1. The plaintiff alleges that one Mangba died without male issue leaving three daughters, namely, the plaintiff, the defendant No. 24 and Radhabai, deceased, and that after his death his widow Parvati being entitled to his property went on enjoying it and died on the 30th July 1900.
2. These recitals are admittedly inaccurate, the fact being that Mangba left two sons, Subraya and Pundlik. Pundlik was adopted into another family and the estate of Mangba descended to Subraya. Subraya was succeeded by his widow Mathura and after her death by his mother Parvati, his reversionary heiresses being his sisters, the plaintiff and the defendant No. 24.
3. The defendants Nos. 1--23 claim to be alienees by sale, mortgage or lease from Parvati. The plaintiff claims to recover the estate from the defendants Nos. 1--23 and to partition it between herself and, defendant No. 25 as assignee of the interest of her sister (defendant No. 24).
4. In the first Court fifteen issues were raised and evidence was taken upon the whole case but the Subordinate Judge only recorded findings on three issues namely:
6. Is the suit in time?
7. Is the suit barred for misjoinder of parties or causes of action
15. Is the plaintiff entitled to any relief?
5. His finding on issues 6 and 15 was in the negative and on issue 7 in the affirmative and he dismissed the suit. An appeal was presented to the District Judge but he summarily dismissed it under Section 551 of the Civil Procedure Code, 1882--holding that Parvati had acquired a title by adverse possession prior to the date of her alienations and that the suit was bad for misjoinder of parties and causes of action. The plaintiff in second appeal to this Court contends, first, that the suit is not bad for misjoinder and secondly, that no issue of adverse possession was fairly raised that if such a question was open to the lower Courts the judgment of the lower Appellate Court is bad in law.
6. We will first deal with the question of misjoinder. Section 28 of the Civil Procedure Code provides that all parties may be joined as defendants against whom the right to any relief is alleged to exist whether jointly, severally or in the alternative in respect of the same matter.'
7. The words 'in respect of the same matter' are more general than the words in respect of the same action' in the corresponding Section 26 relating to joinder of plaintiffs. But for the purposes of this suit the difference is we think not material. The course of decisions in the different High Courts as to the propriety of joining in one suit for possession alienees of different portions of the same estate claiming under the same alienor has not been uniform but according to the present state of authority the High Courts of Calcutta, Madras and Allahabad would permit such a suit to proceed. Bee Sami Chetti v. Amani Achy 7 M.H.C.R. 260; Vasudev Shambhog v. Kuleadi Narnapai 7 M.H.C.R. 290; Mahomed v. Krishnan 11 M. 106; Ishan Chunder Hazra v. Rameswar Mondol 24C. 831; Nandokumar Nasker v. Banomali Gayan 29 C. 871; Parvati Kunwar v. Mahomed Fatima 29A. 267.
8. The lower Courts and the respondents in this appeal have relied upon Kachar Bhoj Vaija v. Bai Rathore 7 B. 289, but that was not a suit for possession. As pointed out in Gledhill v. Hunter 14 Ch. D, 492 an action for the recovery of land, or as it is called in the Civil procedure Code, Section 44, 'a suit for the recovery of immoveable property', is possessory and of a different nature to a suit for the establishment of title not claiming possession, although a claim for declaration of title as part of the machinery for establishing the right to possession might be joined with a suit for recovery of land. The claim for a declaration of title and the claim for possession are not the cause of action: they are only the statement of full length of what the cause of action really is, namely, to recover the land.'
9. In our opinion the law applicable to the present case is correctly stated in the two Calcutta cases we have above referred to. In the latter of the two it is said: 'the cause of action of a plaintiff suing in ejectment cannot so far as we can perceive be affected by the title under which the defendant professes to hold possession. It matters not to the plaintiff how the defendant may explain the fact that he is in possession or seeks to defend his possession. What concerns the plaintiff is that another is wrongfully in possession of what belongs to him and that fact gives him his cause of action. If this be so where there is but one person in possession can there be a difference when the land is in the possession of more than one? We think not. It appears to us so far as the plaintiff's cause of action is concerned that it is a matter of indifference to him upon what grounds the different persons in possession may seek to justify the wrongful detention of what is his. What he is entitled to claim is the recovery of possession of his land as a whole and not in fragments.'
10. In the present case the land, in suit is situated in several different villages but, provided the venue for the trial is the same, the right of the plaintiff to have his claim tried in one suit is the same as if the different holdings were all in the same village. It was never any bar to a suit in ejectment that many persons were in possession. The only possible objections were on the ground of inconvenience. When the tenements claimed and the tenants thereof are numerous it is frequently advisable to bring two or more distinct ejectments rather than one action against all of them for the whole of the property. The exercise of a sound discretion and judgment on this point may sometimes save much trouble.' See Cole on Ejectment, p.76. In the lower Court any difficulties arising from variety of defences can be cured by the successive trial of the issues separately affecting different defendants. Compare the rules of the Supreme Court in England, O. XII, r. 28.
11. As regards the question of adverse possession we think it should not have been discussed at all upon the sixth issue. It is a question of title requiring a specific issue. The discussion of the question in the judgment of the first Court was very unsatisfactory probably for want of evidence resulting from the absence of a definite issue. The Subordinate Judge mentions Exhibits 284, 300 and 310 as justifying his conclusions. As regards Exhibit 284 the record of the Court in Canarese differs from the Judge's note. The Canarese says that after Mangba's death the vahivat was carried on by Parvati till her death. This is quite consistent with management as guardian or as senior member of the family without any adverse possession. Exhibit 300 is a rent note passed in 1858 to Parvati by a yearly (chalgeni) tenant. Exhibit 310 is an entry in the revenue records of payment to Parvati in 1865 for land taken up for a Railway. These Exhibits are quite consistent with a management of Parvati on behalf of junior members of the family. In the lower Appellate Court the point was still more inadequately dealt with. The District Judge assumes that Parvati was guardian of the owners at the dates of the alienations effected by her. If this was so the presumption would be that she effected the alienations honestly as guardian and not dishonestly in breach of her trust. The Subordinate Judge had held, and we assume that in dismissing the appeal summarily the District Judge adopted the finding of the first Court, that Subraya had died in 1853 or 1854, i.e. prior to any of the alienations. But alienations by the guardian during the lifetime of Subraya's widow who was the owner of only a limited estate would not prejudice the reversioners unless justified by necessity.
12. We set aside the decree and remand the case for retrial. The lower Court should not fail to raise a specific issue as to adverse possession and should consider whether any inconvenience will result from trying the suit against all the defendants at once or whether it should direct the successive trial of the issues separately affecting different defendants. Following the English practice interlocutory judgments may if the plaintiff succeeds be given against the different defendants as their cases are disposed of, final judgment for possession of the whole property being reserved till the conclusion of the trial of the whole case. Costs to be costs in the cause.