M.D. Bhatt, J.
1. This is the appeal of the plaintiff, now deceased, and continued by her Lrs. against the lower appellate court's judgment and decree, affirming the trial court's dismissal of her suit.
2. Plaintiff Tulsibai, now deceased, had filed the suit against Sitaramdas who died during the pendency of the suit and also against one Bherulal. It was alleged in the suit that Sitaramdas had executed a bogus sale-deed dated 22-4-1965 in favour of the other defendant Bherulal, without any right and title which actually vested in the plaintiff alone. It was urged in this connection that the prior sale-deed dated 9-2-1949 on the strength of which the defendant No. 1 Sitaramdas had claimed his own title and on the strength of which he had sold the house in question to the other defendant Bherulal, was a forged and fictitious document, without any consideration, and likewise forged, was one rent note dated 9-2-1949. The plaintiff, hence, claimed the following three reliefs in her suit.
(1) Declaration that the sale-deed dated 22-4-1965 executed by the defendant No. 1 Sitaramdas in favour of the defendant No. 2 Bherulal, was void, and as such, not binding on the plaintiff.
(2) Declaration that the earlier sale-deed and rent note both dated 9-2-1949 alleged to be executed by the plaintiff in favour of the defendant No. 1. Sitaramdas, was void and inoperative; and
(3) Permanent injunction restraining the defendants from interfering with the plaintiff's possession of the property in question under the sale deed.
3. Defendant No. 1 Sitaramdas had died during the pendency of the suit and the plaintiff failed to bring the deceased's LRs. on record. The defendant No. 2 Bherulal, among other contentions, raised the preliminary objection that the LRs. of the deceased Sitaramdas were necessary parties to the suit and in their absence, the suit was not maintainable against Bherulal alone. It was stated that with the death of Sitaramdas and in the absence of his LRs right to sue could not survive against the defendant No. 2 Bherulal alone and consequently the suit had abated as a whole and was liable to be dismissed as being improperly constituted in the absence of the LRs of the deceased. The trial Court decided this primary objection by way of a preliminary issue, and upholding the contentions of the contesting defendant Bherulal, held that the right to sue did not survive against Bherulal alone and the suit which had thus abated against the deceased defendant Sitaramdas, was liable to be dismissed as improperly constituted in the absence of the LRs of the deceased on record. Accordingly, the suit was dismissed. The plaintiff preferred the appeal against the same. The lower appellate Court, upholding the reasonings and findings of the trial Court in toto and further relying on, AIR 1954 Raj 287. Poonamchand v. Motilal, dismissed the appeal, and hence now, the plaintiff's present second appeal,
4. The learned counsel for the appellants who are the LRs of the deceased plaintiff, has urged before me that AIR 1954 Raj 287 (supra) stands now overruled by the said High Court in AIR 1970 Raj 164 (FB), Munnilal Garg v. State of Rajasthan. It has been argued in this regard that on the date of the suit i.e., on 29-7-1965, Sitaramdas had no longer any interest in the suit property, inasmuch as he had already sold the suit property to the defendant No. 2 Bherulal vide sale deed dated 22-7-65 : and as such, Sitaramdas was only a pro forma defendant, there being no necessity whatsoever therefore, to bring the LRs on record, on the death of Sitaramdas during the pendency of the suit.
5. It has been pressed before me by the appellants' learned counsel that though the suit had abated against the deceased Sitaramdas in the absence of his LRs on record, yet it could not abate against the other existing defendant viz., defendant No. 2 Bherulal; and the right to sue still survived against this defendant No. 2 Bherulal; and as such, the suit could well proceed against him without there being any abatement of the suit as a whole.
6. The learned counsel for the respondent-defendant Bherulal, citing, AIR 1973 SC 204 Babu Sukhram Singh v. Rama Dular Singh has urged that the nature of reliefs claimed in the suit being joint against both the defendants Sitaramdas and Bherulal, failure to implead the LRs of the deceased Sitaramdas had led to abatement of the suit as a whole against both the defendants viz. the deceased defendant and so also the surviving defendant.
7. AIR 1973 SC 204 (Supra) cited by the respondent's learned counsel obviously has no application to the facts and circumstances of the present case. The Supreme Court case relates to a matter where permanent injunction was sought against all the 39 defendants for directing them to demolish the construction in question on the particular land and to fill up the pits and nallahs on the suit land. This joint claim against all the defendants together was decreed by the trial court and was partially modified by the first appellate court, but on a further appeal, to the High Court, the High Court allowed the appeal of the defendants and dismissed the whole suit. In the appeal preferred by the plaintiff in the Supreme Court, some of the respondent defendants had died and their LRs were not brought on record within the time prescribed. It was in these circumstances when there was the original joint decree for permanent injunction against all the 39 defendants and further when this joint decree against them was set aside by the High Court, that their Lordships of the Supreme Court came to hold the view that the reliefs sought against all the defendants, being joint in nature and there being no separate claim against any of the total set of defendants, the appeal abated as a whole under Order XXII, Rule 4, C. P. C. The circumstances of the present case are altogether different. In the present suit, there are three reliefs : one for declaring the earlier sale deed dated 9-2-1949 alleged to be executed by the plaintiff in favour of the defendant No. 1 Sitaramdas as void and inoperative the other for declaration of the subsequent sale-deed dated 22-4-1965 executed by defendant Sitaramdas now deceased, in favour of the other defendant No. 2 Bherulal, as void and inoperative; and the last permanent injunction against both the defendants, restraining them from interfering with the plaintiff's present possession of the house in question. Now, these three reliefs are Eound to be based on the grounds : firstly that, Sitaramdas, now deceased, who was the then Zamindar, had got executed the sale deed dated 9-2-1949 fraudulently and fictitiously without her knowledge regarding the nature of the document and without paying her any consideration, whatsoever; and as such, the sale deed was void and inoperative and so also the subsequent sale deed executed by Sitaramdas in favour of the defendant No. 2 Bherulal was equally inoperative for the reason, in the absence of any valid title in Sitaramdas; and secondly, that, plaintiff by her long adverse possession beyond the prescribed period, had acquired valid title to the suit house (Para 10 of the plaint). It would, hence, have to be seen whether with the nature of the suit as aid and the reliefs as claimed, Sitaramdas, though being a proper party, was a necessary party also and whether an effective decree could be passed against Bherulal alone even in the absence of Sitaramdas, now deceased, and his LRs.
8. The Full Bench decision of the Allahabad High Court in Benaras Bank Ltd v. Bhagwandas, AIR 1947 All 18, has laid down the two tests for determining the question as to who is the necessary party. These tests are : firstly, there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and secondly, it should not be possible to pass an effective decree in the absence of such a party. The Supreme Court in AIR 1953 SC 521 Deputy Commr., Hardoi v. Rama Krishna has approved of the law laid down by the Full Bench of Allahabad High Court in this respect.
9. Now, in the instant case, it is an admitted position that the plaintiff-appellant is in present possession of the house in question. The Full Bench of the Rajasthan High Court, in Hardeva v. Ismile, AIR 1970 Raj 167 held the view that the law laid down by the Division Bench in Poonamchand's case, AIR 1954 Raj 287 (supra) is not sound, and has observed as under (at p. 169) :
'When the vendor has sold his property and has delivered the possession of the property to the vendee, the vendee becomes the sole owner of the property and it is up to the vendee to defend his title against any person who claims any right in the property. The vendor may be a proper party, but he is not a necessary party inasmuch as an effectual decree can be passed in favour of third person against the vendee. It cannot be said that the constitution of the suit is bad and no relief can be granted to the plaintiff against the vendee in the absence of vendor. Order 1, Rule 9 lays down that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and 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. The injunction of the law is not to dismiss a suit as incompetent if it is possible for a court of law to proceed with the trial of the suit and determine the rights and interests of the parties actually before it. In a case in which a vendor has lost his right or interest in the property by reason of transfer and all rights, title and interest in the property have vested in the vendee, it cannot be said that the suit cannot proceed against the vendee.''
10. The above observations in AIR 1970 Raj 167 (FB) (supra) apply to the facts and circumstances of the present case on all fours. The plaintiff has not admitted the factum of any sale in favour of the defendant Sitaramdas, now deceased.
11. Presuming for the sake of argument that there was such a sale in favour of the defendant Sitaramdas, the latter, consequent to sale-deed executed in favour of the defendant No. 2 Bheru-lal, had lost all rights, title and interest in the properties held by him, and as such, it was up to the final vendee that is, the defendant No. 2 Bherulal, to defend his title against any person who claims any right in the property i.e. against the plaintiff in the instant case who claims to be the original owner. Sitaramdas, undoubtedly, was the proper party, but he was not a necessary party, inasmuch as an effectual decree in favour of the plaintiff in the matter of the three reliefs could as well be passed against the last vendee viz., the defendant No. 2 Bherulal. Whatever right, title and interest, Sitaramdas, now deceased, had, if, at all, he had any, would come to have been vested in his vendee viz. The defendant No. 2; and as such, the suit with the reliefs as claimed, could well proceed against Bherulal alone. After the particular sale in question by Sitaramdas, now deceased, in favour of Bherulal, Sitaramdas did not have any interest whatsoever in the suit-property sold by him. His interest in the result of the suit for resisting the plaintiff's claim could be only to this extent, that in case the plaintiff succeeded, he could be made liable to refund the amount of consideration received by him from Bherulal, to whom he had sold the property. But, even in the absence of Sitaramdas, there appears to be nothing to prevent the plaintiff to seek the relief of declaration of her right and title to the suit property and consequently to get the sale deed executed in favour of the defendant No. 2 Bherulal declared void and ineffective on the basis of want of right and title in Bherulal's vendor i.e. Sitaramdas now deceased. Plaintiff's suit claim for declaration of her right and title is found to be effectually enforceable even against the defendant No. 2 Bherulal alone particularly in the circumstance that the plaintiff is admittedly in possession of the suit property, and furthermore in face of the circumstance as pleaded by her that she had acquired the right and title irrespective of any sales whatsoever, by her long and continuous possession adversely against the whole world and more particularly against those persons who claim the title in themselves under any particular sale deeds. Thus, from all aspects of the matter, Sitaramdas is not found to be a necessary party in the case; and as such, the suit can well proceed only against the defendant No. 2 Bherulal in spite of the absence of the LRs of the deceased Sitaramdas. Plaintiff's appeal, hence, deserves to be allowed. Right to sue obviously survives against the remaining defendant Bherulal even in the absence of the LRs of the deceased defendant No. 1 Sitaramdas, and the suit does not abate as a whole against both, i.e., late Sitaramdas and the other defendant Bherulal
12. In the result, thus, the plaintiff's appeal is allowed. Consequently, the judgment and decree of the lower appellate court dismissing the suit as improperly constituted, are set aside with the order and direction that the suit may now proceed against the sole surviving defendant Bherulal in the matter of the reliefs, as enforceable against this particular defendant Bherulal. Respondent to bear the appellants costs besides bearing his own. Counsel's fee as per schedule, if certified. Parties are directed to appear in the trial Court on 22-10-1981 for further proceedings in the suit.