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Shah Zahid HussaIn and ors. Vs. Shah Zafar HussaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.3
AppellantShah Zahid HussaIn and ors.
RespondentShah Zafar HussaIn and ors.
Excerpt:
civil procedure code (act xiv of 1882), section 45 - multi fariousness--misjoinder of parties and causes of action--persons claiming different plots of land situate in the same zamindari made defendants in one suit--declaratory suit. - - the learned subordinate judge was of opinion that the plaintiffs ought to have brought separate suits against the different sets of defendants who claim specific plots and accordingly directed the plaintiffs to amend their plaint, and as they failed to do so, rejected the plaint......court for partition. thereupon the defendants nos. 3 to 79 preferred objections claiming different plots of land to which they alleged they were entitled and urging that these plots should not be included in the partition. the revenue authorities referred the plaintiffs to the civil court and. thereupon the present suit was brought. the learned subordinate judge was of opinion that the plaintiffs ought to have brought separate suits against the different sets of defendants who claim specific plots and accordingly directed the plaintiffs to amend their plaint, and as they failed to do so, rejected the plaint. we are of opinion that the court below was in error in rejecting the plaint. the plaintiffs as we have said above applied for partition. this was a suit to establish the plaintiffs'.....
Judgment:

1. This is an appeal from an order rejecting a plaint on the ground of misjoinder of parties and causes of action. The plaintiffs and the defendants Nos. 1 and 2 are alleged to be recorded co-sharers. The plaintiffs applied to the Revenue Court for partition. Thereupon the defendants Nos. 3 to 79 preferred objections claiming different plots of land to which they alleged they were entitled and urging that these plots should not be included in the partition. The Revenue authorities referred the plaintiffs to the Civil Court and. thereupon the present suit was brought. The learned Subordinate Judge was of opinion that the plaintiffs ought to have brought separate suits against the different sets of defendants who claim specific plots and accordingly directed the plaintiffs to amend their plaint, and as they failed to do so, rejected the plaint. We are of opinion that the Court below was in error in rejecting the plaint. The plaintiffs as we have said above applied for partition. This was a suit to establish the plaintiffs' right to the property, the partition of which was sought by them. To such a suit they were bound to join as defendants every person claiming an interest in the property. The suit was not one for possession of specific plots of land against particular defendants, but for a declaration of right only and such a declaration could not be given unless all the parties interested were before the Court. We set aside the order of the Court below and send back the case under Order 41, Rule '23, of the Code of Civil Procedure with directions to re-admit the suit under its original number in the register and try it according to law. The appellants will have their costs of this appeal including fees on the higher scale. Other costs will follow the event.


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