N.K. Das, J.
1. Plaintiffs are the petitioners against a judgment of reversal in a suit for declaration of title and recovery of possession. The appellate Court has remanded the suit to the trial Court and, as such, this revision arises.
2. The case of the plaintiffs is that the suit lands belonged originally to one Ratnakar Panda. He surrendered, these lands to the Mafidar of Jharsuguda late Lal Haribansha Singh Deo by a surrender deed dated 21-2-1942, The Mafuidar settled these lands in favour of the plaintiffs by executing three documents of lease on 7-3-1942 and since then the plaintiffs have beea in possession of these lands. Thereafter the plaintiffs got these properties partitioned and they have perfected their title on the same. The defendant forcibly possessed these lands and amalgamated these lands with his own land and a proceeding under Section 145, Code of Criminal Procedure was started which ended in favour of the defendants.
The defendant in his written statement has stated that he purchased Plots Nos. 4812 and 4813 from one Ghasi Kisan on 20-11-1946 and since then he has been in possession of those plots. Portions of R S. Plot 4814 adjoin Plot No. 4812. He improved and converted those portions into paddy land and amalgamated those lands with his own land since 1946. He denies plaintiffs to be in possession of the lands in any way and that the proceeding under Section 145, Cr. P. C. has been properly decided.
The trial Court decreed the suit holding that the plaintiffs were in possession and they have been dispossessed. The lower appellate Court haa held that the suit suffers from mis-joinder of parties and, as such, is not maintainable. Therefore, an issue was framed about the mis-joinder of parties and the suit was remanded for fresh trial to the trial Court. As against that decision, the present civil revision has been filed.
3. In the plaint, plaintiffs have stated that there was a surrender of the lands by the original owner in favour of Maufidar. He settled these lands by deeds of lease on one day in favour of plaintiffs and since then the plaintiffs are in possession of those lands. The defendant in the written statement has stated that the suit is bad for multifariousness. The lower appellate Court has relied on the decision in Hadu Sahu v. State of Orissa, AIR 1964 Orissa 159 and has held that the suit is not maintainable. In that case twenty-eight plaintiffs who were in separate possession of different parcels of land forming part of a survey number and against whom an order of eviction had been passed under Section 7 of Orissa Act 15 of 1954 brought a suit against the State Government on the allegation that each of them had acquired prescriptive title by adverse possession to a portion of land in his exclusive possession. Each of the plaintiffs set up a claim to a parcel of land in which the other plaintiffs were not interested. It was held that the suit was bad for multifariousness. There was misjoinder of plaintiffs because each plaintiff had separately to prove his own possession for more than sixty years and there was no common question of fact or law involved. There was also misjoinder of causes of action because the order of eviction passed against one plaintiff did not serve as a cause of action against another plaintiff in respect of another land. In that case it was held by the lower Court that the oral evidence was not cogent to arrive at a conclusion that the plaintiffs have been using the suit lauds since more than sixty years. At any rate some of the plaintiffs might have acquired some such right and not all the plaintiffs and from the evidence of a few all cannot he benefited so as to get a decree in common. Basing on those findings the High Court held that the suit was bad for multifarifusness as one of the plaintiffs may be in possession for mare than sixty years and others might not have been and they were not interested in the lands of others. This Court also did not accept ihe decision cited before it, namely. Radharani Dasi v, Sukhdeb Bhattacharjee, AIR 1928 Cal 92 which lays down that subject to the control of the Court, persons can unite as plaintiffs though seeking individual reliefs in cases where the investigation would to a great extent be identical in each individual case and that the policy of the rule is to avoid needless expense where it. can be done without injustice to anyone and it carries out its object.
Order 1, Rule 1 of the Civil P. C. provides that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions, is alleged to exist, whether jointly, severally or in the alternative where, if such persons brought separate suits, any common question of law or fact would arise.
Section 90 of the Code of Civil Procedure provides that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court; provided nothing in this section shall apply to a non-joinder of necessary party.
Basing on the aforesaid provisions, it is contended by the learned counsel for the petitioner that the decision of the lower appellate Court is wrong inasmuch as the plaintiffs have challenged it only in an order passed under Section 145 of the Criminal P. C. in which the possession of the defendant in respect of all these lands has been declared. The plaintiffs have got these lands settled by three separate documents but it was unblocked at that time and they possessed it. Subsequently they possessed separate portions and amicably divided the same. The defendant forcibly cm the ridge and amalgamated these lands with his own Jand. No in respect of ail the plaintiffs, there is one action of the defendant in that the defendant fres-passed into the lands of the plaintiffs by cutting the ridge and by amalgamating these lands with his own land. It is, therefore, contended that if each one of the plaintiffs would have brought a separate suit there would have been a common question of jaw and fact for decision in the suits, and, as such, it is covered by Order 1, Rule 1, Clause B of Civil P. C. Also the plaintiffs are jointlly interested against the same defendant having one cause of action against him and, as such, according to the provisions of Order 2, Rule 3, Civil P. C. the plaintiffs can file such a suit. It is further submitted that -he decision in the suit even if there would have been any defect or irregularity in the proceeding, does not affect the merits of she case or the jurisdiction of the Court and, as such, the provisions of Section 99 of Civil P. C. are complied with. It is further contended that the aforesaid decision in the case of Hadu Sahu (AIR 1964 Orissa 159) (supra) Section 99 of Civil P. C. was not taken into consideration in order to find out whether the decision in the suit affected the suits on merits or on the question of jurisdiction.
It is contended by the learned counsel for the opposite parties that as the plaintiffs have claimed adverse possession so the principles laid down in Hadu Sahu's case are applicable. But from the plaint, it appears that the plaintiffs have title to the property by virtue of their possession from the date of the lease deed in their favour, namely, 7-3-1942. There was no issue about adverse possession of the plaintiffs. On the other hand, an issue has been framed as to whether ihe defendant has perfected his title by adverse possession.
4. In Ramdhan Puri v. Chaudhury Lachmi Narain, AIR 1937 PC 42, it has been held that parties and causes of action, when once joined in the suit, there is no absolute right to have them struck out but it is discretionary with the Court to do so it thinks right. The mere fact of misjoinder is not by itself sufficient to entitle the defendant to have the proceedings set aside or action dismissed. Where the merits of the case have been satisfactorily disposed of by the trial Court in spite of the complication of the proceedings no objection as to misjoinder can be given effect to in appeal. For this principle. reliance has also been placed in Thomas v. Moore, (1918) 1 KB 555. It was held by the Supreme Court that when the trial Judge dealing with a principle of matters in one trial has ably and fairly discharged the heavy task and he arrived at a correct view of the fact, it is covered under Section 99 of the Code, of Civil Procedure. In that case also distinct causes of action against different places of defendants were joined.
5. The Privy Council in Muhammad Hussain Khan v. Kishva Nandan Sahai AIR 1937 PC 233. held that the rule embodied in Section 99 of Civil P. C. proceeds upon a sound principle and is calculated to promote justice, it can be applied. Therefore, it was held that it can also apply to cases before the Privy Council.
The case of Charukur China Venkatasubba Naidu v. Kandadi Sundara Varadacharlu, AIR 1950 Mad 12, was cited before the first appellate Court but it held that in view of Hadu Sahu's case (AIR J964 Orissa 159) of this Court, the principles laid down in the Madras case should not be followed. In that Madras case, the plaintiffs were 30 in number, sued to have their occupancy rights declared to several items of property detailed in plaint schedule. The main issues which the plaint and written statements raised were common to all the plaintiffs, ft was, however, contained in written statements, that some of the plaintiffs were not in actual possession of the lands that they claimed and actual extents claimed by some plaintiffs were also disputed. The trial Court held that the plaintiffs should be put to an election and only the plaintiffs who were jointly interested in particular items of the plaint schedule should be permitted to prosecute this suit. It was further held that the trial Court did not cxercise a proper discretion in practically referring the, 30 plaintiffs to 30 different suits in a case where outstanding common issues arose for determination. If there was a serious contest that a particular plaintiff was not in actual possession of the land he claimed as an occupancy royal the Court would be right in referring such a plaintiff to a separate suit. So also in the case of plaintiffs whose actual extents were disputed the Court would be right in referring such cuses for determination by a separate suit after finding on the main common issues raised in the present suit which can and should be tried togelher to avoid multiplicity of suits. This principle was laid down on the basis of the decision reported in Payne v. British Time Recorder Co. Ltd., (1921) 2 KB 1 where, it was observed, that it is impossible to lay down any rule as to how the discretion of the Court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time, !he Court will allow the joinder of plaintiifs or defendants, subject to his discretion as to how the action should be tried.
The case should be decided on its own merits and there is no hard and fast rule to be laid down in this connection.
The Assam High Court in Sitaram Agarwalla v. Rajendra Chandra Bal, AIR 1956 Assam 7, had to deal with a case where, A had executed a kabuliyat in favour of B and B transferred half of the tenancy to C, (the predecessor-in-interest of plaintiffs 2, 3 and 4) and the other half to plaintiff 1, all of whom after the period of lease had expired sued A for ejectment. Relying on the principle, that the requirements of Order 1. Rule 1 would be satisfied if any right to relief arises in favour of the plaintiffs out of the same act and if any common question of law or fact would arise if separate suits were instituted, the High Court held that the right of the plaintiffs to eject A arose from a single act of the original agreement of the tenancy. The fact thai the plaintiffs could sue for their separate parts did not preclude them from instituting one suit. The liability to ejectment under the terms of the Kabuliyat would be a question common to both suits, It is not necessary, that all questions arising in the case should be common to suits if plaintiff-co-sharers had instituted separate suits. Even if one question of law or fact common to both the suits could arise, there would be justification for joinder and the requirement of Order 1. Rule 1 would be satisfied, It was further held that even if there is misjoinder of plaintiffs and causes of action, there would be no justification for reversing the appellate decree as the misjoinder admittedly did not affect the jurisdiction of the Court. The aforesaid Assam decision and AIR 1937 PC 42 were considered along with other decisions by the Allahabad High Court in Shambhoo Dayal v. Chaudra Kali Dcvi. AIR 1964 All 350. It was held that under Order 1, Rule 1, it is possible for three different plaintiffs to be joined in one suit even onthe basis of different causes of action, provided any common question of law or fact would arise if the suit had been filed separately. Whether several plaintiffs should be permitted to join in a common suit is within the discretion of the trial Court and the appellate Court has been deprived of the power to interfere with this discretion. The appellate Court cannot reverse, substantially vary nor can remand in appeal any suit which is bad for mis-joinder of parlies unless the defect or irregularity affects the merits of the suit. A number of decisions were considered in para. 3 of that judgment. The decision of the Allahabad High Court was also followed by the Bombay High Court in Paikanna Vithoba Mamidwar, v. Laxminarayan Sukhdeo Dalya, AIR 1979 Bom 298. It was a partition case where plot of land was partitioned amongst two persons and jointly by common neighbour the case was filed. It was held that such a suit can be instituted without common question of fact and law relating to the common question of fact or relief was involved. In that case common question was relating to boundary of the plot. It was also held that any identity or cause of action or interest is not necessary. The previous decision of the Bombay High Court, namely, Krishna Laxman v. Narsingh rao, AIR 1973 Bom 358 was also followed. The Rajasthan High Court in Hari Ram Fatan Das v. Kanhaiyalal, AIR 1975 Raj 23 considered a case in which one Lal Mohammad, who is not a party to the case, was the owner of a plot of land which he let out to the defendants on a rent of Rs. 50/- per mensem. The four plaintiffs who joined in the suit alleged that the said Lal Mohammad sold four different portions of that plot to them by four separate sale deeds and asked the defendants by a registered notice to attorn to them. The plaintiffs thereafter instituted the suit for eviction of the defendants on the ground that they required their respective portions of plot for their reasonable and bona fide use and for recovery of arrear of rent The question was whether such a suit was maintainable. Relying on the cases of Sambhoo Dayal (AIR 1964 All 350) and Sitaram Agarwalla (AIR 1956 Assam 7) (supra), it was held that such a suit was maintainable. It was further held that before any persons may join as plaintiffs, a relief in respect of the 'same act or transaction' or 'series of acts or transactions' should be alleged to exist. This requirement is fulfilled in that case as the 'same act' is that relating to the lease of the plot of land by the original landlord. The common question of fact would arise on filing separate suits relating to the existence of tenancy granted by the original landlord and the suit was not bad by misjoinder of parties or causes of action. It was held in that suit that in Hadu Sahu's case (AIR 1964 Orissa 159) of this Court there was no common question of fact or law and Order 1, Rule 1 of the Civil P. C. was not complied with. This decision also distinguished the case of Haru. Bepari v. Khitish Bhusan Roy, AIR 1935 Cal 573.
In a recent decision of this Court in Khirod Chandra Mohanty v. Bansidhar Khatua, AIR 1978 Orissa 111, all the plaintiffs were jointly interested in setting aside an ex parte decree in an earlier suit. Plaintiffs, having similar causes of action, jointly interested in securing one decree against one and the same defendant. It was held that there was common question of law and facts arising for consideration and the plaintiffs could rightly and legally unite their causes of action in the same suit and the same was maintainable. This Court had taken notice of Order 1, Rule 1 of Civil P. C. and Order 2, Rule 2, C. P. C. The Himachal Pradesh High Court considered a case of alternative relief in a suit for pre-emption. Plaintiff No. 1 on one side and Plaintiffs Nos. 2 and 3 on other side claimed right of pre-emption in alternative. It was held in Dalip Singh v. Jaisi Ram, AIR 1981, Him Pra 497 that there was no misjoinder of parties.
While exercising the writ jurisdiction it has also been held that where the causes of action of several petitioners is based upon a common question, namely, though they were holding ad hoc appointments for more than eighteen months, they were required to sit at a written examination and had not been called to the viva voce test on the plea of having failed in the written examination. The opposite parties are common so far as each of the petitioners is concerned. Keeping the provisions of Order 1 of Civil P. C. in view, these petitioners could file one writ petition as the law is fairly settled that in such circumstances, a common application would be tenable. (See Rama Chandra Pradhan v. Union of India (1980) 49 Cut Lt 266).
The Patna High Court considered a case where was a decree ordering a person to pay maintenance to the mother as well as to the widow of a deceased. It was held that the two women could jointly sue for arrears of maintenance and it was not necessary that they should file separate suits. (See Mt. Kuader Kuer v. Lachman Prasad Sahu, AIR 1933 Pat 644).
In Janki Rai v. Ram Ran Bijaya Prasad Singh, AIR 1940 Pat 145, it was held that under Order 1, Rule 9 suits are not to be dismissed for misjoinder or non-joinder of parties and in case of misjoinder of causes of action the Court can in proper cases call on the plaintiff to amend his plaint by limiting the relief claimed to what he is entitled to in respect of one cause of action so as to avoid embarrassment When this procedure is followed the plaintiff can of course bring a separate suit In respect of the other cause or cause of action. But when this course is not taken nothing turns on the fact that it might have been taken. Once a multifaricus suit has been allowed to proceed and has resulted in a decree the defect is considered to nave been waived and is irrelevant Also the decree in no way affects the suit on merits.
6. It would thus appear that the concensus view is that each case depends on its own facts. If the relief claimed by different plaintiffs is against one person relating to the one cause committed by the defendant is challenged and all the plaintiffs are aggrieved by such action of the defendant, they can file one suit and such a suit will not be bit by multifariousness.
As has been held by the Patna High Court if the defendant does not make any challenge in the trial Court as to the multifariousness and allows a decree to be passed and if the decree does not affect the suit on merits in that case it would be deemed that be has waived.
The case of Hadu Sahu (AIR 1964 Orissa 159) of this Court has not taken into consideration the provisions of Section 99 of the Civil P. C. No overt act to have been allegedly committed by the State after the order passed in the proceeding against the plaintiffs of that suit and there was no common question. Therefore, that decision should not be taken as a precedent for this suit and that decision should be confined to the facts and circumstances of that particular case. The order of remand cannot be sustained in view of the discussions made above.
7. It is contended by the learned counsel for the opposite party that as the plaintiffs have claimed right on adverse possession the principles of Hadu Sahu's case are applicable. I have already discussed above that the plaintiffs in this case have challenged the action of the defendant when be cut the ridge and amalgamated lands of all the plaintiffs with his own land, the plaintiffs an jointly aggrieved by the particular action of the defendani. The suit involves common question of the lease deeds on the same day in favour of the plaintiffs and also the question of surrender of the lands in favour of the lessor of the plaintiffs. Moreover the issue thai has been framed and trial has been gone into without any objection by the defendant, was, whether the defendant has perfected his title by adverse possession. Accordingly, I held that this contention of the opposite party it not acceptable. Reliance has also been placed by the opposite parties on the case of Haru Bepati v. Kshitish Ehusan Roy, AIR 1935 Cal 573. This case has been distinguished in Hari Ram Fatan Das v. Kanhaiya Lal, AIR 1975 Raj 23. This Calcutta case was not a decision as to whether there should be separate suits. The question involved was the question of court-fees to be paid. Hence it is of no help. Reliance has also been placed on Lobsang Khampa v. Sunam Ram, AIR 1977 Him Pra 23. That decision follows Hadu Sahu's case of this Court and I have already discussed about Hadu Sahu's case, which cannot be considered as a precedent for this case. Opposite party also relies on Ramjas Agarwala v. Linton Molesworth & Co., AIR 1923 Pat 411. That, was a case in which the plaintiff No. 1 acquired some property from several persons and plaintiff No. 2 acquired property by a sale deed from some out of those persons and in that case the interest of plaintiff No. 1 has nothing to do with the property and interest of plaintiff No. 2 and, as such, It was held that there was no common question and they cannot join in the same suit Reliance has also been placed on Mansukhlal Dhanji Vora v. Jupiter Airways Ltd., AIR 1953 Bom 112. This was different type of case. In this case also it was held that each case should be differently approached and analysed. It was a case in which the question of money and allotment of shares of the company to different share-holders and the interest of each share-holder was different from the other share-holders relating to allotment of shares. Thus, (be principles laid down there are not applicable 1c the present case.
8. On the aforesaid analysts, I held that the lower appellate Court simply relying on Hadu Sahu's case (AIR 1964 Orissa 159) has not properly exercised its jurisdiction to the facts of this case inasmuch as the principles laid down in that case are not applicable to the facts and circumstances of the present case. There is common question of facts and circumstances of all the plaintiffs against a particular action of the defendant by whose overt act all the plaintiffs suffer and are aggrieved, namely, when the defendant cut the ridge and amalgamated these lands with his own lands.
9. In the result, the revision is allowed. The judgment and decree of the lower appllate Court set aside. The case is remanded to the lower appellate Court for disposal on merits. Cost to abide final result of the Appeal.