1. This is a petition under Articles 216 and 227 of the Constitution and is directed against the decision of the Board of Revenue in a suit filed in the Revenue Courts by the petitioner No. 1, the respective fathers of petitioners Nos. 2 and 3 and opponent No. 4 for possession of the agricultural holding in question situated in Mouja Rajota, Pargana Khachrod.
2. The circumstances giving rise to this petition may be briefly stated as below:
3. On 20-2-1949 the four sons of one Moti namely Badshah, Koora, Dhanna and Gajja filed a suit under Sections 325 and 326 of Kanoon Mal Gwalior for possession of the agricultural holding in suit situated in Mouja Rajota. The suit was filed against Fakka. Their claim for possession was based on the allegations that Morusi rights in the suit lands had been acquired by them from the then Zamindar of Rajota one Nagu on payment of Rs. 300/- as Nazarana; that in the year following this acquisition one Pyarelal became the Zamindar of the Patti which included this land; that he, taking advantage of the fact that one of the brothers namely Koora was in his service, influenced him and obtained from him a Kabuliat in respect of this land for the Samvat Years 2001 and 2002 and granted a corresponding Patta in the name of Koora; that in spite of this all the four brothers continued to occupy the land and cultivated the same for the benefit of all of them; that Zamindar Pyarelal did not give any notice to them as required by law prior to Samvat Year 2003 but that in that year respondent Fakka obtained unlawful possession of the suit land by committing trespass. On these facts they claimed back possession from Fakka.
4. Fakka by his written statement contended that he had been put into possession by the Zamindar Pyarelal. He further contended that the Zamindar was a necessary party to this suit and ought to be joined for in his absence the suit would be bad.
5. The Tehsildar Khachrod before whom the suit was filed held by his order dated 23-3-1951 that Pyarelal should have been joined. A direction for his joinder was consequently given by him. In pursuance of this direction the plaintiffs joined him as a party. When Pyarelal was served he appeared and contended that the suit against him had become barred by limitation and ought therefore to fail as a whole. This contention of Pyarelal was upheld by the Tehsildar and the suit was dismissed as being barred by time.
6. It is not disputed on either side that in ease Pyarelal is considered a necessary party to the suit in the sense that in his absence the plaintiffs could not get any effective relief then the suit would fail as a whole by the lapse of time in view of the provisions contained in Section 409 of the Kanoon Mal which is not dissimilar to Section 22 of the Limitation Act.
7. Mr. Sanghi for the petitioner contended that the petitioners had brought the present suit for possession alleging that the principal defendant Fakka alias Fakira had entered into possession by committing trespass and dispossessed them although they were in possession as Morusi tenants. The petitioners' case may be good or weak on merits but in case the plaintiffs succeed in establishing their claim as Morusi tenants of the Zamindar and the alleged act of trespass by Fakka there is no legal impediment for their obtaining relief of possession. It may be, he urged that in order to effectually and completely decide all questions in controversy between the parties whether arising out of plaintiff's case or the defence put forward and to avoid multiplicity of actions another person could be joined. But joinder of such a person though considered essential for the above purpose cannot be said to be an indispensable condition for the plaintiff to obtain any effective relief. Such a person, it is urged, would merely be a proper party and not a necessary party.
If such a proper party is joined after the period of limitation the suit cannot fail in spite of the provisions of Section 22 of the Limitation Act or Section 409 of the Kanoonmal, Gwalior. The error committed by the Board of Revenue in interfering with the decisions of the Collector and the Commissioner is one which is apparent on the face of the record and is discernible by bare reference to the pleadings and the judgment of the Board. The learned counsel relied upon the decisions reported in United Provinces v. Atiqa Begum, AIR 1941 FG 16, Makundarao Ganpatrao v. Durgaprasad, AIR 1944 Nag 130; Mujtabai Begum v. Mehbub Rehman, AIR 1959 Madh Pra 359 and the decision in Kedannal v. Gopaldas, First Appeal No. 76 of 1953 decided by this Court on 25-10-1960 (MP).
8. On the other hand Mr. Harbansingh for the opponent contended that on a fair reading of the plaintiffs' case it is plain, that they seek to assert the unauthorised character of Fakka's possession by reason of what, according to them, had been done by Pyarelal. Under these circumstances Pyarelal was really a necessary party. Reliance was sought to be placed upon the decisions reported in Subbaraya v Seetha Ramaswami, AIR 1933 Mad 664; Poonam Chand v. Motilal, AIR 1954 Raj 287 and Mt, Zabaishi Begam v. Naziruddin Khan, AIR 1935 All 110. It was also contended that even assuming that the Board of Revenue had committed an error of law the present petition is unsustainable on the ground of, what may properly be described as, a mere error though it be of law. Reference in this connection was made by the learned counsel to the decisions reported in T.C. lasappa v. T. Nagappa, AIR 1954 SC 440 and Juwansinhji v. Members of Tribunal, AIR 1957 Bom 182.
9. Thus on these respective submissions on either side two Questions arise for consideration.
(1) Whether the Zamindar Pyarelal is a necessary party to the suit?
(2) Assuming that he is not a necessary party should the High Court exercise its powers under Article 227 of the Constitution to correct the error of law in taking him to be so.
10. The provision contained in Order 1 Rule 10(2) of the Civil Procedure Code which deals with the subject of addition or striking out of parties in civil proceedings before the ordinary civil courts uses two separate expressions in this connection. They are (1) who ought to have been joined (2) whose presence before the Court may be necessary. These two expressions aptly indicate who are necessary parties and who are proper parties. The Supreme Court in the decision reported in Deputy Com-missioner, Hardoi v. Rama Krishna, AIR 1953 SC 521 (526) approved the tests suggested by Pathak J., in the Full Bench decision of the Allahabad High Court reported in Benares Bank Ltd. v. Bhagwan Das, AIR 1947 All 18 (FB) for deciding whether a particular person is a necessary party in proceeding. They are:
(1) That there must be a right of some relief against such, party in respect of the matter involved in the proceedings in question and
(2) That it must not be possible to pass an effective decree in the absence of such a party. For considering the question regarding effectiveness of the decree the test suggested by their Lordships is whether that decree can be executed without the presence of the party in question as regards the property sought to be decreed in favour, of the claimant.
11. In Mst. Hirabai v. Jiwanlal, (S) AIR 1955 Nag 234 a Division Bench of this Court also proceeded on the basis of the aforesaid two tests in determining the question of necessary parties--
(1) Whether a relief is actually sought against the person who is said to be necessary party?
(2) Whether the relief claimed can or cannot be granted against the party actually impleaded in the absence of such a party.
12. In Govinda Chandra v. Sasadhar Mandal, AIR 1947 Cal 73 (74) it was held that in a suit'for possession of land, if any person other than the person sued is in actual possession of a portion of it he is a necessary party to the suit. Because even if a decree were granted in his absence it cannot be executed against him.
13. In AIR 1959 Madhya Pradesh 359 a Division Bench of this court approved the observation in. Vithoba v. Secretary of State, AIR 1925 Nag 873 to the following effect:
'The plaintiff is the best Judge of his own interest. If he seeks relief against a particular individual and impleads that individual as a sole defendant, it is not the look-out of the Court or of any other third person, to see whether somebody else must be allowed to intrude into the case as a co-defendant, against the plaintiff's will, simply because that third person represents to the Court that he is a person who would be affected by the decision'.
14. The subject of necessary and proper parties has been elaborately discussed in a recent decision of this Court in First Appeal No. 76 of 1953 decided by this Court on 25-10-1960 (MP).
15. Judged by the tests indicated in the aforesaid Supreme Court decision and other decisions it seems that the Zamindar cannot be said to be a necessary party to the present suit before the Tehsildar. Although the plaintiff has described the modus operandi employed by the Zamindar for his action in equipping himself with necessary evidence for his wrongful act in inciting Fakka to commit trespass upon the land alleged to be in peaceful and authorized possession of the plaintiffs, the principal part of the averment for claiming relief of possession from Fakka is that he had obtained possession from the plaintiff by committing trespass. In case the plaintiffs succeed in establishing, this averment there is no doubt that the plaintiff:
will be in a position to obtain sufficient and effective relief of possession from Fakka alone. On that averment there is no right to any portion of that relief against the Zamindar. In case the decree were passed against the trespasser Fakka the plaintiffs can certainly obtain back the possession of the land in suit by executing the said decree.
16. AS regards the second question regarding, propriety of interference by the High Court under Article 226 by issuing a writ of certiorari the matter has to be considered on the basis of the authorities particularly those of the Supreme Court.
17. The error in holding Zamindar Pyarelal as a necessary party is no doubt an error of law, the effect of which was that the plaintiffs' suit was wholly dismissed on the ground that it was barred by limitation. By the erroneous view of law he would be denied relief to which he was entitled in case he succeeds in establishing his averments regarding Fakka having committed trespass under the circumstances mentioned in the suit. Therefore for considering the second question the exact nature and scope of High Courts' power under Article 226 for issuing a writ of certiorari or prohibition has to be considered. This has been considered by the Supreme Court in AIR 1954 SC 440. Their Lordships while dealing with this matter observed at page 444 of the report:
'A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or Where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of 'ceitiorari' may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of 'certiorari' but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by 'certiorari, but not a mere wrong decision.'
18. In a later case reported in Hari Vishau v. Ahmad Ishaque, (S) AIR 1955 SC 233 their Lordships affirmed the aforesaid view and explained under what circumstances does an error of law become an error apparent on the face of the record. According to them the test laid down by Chagla C.J., in Batuk K. Vyas v. Surat Borough Municipality, AIR 1953 Bom 133 'that no error of law could be said to be apparent on the face of the record if it was not self evident and if it required examination and argument' may afford satisfactory basis for decision in majority of cases but they cautioned against application of this case too rigidly in the following terms.
'But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must foe left to be determined judicially on the facts of each case'.
19. In a recent decision reported in Nagendra Nath v. Commissioner of Hills Division, AIR 1958 SC 398 (412) their Lordships of the Supreme Court again examined the nature and scope of powers of judicial interference of the High Court either under Article 226 or 227 on the ground of error of law. Their Lordships reviewed the legal position with reference to the English and Indian decisions with reference to powers of issuing writs of certiorari and observed:
'So far as we know, it has never been contended before this Court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the court exercising its writ jurisdiction. No ruling was brought to our notice in support of the proposition that the court exercising its powers under Article 226 of the Constitution, could quash an order of an inferior tribunal, on the ground of a mistake of fact apparent on the face of the record.
But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record'. Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned? This court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law in England are, therefore, the same. It is also clear on an examination of all the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court that the common law writ, now called order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law. will not be sufficient to attract this extraordinary jurisdiction'.
20. Thus it is plain from these observations of the Supreme Court that the High Court in exercise of its jurisdiction under Article 226 or 227 would not interfere with findings of fact even though they might have proceeded on erroneous appreciation of oral or documentary evidence or inferences drawn therefrom. It would also not interfere with what might be called mere formal or technical errors of law. However it would interfere with the decision of an inferior tribunal if, in reaching it, it has exceeded its jurisdiction or has failed to proceed in accordance with the essential requirement of law which it is called upon to administer and that such an error has gone to the root of the matter or in the other words where an error committed by the inferior tribunal has reference to same legal proposition which is the basis of the order and appears therefrom as such basis and which can be said to be erroneous.
21. Applying these principles to the circum-stances of the present case it is clear that the dismissal of the suit in the present case proceeded on the basis of the legal proposition that the Zamindar Pyarelal was a necessary party to the action in the sense that he is an indispensable party. This legal assumption was apparent on the face of the decision of the Revenue Board. As discussed above this legal proposition was obviously erroneous. The tests indicated in the foregoing discussion about who can be called a necessary party when applied to the circumstances of the present case lead to the conclusion that Zamiudar Pyarelal could not be called a necessary party. The plaintiff does not seek any relief against him. He alleges trespass by Pakka and if he succeeds in establishing it and gets a decree against Fakka, who is in actual possession of the land in suit, he would obtain full and effective relief. Moreover the plaintiff had not irn-pwaded Pyarelal to begin with. It was under the orders of the Court that he was made a party. In these circumstances the plaintiffs' suit before the Tehsildar ought to have been nipped in the bud on the ground that Pyarelal was a necessary party and he had been not impleaded within limitation.
22. The decision of the Board of Revenue and that of Tahsilar which is restored by the Board are hereby quashed.
23. It will now be open for the Tehsildar, before whom the matter will go back, to proceed further in the case as against Fakka and to dispose it of according to law. Petitioners will be entitled to costs from the opposite side. Counsel's fees shall be taxed at Es. 100/-.
24. I agree.