G.B. Patnaik, J.
1. Defendants 1 to 7 are the petitioners challenging the order dated 1-8-1981 of the Munsif, Sambalpur, in Title Suit No. 8629 of 1976/1980 whereby the learned Munsif has held that the suit did not abate as a whole though it abated as against defendant 14.
2. A short genealogy indicating the relationship of the defendants inter se is given hereunder for proper appreciation of the point in the suit :
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Maina Nilamani Kinja Hrushikesh
Married to (dead) (d-10) (d-14)
Pandaba (d-18) | | |
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_______________ __________________ ____________
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Chandantula Nage Bhojraj shibsankar sudarsanJanakramSanatam
Married to (dead) (d-11) (d-15) (d-13) (d-15) (d-16)
Plaintiff filed the suit for declaration of his right, title and interest on the assertion that after the death of Uddhab, Kunja (defendant 10) separated himself from his other brothers and took his share in mauza Kenapali and in mauza Patrapali, whereas his other brothers, namely Hrushikesh (defendant 14) and Nilamani jointly possessed lands in mauza Sunari. Nilamani and Hrushikesh sold their land in favour of pro forma defendant 18 who is no other than their sister's husband by registered sale deed dt. 25-2-1961 and the said defendant 18 was continuing to possess the land including the suit land in his own right. In the year 1971, defendants 10, 12 and 14 created disturbance in the peaceful possession of defendant 18 and a proceeding under Section 145, Cr. P. C. was initiated in Criminal Miscellaneous Case No. 239 of 1971. In that proceeding, possession of defendant 18 was declared. The order of the learned Magistrate dated 13-9-1972 in Criminal Misc. Case No. 239 of 1971 was challenged before the Sessions Judge, Sambalpur, in Criminal Revision No. 24 of 1972 which was dismissed by the learned Sessions Judge. Defendant 18 executed a sale deed in favour of the plaintiff on 25-6-1973 in respect of the suit land and delivered possession thereof to the plaintiff. Plaintiff alleges that defendants 1 to 9 without any right, title and interest over the land tried to create disturbance in plaintiff's possession and a case under Section 145, Cr. P. C., was instituted by the plaintiff being Criminal Miscellaneous Case No. 125 of 1974. The learned Magistrate initially attached the suit land and then decided that this was a matter where parties should obtain order from the competent court proving their title and possession. Plaintiff, therefore, filed the suit for declaration of his title and possession over the suit land.
3. Defendants 1 to 6 contested the suit and filed written statement alleging that the sale by Nilamani and Hrushikesh was not for legal necessity nor was it acted upon and, therefore, defendant 18 did not get any title by the said sale. Consequently, the plaintiff did not derive any title by virtue of the sale deed executed by defendant 18 in his favour. According to the defendants, Nilamani died in a state of jointness with Kunja and Hrushi-kosh without leaving any male issue and, therefore, on his death, Kunja and Hrushikesh succeeded to the rights of Nilamani. Later on, Kunja relinquished his interest in favour of the surviving coparceners and, therefore, defendants 10, 11, 12, 13, 15 and 16 being the owners-in-possession of the property executed a registered sale deed in favour of them (defendants 1 to 6) with regard to their joint interest and thus they were possessing the land in their own right.
4. On 23-3-1981, defendants 1 to 6 filed a memo in the court indicating that defendant 14 had died long since. The learned Munsif posted the matter to 1-5-1981 for taking appropriate steps. On 12-5-1981, the advocate for the plaintiff filed a memo stating that plaintiff did not want to substitute the legal representatives of defendant 14 who was set ex parte prior to his death. On 21-7-1981, the advocate for defendants 1 to 6 filed a petition stating that defendant 14 died leaving behind him his widow and two sons. It was urged by the learned counsel for the defendants that in view of the stand taken by the plaintiff's lawyer and On account of non-substitution of one of the legal heirs of defendant 14, namely the widow, it should be held that the suit abated as against defendant 14 and consequently the suit abated as a whole.
It may be noted that the--one of defendant 14 were already on record being defendants 15 and 16. By the impugned order dated 1-8-1981, the learned Munsif came to hold that the suit did not abate as a whole and, therefore, the defendants 1 to 6 have preferred this revision against this order of the learned Munsif.
5. Mr. Sinha, the learned counsel for the petitioners, contended that in view of the pleadings of the parties, defendant 14 being one of the vendors of defendants 1 to 6, was necessary party to the suit and, therefore, the suit having abated as against defendant 14 for non-substitution of one of his legal heirs, namely his widow, must have aboved as a whole. Mr. Mohapatra appearing for the plaintiff-opposite party, on the other hand, contended that the plaintiff did not seek any relief against defendant 14 and in the context of the pleadings between the parties, defendant 14 was not a necessary party to the suit. He also contended that defendant 14 was set ex parte in the suit and the suit would not abate as a whole particularly when his two sons (defendants 15 and 16) were already on record.
6. The main controversy which requires adjudication is whether defendant 14 was a necessary party to the suit or not. Mr. Sinha, the learned counsel (or the petitioners, in support of his contention placed reliance on the decision of the Madras High Court in the case of (Pasumarthi) Subbaraya Sastri v. Muk-kamala Seetha Ramaswami, AIR 1933 Mad 664; the decision of the Rajasthan High Court in the case of Poonam Chand v. Motilal, AIR 1954 Raj 287 and an mi-reported decision of this Court in the case of Bhagabat Jena v. Ramchandra Behera (Second Appeal No. 129 of 1962 decided on 29-11-1963).
In the Madras case (AIR 1933 Mad 664), in the suit filed by the plaintiff to eject the defendant, the defendant took the plea that the land belonged to the municipal council and he had the necessary permission from the municipal council. In the context it was held that the municipal council was a necessary party to the suit and, therefore, the suit was bad for non-joinder of the necessary party. Thus, on the case of the defendant himself, the municipal council had title to the land in question.
In the Orissa decision (S. A. No. 129 of 1962), one of the questions for consideration was whether one Agani had title to the disputed property or not. The trial court had held that Agani derived no title to the disputed property. On appeal, the lower appellate court also held that Agani derived no title to the land. In second appeal, the Court found that Agani had died before institution of the second appeal and in absence of substitution, the decision that Agani derived no title to the disputed property made by the courts below became final. Taking into consideration the non-substitution of Agani, the Court held:--
'..........so long as there is a decisionon an issue which has become final and conclusive as between the appellant and the deceased respondent any further appeal where that decision may have to be reversed must necessarily lead to a conflict of decisions on that concluded issue.'
Accordingly the Court dismissed the appeal. This decision, therefore, has no application to the present point of controversy.
The decision of the Rajasthan High Court (AIR 1954 Rai 287) is a direct authority on the point. In that case, the plaintiff had brought the suit against his brother 'M' and the alienees from him on the allegation that there was a partition in the family and the property in dispute came to the plaintiffs branch and, therefore, 'M' had no authority to sell the property. It was held by the Court that 'M' was a necessary party to the suit as it was really his right to the property which was under dispute, though 1M' was not very interested in the litigation having alienated the property in favour of other defendants. This decision has been considered by a later Full Bench decision of the same Court and has been reversed in the case of Hardev v. Ismail, AIR 1970 Rai 167. In para 4 of the judgment, their Lordships said:--
'With great respect, we are of the view that the law laid down by the Division Bench in Poonamchand's case (AIR 1954 Rai 287), is not sound. When the vendot 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......'
In overruling the earlier Bench decision of the Court reported in AIR 1954 Raj 287, the Full Bench also took into consideration another Full Bench decision of the Allahabad High Court reported in AIR 1947 All 18 (Benaras Bank Ltd. v. Bhagwan Das) which had been approved by the Supreme Court in the case of the Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate v. Rama Krishna Narain, AIR 1953 SC 521. In my view, the Full Bench decision of the Rajasthan High Court lays down the correct principles. The Rajasthan High Court in the Full Bench decision also took note of the Madras decision (AIR 1933 Mad 664) and distinguished the said decision and all other similar cases on the ground that in those cases, defendant had not claimed full ownership over the property but had claimed a limited right from the real owner and, therefore, the real owner continued to be a necessary party. In my view, the distinction is wholly justified.
7. On the basis of the aforesaid Full Bench decision of the Rajasthan High Court and in the context of the pleadings between the parties in the present case, it can be said without any hesitation that defendant 14 was not a necessary party to the suit and, therefore, the suit as a whole would not abate for non-substitution of one of the legal representatives of the said defendant 14, though it would abate as against defendant 14. In this view of the matter, it is not necessary to examine other contentions raised on behalf of Mr. Mohapatra, the learned counsel appearing for the plaintiff-opposite party.
8. In the result, I find that there is no merit in this revision and accordingly dismiss it. I make no order as to costs in this Court. Since the suit is pending long since, the learned Munsif is directed to dispose of the suit within a period of three months from the date of receipt of the lower court records.