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Raja Himanshudhar Singh Vs. Ram Hitkari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 346 of 1957
Judge
Reported inAIR1963All496
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rules 3 and 9 - Order 22, Rules 4 and 9; Uttar Pradesh Zamindari Abolition and Land Reforms Act - Sections 209
AppellantRaja Himanshudhar Singh
RespondentRam Hitkari and ors.
Appellant AdvocateM.K. Seth, Adv.
Respondent AdvocateB.P. Misra, Adv.
Excerpt:
civil - abatement - order 22 rules 4 and 9 and order 1 rules 3 and 9 of code of civil procedure, 1908 - suit filed for ejectment of trespassers a and b - a died before passing of decree - legal representative not brought on record - suit get dismissed - appeal filed by the plaintiff against both the defendants - decree against one co-trespasser is certainly an effective decree as between him and plaintiff and can be executed as against him - appeal can be proceeded against the one of the alive defendant. - - a suit may fail against the other defendants on other grounds but it cannot abate as against them. if under a statute a suit cannot be filed without joining the deceased defendant, it will fail not on the ground that that it abates but on the ground that it is not maintainable under.....desai, c.j.1. this appeal arising out of dismissal of the appellant's suit for possession over a land came up for hearing before our brother jagdish sahas and he has referred it to a larger bench on account of conflict among decisions of this court on the question arising in it, namely, whether a suit for possession can be decreed against some of the trespassers when the others are not before the court. the short facts of this case are as follows:2. the appellant filed a suit against six personsincluding ayodhya under section 209 of the zamindari abolition and land reforms act for their ejectment from agrove alleging that he was the grove-holder of the plotin dispute, that the defendants threatened to take possession of it without any right or title, that proceedings undersection 145, cr......
Judgment:

Desai, C.J.

1. This appeal arising out of dismissal of the appellant's suit for possession over a land came up for hearing before our brother Jagdish Sahas and he has referred it to a larger bench on account of conflict among decisions of this Court on the question arising in it, namely, whether a suit for possession can be decreed against some of the trespassers when the others are not before the Court. The short facts of this case are as follows:

2. The appellant filed a suit against six personsincluding Ayodhya under Section 209 of the Zamindari Abolition and Land Reforms Act for their ejectment from agrove alleging that he was the grove-holder of the plotin dispute, that the defendants threatened to take possession of it without any right or title, that proceedings underSection 145, Cr. P. C. that arose out of the dispute ended in their favour and that possession over the plot wasdelivered to them on 18-7-1953. There was nothing alleged about the defendants having acted jointly or in concert or having a common cause against the appellant. Thesuit was contested by three of the defendants and theother three defendants including Ayodhya remained ex parte,Four of the defendants including Ayodhya were brothersand their, relationship or connection with the remaining twodefendants is not known. The contesting defendants pleaded that the grove was planted by their ancestors and hadbeen in their possession since long and that the plaintiff-appellant was never in possession and had no title overIt IAyodhya defendant died on 23-5-1956 during the pendency of the suit and on 25-5-1956 the suit was dismissedby the Trial Court on merits without Ayodhya's legal representatives having been brought on the record. Theappellant filed an appeal on 26-7-1956 impleading all thesix defendants: presumably he was not aware of the deathof Ayodhya. When he became aware of it he applied on1-10-1956 for his legal representatives being brought onthe record. On 17-11-1956 he withdrew the application;it is not Known why. On 23-2-1957 the appellate Courtdismissed the whole appeal as incompetent. Then he filedthis second appeal. The question before us is whether thelower Appellate Court was right in saying that the firstappeal was incompetent. It is not in dispute that it abated as against Ayodhya; the question is whether as againstthe other respondents it was incompetent on account ofits abatement as against Ayodhya.

3. Though there are discordant notes struck by some Judges it cannot be disputed that the appeal did not abate as against the other defendants. Abatement of an appeal is governed by the provisions regarding abatement of suits in Order 22, C. P. C. Rule 4 of Order 22 deals with the death of one defendant out of two or more when the right to sue does not survive against the surviving defendants; if no application is made within the prescribed time for bringing on the record the legal representatives of the deceased defendant 'the suit shall abate as against the deceased defendant' and cannot abate against the other defendants. A suit may fail against the other defendants on other grounds but it cannot abate as against them. If under a statute a suit cannot be filed without joining the deceased defendant, it will fail not on the ground that that it abates but on the ground that it is not maintainable under the law unless he or his successors-in-interest is impleaded. It has been made clear in Shibban v. Allah Mehar : AIR1934All716 , Mt. Ram Dei v. Jurawan Missi : AIR1930All762 , Mohan Singh v. Moti Singh, 1960 All LJ 932 and Shivamrathi Kunwar v. Dharam Deo Singh : AIR1951All428 , that a smt abates only against the deceased defendant and cannot abate against surviving defendants. In Roopchand v. Mithalal , Waris Khan v. Ahmadulla Khan, AIR 1952 Nag 238, Aravinda Sarma v. Payodhar Barua, 53 Cal WN 606 : (AIR 1950 Assam 53), Hakir Mahamed v. Abdul Majid : AIR1953Cal588 , Malobi v. Gaus Mohamad, , Reghu Sutar v. Nrusingha : AIR1959Ori148 and Chhotalal v. Fakirji, AIR 1954 Nag 279, it was said that the whole suit or appeal abates; this is a clearly untenable view.

4. The effect of a suit abating against one out of two or more defendants is exactly the same as if he had not been impleaded as a defendant at all. If a suit is instituted against A and B and B dies and the suit abates as against him, the suit will proceed against A as if it had been instituted against him alone. In other words, the suit against A will be governed by the provisions of Order 1. Rule 9 of Order 1 is to the effect that no suit shall be defeated by reason of non-joinder of parties and that the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. So the Court will be bound to deal with the suit as against A so far as regards the rights and interests of the plaintiff and A. If there is a statutory provision which lays down that a suit wilt not be maintainable against A without B being impleaded, the suit will fail as against A by virtue of the statutory provision. There are statutory provisions which require particular persons to be impleaded as defendants, such as those contained in Order 34, Rule 1, C. P. C., Sections 185, 246 (3) and 247 (1), U. P. Tenancy Act, etc.

The provisions of Rules 1 and 3 of Order 1 are only permissive, they lay down not who must be parties but who may be parties. A person who wants a relief must him-self be a plaintiff; no one can get a relief in a suit filed by another. Rule 1 lays down who may be joined as plaintiffs; persons in whom any right to relief in respect of or arising out of the same act or transaction is alleged to exist, where if they brought separate suits and common question of law or fact would arise, may be joined as plaintiffs in one suit. It is clear from this rule that they may sue either separately or jointly. Similarly Rule 3 lays down who may be joined as defendants; all persons against whom any right to relief in respect of or arising out of the same act is alleged to exist, whether jointly, severally, or in the alternative, where if separate suits were brought against them any common question of law or fact would arise, may be joined as defendants in one suit. It is equally clear that they may be sued either separately - one suit against each of them - or jointly in one suit. The absence of a provision in Order 1 making it obligatory upon a plaintiff to join another person as a co-plaintiff with him in the suit or to join another person as a co-defendant in the suit is consistent with Rule 9.

Rule 9 is subject to statutory provisions requiring a plaintiff to join a certain person as a co-plaintiff or as a co-defendant such as those mentioned above. Except in cases in which a statutory provision requires a particular person to be impleaded as a co-plaintiff or as a co-defendant, the Court is required to deal in every suit with the matter in controversy so far as regards the rights aid interests of the parties actually before it, i.e. if the rights and interests of the parties actually before it are such as can be dealt with by it in the absence of other persons who also may be interested in the matter in controversy. It depends upon the nature of the rights and interests of the parties and other persons interested in the matter in controversy. Every suit must be based upon a cause of action and the criterion for deciding whether a Court can adjudicate upon the rights and interests of the parties actually before it is to see whether the cause of action accruing in favour of the plaintiff and against the defendant is severable from a cause of action in favour of another person against the defendant or in favour of the plaintiff against another person.

if a plaintiff has a cause of action against A and B arising out of an act done by them jointly, he can sue only A or only B, if it can be spilt up into two causes of action, one against A and the other against B. If the liabilities of A and B, which give rise to the cause of action, are several even if also joint, the cause of action is severable into two and the plaintiff can sue A on the cause of action to be assigned to him, unless there is a statutory provision requiring him to sue B also. If the cause of action is joint and not several, it cannot be split up and the plaintiff cannot sue A alone. If a plaintiff has one cause of action against A and another against B which is quite distinct and independent of the former there are really two causes of action to start with and the plaintiff can sue either of them on the appropriate cause of action, though it is open to him by virtue of Order 1, Rule 3 to sue both on the two causes of action.

A cause of action arising in favour of one partner for dissolution of the partnership and accounts is a joint and unseveral cause of action against all the remaining partners; the whole partnership is to be dissolved affecting the rights and interests of all the partners. It is impossible to conceive of a partnership as having been dissolved as between A and B and as continuing as between A and C; so if A wants to sue for dissolution and accounts he must sue both B and C. Similarly, a cause of action accruing in favour of a co-owner for partition of the joint property is a joint and unseveral cause of action against the other co-owners and he must sue all of them. There is no cause of action for dissolution of partnership or partition accruing in favour of one partner or co-owner against only some of the partners or co-owners and, therefore, no suit can be filed by a partner or co-owner against only some of the partners or co-owners. If such a suit is filed it will fail on the ground that it is not possible for the Court to deal with the dissolution or partition only so far as regards the rights and interest of the parties actually before it as it cannot be severed from the rights and interests of the absentee partners or co-owners. If a cause of action in favour of the plaintiff can be severed from a cause of action in favour of another person, or if a cause of action against the defendant can be severed from 3 cause of action against another person, the Court can deal with the fights and interests of the plaintiff and the defendant before it and, therefore, the suit by the plaintiff alone or against the defendant alone will proceed. A suit against A alone will fail on the ground of B not being impleaded as a defendant only if there is hut one cause of action against A and B, i.e. joint and not several.

5. We are governed by the provisions of Order 1 and not by the common law. The common law rule is that all persons materially interested in the subject of the suit ought to be made parties, either as plaintiffs or as defendants, in order to prevent multiplicity of suits and in order that there may be a complete and final decree between all parties interested; see Mechanics Bank of Alexandria v. Seton, (1828) 7 Law Ed 152, Equity Courts divided parties into three classes, (1) of formal parties e.g. persons who have such relations to the matter in controversy, merely formal or otherwise, that while they may be called proper parties, the Court will take no account of their not being impleaded, (2) necessary parties, e. g. of persons whose relations to the suit are such, that if their interest and their absence are formally brought to the attention of the Court, it will require them to be made parties if within its jurisdiction, before deciding the case, and if this cannot be done, it will proceed to administer such relief as may be in its power between the parties before it, (3) of indispensable parties, e.g. persons who not only have an interest in the controversy but have an interest of such a nature that a final decree cannot be made without either affecting it or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience; see Shields v. Barrow, (1855) 15 Law Ed 158 and Barney v. Baltimore, (1867) 18 Law Ed 825. Miller, J. said in the latter case that the common law rule that where one of the several joint obligors in a contract is sued alone he can plead the non-joinder of the obligors in abatement has been altered statutory and that now a plaintiff can prosecute his suit against any one of such joint obligors.

In Boson v. Sandford, [1689) 91 ER 382, a suit for a breach of a contract was dismissed because all obligors under the contract were not made defendants; the Court distinguished between a suit ex delicto and a suit ex quasi-contractu. This case was commented upon by Lord Blackburn in Kendall v. Hamilton, (1879) 4 AC 504 at p. 543, where he pointed out that a suit against one joint contractor cannot be dismissed on the ground that the other joint contractor was not joined as a co-defendant. If out of two joint contractors one alone sues without making the other a party his suit would fail on the ground that on proof of the contract with two persons the suit of one of them could not succeed. It was thought to be a variance between the cause of action and the proof; the cause of action was a contract with the suing contractor whereas the proof was that the contract was a joint one with him and the other person. While a suit of one contractor could fail on this ground a suit against one contractor could not fail and the Court could implead the other contractor as a defendant.

In Mitchell v. Tarbutt, (1794) 2 R. R. 684. Lord Kenyon, C. J., distinguished the case of Boson, (1689) 91 ER 382 and observed at page 687 :

'..... . where it arises ex delicto, the plaintiff may sue all or any of the parties, upon each of whom individually a separate trespass attaches. ....... this being an action ex delicto, the trespass is several.'

Lawrence J. agreeing said that an action founded on a tort 'might be either joint or several, at the election of the party, as in trespass'. So even according to the common law a suit can be filed against one trespasser even though there is another joint trespasser, the liability of two joint trespassers is several. The following observations of Marshall C. J. in Vettier v. Hinde, (1834) 8 Law Ed 675 at p. 679, lay down a principle which can guide us in acting under Order 1, Rule 9, C. P. C.

'if the defendants have distinct interests, so that substantial justice can be done by decreeing for or against one or more of them, over whom the Court has jurisdiction, without affecting the interests of the others, its jurisdiction may be exercised as to them ...,,.'............. It is the settled practice in the Courts of the United States, if the case can be decided on its merits between those who are regularly before them, to decree as between them. Although other persons, not within their jurisdiction, may be collaterally or incidentally concerned, who must have been made parties had they been amenable to its process, this circumstance shall not expel other suitors who have a constitutional and legal right to submit their case to a Court of the United States, provided the decree may be made without affecting those interests.'

6. The cause of action that accrues in favour of a plaintiff when A and B jointly dispossess him unlawfully is a joint and several cause of action.

7. There is no statutory provision requiring that if A and B jointly dispossess a plaintiff he must sue both or not sue at all; therefore, a suit against A cannot fail on the ground that B is not sued. The cause of action as against A is severable from that against B and it is open to the plaintiff to sue the former alone. If the plaintiff succeeds in the suit against A he will be entitled to a decree for possession against him on his proving that he was entitled to possession and that A had taken wrongful possession within the period of limitation. A cannot escape the liability of a decree by pleading that B had joined him in dispossessing the plaintiff; that is no valid defence to the suit because no provision of the law makes the plaintiff's right to a decree against A dependent upon his getting a decree against B or even upon his impleading him as a co-defendant. It may be that if a decree is passed against A and is put into execution B will be in a position to resist the execution on the ground that he was in possession in his own right and was not bound by the decree passed in the suit to which he was not a party and so the plaintiff will not be able to get possession vide Order 21, Rules 99 to 101, C. P. C., but that is not a matter to be considered by the Court before passing the decree against A. Whether a decree should be passed against A will depend solely upon the rights and liabilities of the plaintiff and A, and since the rights and liabilities of A do not depend upon the rights and liabilities of B, he will be ordered to be ejected if the plaintiff establishes his case. The Court should not assume that B, who also is a trespasser like A and has no right to be in possession, will resist the plaintiff's being put into possession in execution of the decree and, if he does not, the plaintiff will get possession. There is thus no certainty that the plaintiff will not get possession even if he obtains a decree against A alone. No question of two inconsistent decrees arises when a suit is brought against trespasser A leaving out the other trespasser B. B., who is not sued, cannot say that there is a decree in his favour which would be inconsistent with a decree to be passed in plaintiff's favour against A. In such a case there is only one decree namely the one passed against A and it can always be. executed, there being no other decree which might be inconsistent with it. The position may change when the question arises in an appeal.

8. When a plaintiff's suit for possession against trespassers A and B is dismissed by the Trial Court and the appeal abates as against B, the fate of the appeal as against A is not exactly similar to the fate of the suit if it had abated against B. The reason is that B is armed with a decree in his favour, it being that he has a right to maintain his possession as against the plaintiff. Now it may be argued that if the appeal is decreed as against A there will arise two inconsistent decrees, one entitling the plaintiff to be in possession as against A and the other entitling B to remain in possession as against the plaintiff. The plaintiff and B cannot both be in possession at the same time and, if the plaintiff puts his decree into execution as against A, he may be resisted by 8 on the strength of the decree passed in his favour. But in spite of this difference between the question arising in a suit and the question arising in an appeal I do not consider that the appeal against A should fail. It cannot, and should not, fail if the plaintiff is found to be entitled to possession. If the plaintiff is entitled to a decree it would be on the strength of his own title. If B has a right to remain in possession as against him it would mean that the plaintiff has no title because both he and B cannot have rights to be in possession of the same property. If B has a right to be in possession the plaintiff will not have it and his appeal will fail even against A on that very ground- He will be found to have a right as against A only if B has no right to be in possession. His appeal cannot be dismissed as against A on the ground of B's decree unless it is held that in view of B's decree he has no right to be in possession at all. This question will have to be decided in the appeal and the absence of B as a party will not prevent its being decided. B will not be bound by the decision given behind his back, but the decision can be given against A. A cannot resist the passing of a decree against him by contending that the reasons for passing it would conflict with the reasons for refusing to pass it against B. If an inconsistency between a decree existing and a decree asked for is no ground for refusing the decree asked for, inconsistency between the reasons would still less be a ground for refusing to pass the decree asked for. A decree cannot be refused on the ground that the reasons on which it is based will conflict with the reasons on which an existing decree was passed.

9. If a plaintiff claims that he is the owner of a property in the wrongful possession of A, he can maintain a suit for A's ejectment notwithstanding the fact that another person, say B, also claims the same right as against A. B is not a necessary party in the plaintiff's suit, though he may be impleaded as a proper party, and the plaintiff's suit cannot fail on the ground that he is not a party to it. B can maintain another suit of his own as against A without making the plaintiff a party to it. Either can get a decree against A on proving his case; there is nothing in law to prevent the suits of the plaintiff and B both being decreed. Normally this will not happen, if both are tried by the same Court simultaneously, but it is possible if they are tried by different Courts or at different times. If B's suit is decreed first, that decree will not bind the plaintiff and will not prevent his getting a decree on establishing his own title against A. B's decree will be an irrelevant matter in the plaintiff's suit except perhaps to dispute his title or right to possession. When the plaintiff and B both get decrees for possession against A, of course both will not be put in possession in execution of their respective decrees, because it is impossible for both to be in possession simultaneously. If B is put in possession in execution of his decree first and the plaintiff later applies for execution of his decree, the rival claims to possession of B and the plaintiff will be decided by the executing Court; Order 21, Rules 99 to 101 make ample provision for resolving this conflict between them. The very existence of this provision means that such a conflict can arise, i.e. that such decrees can be passed. When inconsistent and mutually exclusive decrees are passed, it will be for the executing Court to resolve the conflict between them; the Courts passing them should not be concerned with the conflict and should not usurp the jurisdiction of the executing Court.

10. I have not considered the question of 'res judicata' or the effect of a decree which can operate as 'res judicata' in another suit. In this appeal the problem of 'res judicata' does not arise at all and I have considered cases in which there is no question of 'res judicata'.

11. The facts in : AIR1934All716 , were exactly similar to those of the instant case and Sulaiman, C. J. and Mukerji, J., reversing the judgment of Young, J,, held that the appeal could be decreed against the surviving defendant. They observed that a decree for possession against A is not inconsistent with the dismissal of the suit against B. They pointed out that had the suit been instituted against A only it could not have been dismissed on the ground that B had not been impleaded; obviously they had the provisions of Order 1, Rule 9 in mind.

In Manak Chand v. Khubi : AIR1928All555 , it was held that a suit can be brought against one cut of two trespassers for damages for wrongful occupation. This case may, however, be distinguished on the ground that it was not for possession and that damages can be split up while possession cannot be. In Ram Dei's case : AIR1930All762 , Sen and Niamat Ullah, JJ. relied upon the provisions of Order. I, Rule 9 and held that the Court is bound to pass a decree in the plaintiff's suit against A in the light of the rights and liabilities of the plaintiff and A. They observed that when the suit abates against B and is decreed against A there do not come into existence two decrees, the abatement of the suit not being a decree. Their observation that when A and B have defined and distinct interests in the property the abatement of the suit against B will not affect the suit against A and that the suit to be decreed against A will be in respect of a property belonging to A and not with respect to property belonging to B, may suggest a distinction between that case and the instant case. When two distinct properties, one belonging to A and the other belonging to B, are the subject matter of a suit for possession, it is really a case of two suits in respect of two properties and not one suit against two persons in respect of the same property.

In Rani Dhandei Kuer v. Fatma Zuhra : AIR1939All698 , Thom, C. J. and Ganga Nath, J. decided that when an appeal arising out of a suit for injunction arid damages abates against B it cannot proceed against A and must be dismissed as incompetent. The learned Judges did not refer to the cases of Shibban : AIR1934All716 and Ram Dei : AIR1930All762 . There A and B were alleged to have done the act jointly, which is not the case in the instant appeal. The learned Judges said that even if the plaintiff could compel A to close down the market he could not compel B's legal representatives to do so and that if he got a decree against A it would not be capable of being executed. With great respect to the learned Judges I do not see any difficulty in the plaintiff's compelling A to close down the market even if B's legal representatives are left free to run it. It is not impossible for A to refrain from doing the act even if B is left free to do it and, if the plaintiff has a right to require A to desist from doing the act, there is no reason why the Court should not give him a decree for injunction against A, even it the same act can be done by B's legal representatives. It is not easy to understand what the learned Judges meant by saying that the appeal against A was 'imperfect'; the Civil Procedure Code does not explain what is an 'imperfect' appeal and how it stands in the eye of law.

In Badri Narain v. E. I. Rly. Co., AIR 1927 Pat 23 and Muniruddin v. Mt. Raisulnisa, AIR 1932 Oudh 288, it was held that an appeal in which some of the persons in whose favour a decree had been passed were not impleaded as respondents was incompetent and that the appellate Court could not bring them on record under Order 41, Rule 20.

In Bishunath Prasad v. Sarju Saran Tewari, 1941 Oudh WN 1115 : (AIR 1942 Oudh 16), a landlord debtor's failure to implead some of the creditors in an appeal under Section 45 of the Encumbered Estates Act was held to be a fatal defect because it was not possible to pass 'an effective decree' in the case due to their absence.

In Sheoram v. Prem Shanker : AIR1954All436 , Beg and Randhir Singh, JJ., observed that the decision of an appeal should not result in two inconsistent decrees. They did not refer to the case of Shibban : AIR1934All716 . Their observation that the whole appeal can abate on account of the death of B is not a correct statement of the law. It was a case in which a decree was obtained against A and B and during the pendency of the appeal against them B died and his legal representatives were not brought on the record and the appeal was held to have abated as against both. With great respect I disagree. The shares of A and B were specified and there is no reason why the appeal could not proceed against A's share. The principle laid down by a Full Bench of this Court in Baij Nath v. Ram Bharose AIR 1953 All 563 (FB), that when an appeal is filed by A and B from a decree passed in the plaintiffs favour and B dies and his appeal abates, A's appeal can go on only if A's rights and interests were not joint with those of B and if a decree to be passed in A's favour in the appeal will not result in two inconsistent and contradictory decrees. This decision gives rise to question when rights and interests of A and B can be said to be not joint and indivisible and when can two decrees be said to be inconsistent and contradictory with each other. I do not see any difficulty in absolving A from the liability under a decree passed jointly against him and B even if B remains liable under it. If the decree could be passed in favour of B alone, it stands to reason that A can be freed from the liability under the decree on appeal. There is no provision in the Code of Civil Procedure which makes the right of appeal of A dependant upon B's joining him in the appeal. If a decree is passed against A and B, either of them can appeal from it and there is no provision In the Code which makes it obligatory upon both to join in the appeal. In any case that is not the matter before us.

In Smt. Moti Kuer v. Bindhachal Pande : AIR1960All379 , a decree was passed in favour of A and B for malicious prosecution and during the pendency of the appeal from it B died and the appeal abated as against him and Gurtu, J. held that the whole appeal 'abated'. [ respectfully disagree. I do not see any inconsistency in B's getting a decree for malicious prosecution against the defendant and A's failing in getting such a decree.

In Kunj Behari Lal v. Ajodhia Prasad, ILR (1946) 21 Luck 453 : [AIR 1947 Oudh 28] and in the case of Malobi , it was held that a suit for partition or for dissolution of partnership and accounts fails if a co-owner or partner dies and the suit abates as against him. This is because, as I said earlier, the suit cannot be decreed in the absence of the co-owner or the partner. There is one joint and indivisible cause of action against all the co-owners or all the partners so that it is not possible for the suit to be decreed against some and dismissed against others. If such a suit is decreed it must be decreed against all the co-owners of the partners otherwise it cannot be decreed against any of them.

In Aravinda Sarma's case, 53 Cal WN 606 : (AIR 1950 Assam 53), Thandani and Ram Labhaya, JJ. held that a cause of action against defendants for a declaration of title in the plaintiff was 'joint and indivisible' because there was no apportionment of the liabilities of the defendants or specification of their shares. With great respect to the learned Judges I may point out that there could not be any question of apportionment of their liabilities or specification of their shares when they had no title to the property. The cause of action did not become indivisible merely because the defendants jointly disputed the plaintiff's title.

In Waris Khan's case AIR 1952 Nag 238, Bose, A.C.J. and Mudholkar, J. observed that if a decree can be passed and given effect to in so far as the rights of the parties actually before the Court are concerned without interfering with the interests of others the suit will continue and that a Court should not pass a decree which it may find itself incapable of executing owing to abatement of the suit against another person. In the case the learned Judges held that the suit could go on even though it abated against, a defendant and even though the decree to be passed in the suit might be inconsistent with abatement of the suit against another defendant.

In the case of Hakir Mohamed : AIR1953Cal588 , Das, J. held that a suit cannot proceed against one co-trespasser if it abates against another; with great respect disagree. The learned Judges felt bound by Arunadeva Chakravarty v. Mahomed All : AIR1928Cal138 . In that case Mukerji and Mitter JJ. held that the rule that all persons in actual possession should be joined as parties has been recognized because it is based on the principle that a suit will not be entertained where no effective decree can be passed. For the reasons given earlier I am unable to agree that no effective decree can be passed against a co-trespasser because another co-trespasser is not sued. A decree against one co-trespasser is certainly an effective decree as between him and the plaintiff and can be executed as against him.

In Reoti Prasad v. Hotilal, 1963 All LJ 222, it was held by a Bench of this Court that if all the heirs of a deceased defendant are not brought on the record it may not be possible to pass an effective decree. What is meant is that no useful purpose would be served by the suit being decreed.

12. This appeal should be allowed, the judgment of the lower Appellate Court should be set aside and the case should be remanded to the lower Appellate Court with a direction to dispose of the appeal against the remaining respondents on its merits. The appellant should get his costs of this appeal from the respondents.

S.N. Katju, J.

13. I agree.


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