Seelananda Thero V. Rajapakse

1938   Present : Maartensz and Hearne JJ.

SEELANANDA THERO v. RAJAPAKSE

170-D. C. Kandy, 44,651.

Appeal-Failure to make a necessary party, respondent-Irregularity-Application for relief-Civil Procedure Code, s. 770.

Plaintiff, as controlling trustee of a vihare instituted this action to be restored to the possession of a land belonging to the vihare from which, he alleged, the defendant had ousted him. The plaintiff, stating that he had leased the land to others, filed an amended plaint and averred that the lessees were necessary parties. The lessees were added as party plaintiffs.

The defendant claimed that he was entitled to possess the land as the lessee of another priest, who was the real trustee.

In the course of the trial the defendant's lessor was, on the suggestion of the Judge, added as a defendant for the purpose of deciding who was the real trustee. The District Judge held that the plaintiff was the trustee and entered judgment for the plaintiffs.

Held, that the added plaintiffs were necessary parties to the appeal and that the failure to make them respondents to the appeal was a fatal irregularity.

Held further, that relief could not be granted to the appellant under section 770 of the Civil Procedure Code.

THE plaintiff as controlling trustee of Kotabogoda Vihare brought this action to be, restored to possession of a land vested in the vihare. The defendant claimed to be in possession under a lease from another priest who he said was the real trustee. The plaintiff had his lessees of the land joined as plaintiffs. The trial which commenced on January 8, 1935, proceeded on for several days. On January 15, 1936. the learned District Judge intimated to the parties that the lessor of the defendant should be added as a party defendant and that the question of who is the " Adikari Ehikkhu" should be decided. The plaintiff and the added plaintiffs amended their plaint and the trial was resumed. The learned District Judge held that the plaintiff was the Adikari Bhikkhu and entered judgment for the plaintiffs as against the added defendant and defendant. From this order the defendant and the added defendant appealed.

H. V. Perera, K.C. (with him N. E. Weerasooria), for plaintiff, respond-ent.-There is a preliminary objection against this appeal. The added plaintiff has not been made a party to the appeal. The plaintiff claims to be the incumbent of a vihare. The added plaintiff is the lessee under a notarial deed of lease for five years of the lands in dispute The learned District Judge held that the plaintiffs were entitled to the land as against the defendants. If the appeal is allowed the added plaintiffs would be deprived of their benefits under the decree.

No appeal is properly constituted where the granting of the appeal -would prejudice a party not before Court-Ibrahim v. Beebee.[1 (1916) 19 N. L. R. 289.]

F. A. Hayley, K.C. (with him C. V. Ranawake), for defendant and added defendant, appellants.-This is a case in which relief should be granted under section 770 of the Civil Procedure Code, 1889. The principles under which the Court should exercise its descretion are laid down in Ibrahim v. Beebee[1 (1916) 19 N. L. R. 289.].

This case commenced as a possessory action. The plaint was amended in August, 1934, when the plaintiff's two lessees were joined as added plaintiffs. During the course of the trial, the plaintiff was allowed to contest an entirely different action, namely, on an incumbency. The added plaintiffs were there nominally. They were not represented at this stage. A new set of issues were framed and the original issues were disregarded. The whole judgment deals with the incumbency and the learned trial Judge has answered the new issues only.

The decree has given certain rights to the added plaintiffs, but the appeal is from the judgment and not from the decree. The code allows a party to appeal from the " ju

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