no defence taken to contest the suit on the above position of defendant No.1, Joseph, having a share in the suit land. This appears to have been a ground raised for the first time in this appeal. That apart, the case has neither been set up nor decided on the basis of transfer of Josephs share in the suit lands to Matiyas, Polus and Juwel, defendants 2, 3, and 4, respectively. In such a situation it would not be proper to take into account this fact for the purpose of interfering with the decree for possession in the plaintiffs favour whose eight-ninth share in the suit lands is not even disputed. It is sufficient to say that the rights, if any of Matiyas, Polus and Juwel, defendants 2, 3, and 4 respectively as transferees of defendant No.1, Joseph, shall remain unaffected by-this decision as the same have neither been raised nor adjudicated herein.

       The result is this that the only question on which the appeal has been admitted here does not really arise for decision. At any rate, there is no ground for interfering with the decree for possession passed in plaintiffs favour.

       An application (I.A. No 5713 of 1983) dated 15-12-1983 has been filed by the plaintiffd`respondent, Agatha Toppo, for permission to sign and verify the plaint on the ground that by oversight this remained to be done and the plaint was signed and verified by her husband. This is a mere irregularity which is curable at any stage. In view of such a prayer being made by the plaintiff herself, there is no reason to treat this as a defect in the suit. A separate verification to the plaint has been made and filed along with this application. It is, therefore, sufficient to direct that this separate verification shall be treated as part of the plaint and the plaint shall be treated as signed and verified without any further signature of the plaintiff being required on the plaint. The application is allowed and it is directed accordingly. Appeal dismissed.