S. Acharya, J.
1. Second Appeal No, 309/73 relates to Title Suit No. 3 of 1970. Second Appeal No. 310 of 1973 relates to Title Suit No. 2 of 1970. The plaintiff in both the title suits is the same and his suits are based absolutely on similar facts.
2. The plaintiff's case in both the suits and the defendants' defence in both the suits being exactly similar, both the suits were tried together with the consent of the parties in both the suits, and two judgments with similar reasons and grounds for decision were delivered by the trial court decreeing the plaintiff's suits for ejectment of the defendants from the suit lands.
3. Both the defendants in the two title suits preferred appeals against the said judgments of the trial court. In the lower appellate court both the appeals were heard together. The same lawyers who had appeared for the parties in the two suits appeared for the parties in the appeals; same questions of law and fact were agitated, and both the appeals were dismissed by the lower appellate court by one common judgment.
The unsuccessful defendants in both the courts below have preferred these two appeals; only one set of argument was advanced by the common counsel appearing for the parties in both the appeals, and hence this one common judgment is hereby delivered to govern both these appeals.
4. The respective cases of the plaintiff and the defendants in both the suits have been stated in detail in the impugned judgment. Suffice it to say that in boththe suits the plaintiff has asked for the eviction of the defendants from the suit lands, as specifically described in the plaints in both the suits, on the assertion that the plaintiff is the owner of the suit property and the defendants in both the suits have forcibly trespassed into different portions of the suit property; and they have no manner of right, title or interest over the said portions of land.
The defence put -forward by the defendants, inter alia, is that they have been inducted as tenants in respect of the portions of the suit property in their possession by the trustee of the deity Malikeswar Swamy who is actually the owner of the suit property.
5. Both the courts have held that the plaintiff is the owner of the suit lands and that the defendants have no right, title or interest over the portions of the suit lands which they are occupying by constructing houses thereon. Mainly on that finding the plaintiff's suits for the eviction of the defendants from the suit lands in their possession have been decreed.
6. Mr. Rao, the learned counsel for the appellants in both the appeals, contends that these suits are not maintainable in view of the fact that the deity Malikeswar Swamy has not been impleaded in the suits even though the defendants specifically alleged in their written statement that the suit property belonged to the deity Malikeswar Swamy. According to Mr. Rao the suits are liable to be dismissed as effective decrees cannot be passed in these suits in the absence of the deity Malikeswar Swamy as a party to the suits, as the said deity, on the aforesaid averments of the defendants, is a necessary party in both these suits
7. Mr. Y. 3. N. Murty, the learned counsel for the respondent, submits that the issue No. 7, i.e. 'Whether the suit is bad for non-joinder of proper and necessary parties ?', was not pressed in the trial court judgment That being so, Mr. Murty states that the appellants cannot now raise the aforesaid question raised by Mr. Rao in, these appeals.
8. In Gauri Shankar's case reported in AIR 1972 SC 2091 their Lordships in para. 7 have held that a question not agitated before the lower appellate court or expressly given up there can be allowed to be raised if it is a pure question of law; but in permitting the same to be done the court has to consider Whether in exercise of proper and judicial discretion such a point should be permitted to be agitated when it has been conceded orabandoned before the court below. Before giving permission to argue that point, the court has to look at all the facts and circumstances; the conduct of the parties seeking to raise that point is of great importance.
In the case reported in AIR 1925 PC 290 (Bansilal Abirchand v. Ghulam Mahbub Khan) in effect it has been held that a plea of want of jurisdiction of the court to entertain the suit, though abandoned in one court, can be raised in the higher court. That plea was again a pure question of law cutting at the root of the maintainability of the suit in the court in which it was filed, and it was found in that case that that court had no jurisdiction to entertain the said suit.
In sub-para. 3 of para. 26 of the Division Bench decision reported in AIR 1958 Andh Pra 724, (Bippala Suri Dora v. V. V. Giri), their Lordships have observed as follows;--
'It is no doubt true that on question of law, there cannot be any question of estoppel, and the applicant can raise this as a ground of objection in the appeal. But when the applicant, as a matter of fact, has given up this point, he cannot, in our opinion, be allowed to agitate the same.'
9. On the law on the point as laid down above it has at first to be seen as to whether the above question, now raised by Mr. Rao is a pure question of law or not. The question, as to whether on the non-joinder of the deity Malikeswar Swamy as a party in the suits merely on the allegation of the defendants that the said deity is the owner of the suit property, the plaintiffs suits are maintainable or not, cannot be a pure question of law, as the determination of that question will depend on a consideration of various facts to be determined and adjudicated on the production of the evidence and materials to that effect by the parties to the suit.
10. In para. 22 of the case reported in AIR 1954 Raj 58 (Sukhlal v. Deepchand) it has been observed:
'It is indeed well settled that it is open to the parties or their counsel in the trial of civil suits to abandon such issues as they like, and if that is done, they cannot be revived.'
In making the above observation, their Lordships of the Rajasthan High Court followed the decision reported in AIR 1923 PC 189, (Annada Mohan Roy v. Gour Mohan Mullick).
In the case reported in 1968-34 Cut LT 1360, (Mahadeb Patnaik v. Dula Dei) it was decided that as the issue of nonjoinder of party was not pressed before the lower appellate court, that point could not be urged in second appeal.
In the decision reported in AIR 1918 Mad 1260, (Kuppusami Aiyangar v. Narasimha) a plea, one of misjoinder, was taken up in the trial court, but was not pressed in that court and in the lower appellate court, and so their Lordships held that such a plea could not be allowed to be reopened in second appeal.
11. It is of course true that the question of non-maintainability of the suit in the ground of non-joinder of necessary parties not enabling the court to pass an effective decree, or the question of limitation or want of jurisdiction of the court to entertain the suit and/or some other such fundamental questions which cut at the root of the maintainability of the suit can be raised in the higher court even though such questions were abandoned in the lower court. In the present cases, the only question raised by Mr. Rao is non-joinder of the deity Malikeswar Swamy as a party to the suits. Therefore it is to be seen whether in the facts of these cases the said deity is a necessary party in the suits or not. Mr. Y. S. N. Murty concedes that if in view of the facts of these cases and the nature of the reliefs asked for, the said deity is held to be a necessary party in the suits, then the question of non-joinder of the said deity can be agitated even at this stage. Mr. Rao also concedes that if the said deity is not a necessary party in these suits, but is only a proper party, then in view of the fact that the issue regarding non-joinder of party was given up by the defendants in the trial court, he may not be allowed to agitate the question of maintainability of the suits on the ground of non-joinder of the said deity. Therefore, the moot question is whether on the facts of this case the said deity is a necessary party in these suits.
12. In the decision reported in AIR 1955 Andhra 107, (Municipal Council, Rajamundry v. Simhadri Ranganayakalu) it has been held that there is an essential distinction between a necessary party and a proper party to a suit. Necessary parties are parties necessary to the constitution of the suit and without whom no decree at all can be passed. Proper parties are those whose presence enables thecourt to agitate more effectively and completely the questions raised in the suit.
In AIR 1963 Raj 198, (Dhan Singh Yadav v. Badri Prasad) while recognising the distinction between the non-joinder of a necessary party and that of a proper party in a suit, it has been held that a party is necessary for the purpose of litigation when in his absence the court cannot pass an effective decree at all, and a party is proper whose presence would assist the court in the adjudication of the controversy.
To the same effect are the decisions reported in AIR 1963 Ori 186, (Narahari Mohanti v. Ghanshyam Bal); AIR 1945 Pat 189, (Ramchandar Singh v. Raghopati Sahai) and AIR 1974 Punj & Har 7, (Bhagwan Dass v. Bishan Chand).
13. In the present cases, the suits are for the eviction of the defendants from the suit lands on the ground that they have forcibly trespassed into the suit lands. No doubt, the defendants in the suits have alleged that the aforesaid deity is the owner of the suit property and the trustees of the deity inducted them as tenants in respect of the suit lands. So, if the, court finds that effective decrees can be passed in these cases by not impleading the said deity, it is free to pronounce its judgments on the disputes presented before it and on assessing the title in question of the different parties in these cases. The judgments in these cases will be judgments in personam and not in rem and will bind only the parties in these suits. The deity's right, title of interest, if any, to the suit property cannot at all be affected by the judgments in these suits, and if really the deity is any way interested in the suit lands, it can, even after the judgments in these cases, agitate that matter in all possible manner and in all forums open to it. The judgments in these suits will not affect or bind the deity in any manner whatsoever. Except the defendants, no representative of the deity has come forward to oppose the maintainability of the suits on the above ground, even though D. W. 2 was examined in these cases as an alleged trustee of the deity. Except the defendants' allegation to that effect there is nothing convincing on record to support the said allegation. Both the courts 'have, on a discussion of the evidence on record, negatived the said allegation. So, merely on such allegation of the defendants one cannot say that the said deity is a necessary party to the suite. If one is todecide the said question merely on such plea of the defendants, then the defendants in all cases will freely raise similar untenable plea to put obstacles in the way of due disposal of the suit. So on the facts of these cases and merely on the said allegation of the defendants it cannot be said that the deity is a necessary party in these suits.
14. In the decision reported in AIR 1961 Raj 196, (Shankerlal v. Jethmal) it has been observed that where a question of title is raised in ,a suit for specific performance between a vendor and a purchaser, it has got to be decided between the parties to the suit, even though this may have to be in the absence of some other person or persons who may be interested in the title of the property in question but have not been made parties to the said suit and therefore are not before the court Their Lordships state that the courts are bound to and should pronounce upon the efficacy or otherwise of the title in question in such cases though the judgment of the court in such an action would be only in personam and not in rem.
In the Division Bench decision reported in AIR 1921 Pat 260, (Mst. Bhagwati Kuerv. Jagdam Sahay), Das, J. after approving the observations made by Farran, C. J. in (1897) ILR 21 Bom 229, (Kashi v. Sada-siva), ultimately held that the plaintiff in an ejectment suit must of course prove his title, but it does not follow that he must prove this title in the presence of the person interested to deny his title. The observations of Farran, C. J. in (1897) ILR 21 Bom 229 (supra) should profitably be quoted below :--
'... ... ... ...... We consider that if theplaintiff in an ejectment suit can make out a legal title to the land he is entitled to maintain a suit against the person in actual juridical possession of such land for its recovery, without making the person, under whom the latter claims to hold, a party to the suit.'
The facts on which the above pronouncement was made in AIR 1921 Pat 260 are almost identical with the facts of the present cases before me.
15. On the above discussions and considerations I am firmly of the view that the deity Malikeswar Swamy is not a necessary party in these suits, and on the non-joinder of the said deity these suits cannot fail.
16. It would have been better if, on the above plea of the defendants theplaintiff would have made the deity a party to the suit but as the defendants did not press the issue of non-joinder of party which plea they were free to give up under Order 1, Rule 13, Civil P. C. that question did not crop up for consideration in the Courts below and cannot be allowed to be raised in these appeals.
17. In view of my finding that the deity Malikeswar Swamy was not a necessary party but was probably a proper party to the suits, the decisions, cited by Mr. Rao, which say that when necessary parties are not impleaded in the suit even in spite of objection taken from the start the suit must be dismissed, are of no avail.
18. Mr. Rao has not urged any other ground to assail the findings and conclusions of the courts below.
19. On the above findings, conclusions and discussions and considerations, I do not find any merit in these appeals, and they are accordingly dismissed. But in the circumstances there will be no order as to costs of these appeals.