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T. Panchapakesan (Died) and ors. Vs. Peria Thambi Naicker (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 435 of 1965 and Memo of Cross-objections
Judge
Reported inAIR1973Mad133
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rules 8 and 9; Madras Court-fees and Suits Valuation Act - Sections 37(2)
AppellantT. Panchapakesan (Died) and ors.
RespondentPeria Thambi Naicker (Died) and ors.
Cases ReferredIn Subbaraya Sastri v. Seetharamaswamy
Excerpt:
.....made in the absence of an interested party and the court will be justified in dismissing a suit if the necessary party is not impleaded. - -..........the withdrawal of the suit and filing a fresh suit on the same cause of action impleading all the parties interested. after, taking time and after consulting his clients, the learned counsel for the plaintiffs represented that he was not in a position to withdraw the suit. nor was any request made for impleading the parties who have not been impleaded in the suit. under those circumstances, the appeal is allowed, the decree of the trial court is set aside and the suit is dismissed with costs of the first defendant in both the courts.9. since we have held that the suit itself was liable to be dismissed on account of other persons, admittedly interested in the suit property not having been impleaded, the memorandum of cross-objections filed by the plaintiffs is dismissed. no costs.10......
Judgment:
1. This first defendant in O. S. No. 70 of 1960 on the file of the Subordinate Judge's court, Chingleput, is the appellant. The eleven plaintiffs-respondents instituted the suit for a declaration that they are entitled to certain plots marked in the plaint plan and situated in S. No. 140 of Selayur village and for consequential permanent injunction restraining defendants 1, 9 and 10, from interfering with their possession of the said plots, or in the alternative, for partition and separate possession of 18/32 shares. The land in question measures 2.82 acres. It was originally a carpenter inam. It was resumed by the Government on 17-12-1935, and the Collector of Chingleput appears to have passed an order and issued patta in respect of this land. The terms of the order are not known as it is not produced. The plaintiffs claimed that on 21-7-1950, at a gathering of the mirasidars of the village, a partition was effected, that at that partition the plots mentioned by them were allotted to their shares and therefore they were entitled to the main relief of declaration of their title to the said plots and for the consequential injunction against defendants 1, 9 and 10, who are said to be alleged that they were in joint possession and in any event deemed in law to be in joint possession with the other sharers.

2. The first defendant claimed to have purchased the entire suit property in court auction in execution of a mortgage decree in O. S. No. 14 of l1953 on the file of the District Munsif court, Poonamalle. That was a suit instituted by the second defendant on a mortgage, a copy of which is Ex. A-1, dated 15-10-1952. That was executed by 15 villagers in favor of the second defendant for a sum of Rs. 3,500/-. The case of the first defendant was that the said mortgage was executed for the purpose of meeting the expenses in connection with a litigation instituted by a third party and that the villagers had to borrow the sum from the second defendant for the purpose of meeting the expenses and that therefore the mortgage was binding upon the entire villagers. That mortgage suit was instituted against the villagers under Order 1, Rule 8, Civil Procedure Code. It was in execution of that decree the first defendant happened to become the court auction purchaser. The first defendant contended that after resumption, the land was granted in patta not only in favor of the mirasdars but in favor of the entire body of villagers. The main defense of the first defendant was that on account of the court sale the plaintiffs had no subsisting title.

3. On a consideration of the evidence the trial Judge found that the mirasidars of the village alone were entitled to the suit land and that the decree in the mortgage suit in which the first defendant claimed to have become the court auction purchaser was not valid and binding upon the plaintiffs inasmuch as they were not parties to the mortgage suit and that therefore their right was not affected. The trial Judge further found that the partition arrangement set up by the plaintiffs was not made out, that the plaintiffs were not entitled to a decree for partition in the absence of the other persons entitled to shares in the land and that they were entitled only to a declaration of their right to be in joint possession with the first defendant and the other gramathars (Giramathargal) which term, according to the learned Judge, means only the mirasidars. It is against this decree that the first defendant has filed this appeal.

4. In view of the order which we propose to pass, it is not necessary to set out the several contentions that were advanced on behalf of the appellant. According to the plaintiffs, the villages consists of 32 shares and they are entitled to 18 shares. According to them, the first defendant had become entitled only to three of 32 shares which alone according to them belonged to the persons who executed the mortgage Ex. A.1. The further case of the plaintiffs is that defendants 3 to 8 are entitled to 8 shares. Thus, even according to the plaintiffs, three more shares remain and the persons interested in those shares are not made parties to the suit. It is in this view that the trial Judge has observed in paragraph 32 of his judgment that having full knowledge of the fact that other sharers are also entitled to or interested in getting a partition of the property, the plaintiffs have not made those persons as parties to the suit. It is also the finding of the trial judge based on the evidence adduced by the plaintiffs regarding the quantum held by the various pattadars or mirasidars that the total exceeds unity. The learned trial Judge further found that the plaintiffs had not properly established their claim as regards the quantum. In view of these conclusions, we are of the view that the trial court erred in granting a decree declaring the right of the plaintiffs to be in joint possession along with the first defendant and the other villagers. This being a suit based upon an alleged partition, which has not been established, and, in the alternative, being a suit for partition, we are clearly of the opinion that all the persons interested in the property should have been impleaded as parties. Though this plea of non-joinder was not raised by the defendants in their written statement it has been taken as one of the grounds in the appeal and we allowed this to be raised, as it is admitted by the plaintiffs themselves that there are other sharers. The question then is whether the decree granted by the trial Court can be sustained.

5. As we have already pointed out, the plaintiffs themselves in paragraph 12 of their plaint alleged that they were in joint possession of the suit property along with the other defendants, who according to them, are co-shares, and valued the suit under Section 37(2) of the Madras Court-fees and Suits Valuation Act and paid court-fee accordingly. But, curiously, in spite of this position, the trial court granted a decree declaring the right of the plaintiffs to be in possession in common with the first defendant and other villagers. We are of the view that this decree cannot be sustained.

6. No doubt, Order 1, Rule 9, Civil Procedure Code provides that no suit shall be defeated by reason of the mis-joinder 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 question arose before a Bench of the Calcutta High Court in Haran Sheik v. Rameshchandra, AIR 1921 Cal 622, as to whether notwithstanding this provision, the Court had power to dismiss a suit in which no effective decree can be made in the absence of an interested party. That was a suit in which the plaintiffs sued in a representative capacity for a declaration of a right of way as a village road over the land mentioned in the plaint and for removal of an obstruction thereon. In the trial court, an objection was taken that one of the persons interested in the land over which the relief was asked for was not made a party to the suit. The trial Court did not give weight to this objection and granted the relief. In appeal, a Bench of the Calcutta High Court, observed, after referring to Order 1, Rule 9, Civil Procedure Code as follows:--

"But notwithstanding this provisions, it is plain that the court will not entertain a suit in which no effective decree can be made in the absence of an interested party. For instance, in a suit for partition of joint property, if it is established that one of the owners has not been joined as a party, the court will not proceed to make a decree; the decree will not be operative, as it must deal with the share of the absent person interested, who cannot be bound thereby. Similarly, in a case like the present, where the decree is to made for declaration of a right of way as a village road over the disputed land and for removal of an obstruction thereon, if it is discovered that a person interested in the servient tenement has not been made a party to the suit, the court will not proceed to make a decree. The decree, if made, must be infructuous, if a suit is instituted by the absent person for an injunction to restrain the successful plaintiff from executing the decree, there will be no possible answer to the prayer".

In Subbaraya Sastri v. Seetharamaswamy, 65 Mad LJ 290 = (AIR 1933 Mad 664), a learned Singe Judge of this court had to deal with a case of the non-joinder of a Municipality in a suit in which the Municipality was interested. On an elaborate review of the case law and after referring to certain passages in Bullen and Leake's 'Precedents of Pleadings' the learned Judge found that notwithstanding Order 1, Rule 9, Civil Procedure Code, the court will be justified in dismissing a suit if the necessary party is not impleaded.

7. The same principle applies to this case also having regard to the relief's prayed for by the plaintiffs. The question as to whether there was a partition, as contended by the plaintiffs, is one in which all the sharers are interested. Even with regard to the plea of injunction which the plaintiffs have asked for, all the persons interested should be made parties. Even with regard to the limited rights of joint possession, all the persons interested should be made parties, for it may be open to those who are not made parties to show that the plaintiffs have no subsisting title. Under these circumstances, we are clearly of the opinion that the lower court erred in granting a decree which in fact has not been asked for by the plaintiffs themselves in view of their allegations. In this view, we do not express any opinion on the various questions that arise for consideration in this appeal, in the absence of the order said to have been passed by the Collector after the land was resumed.

8. We pointed out this position to the learned counsel appearing for the plaintiffs and gave him time to consider the withdrawal of the suit and filing a fresh suit on the same cause of action impleading all the parties interested. After, taking time and after consulting his clients, the learned counsel for the plaintiffs represented that he was not in a position to withdraw the suit. Nor was any request made for impleading the parties who have not been impleaded in the suit. Under those circumstances, the appeal is allowed, the decree of the trial court is set aside and the suit is dismissed with costs of the first defendant in both the courts.

9. Since we have held that the suit itself was liable to be dismissed on account of other persons, admittedly interested in the suit property not having been impleaded, the memorandum of cross-objections filed by the plaintiffs is dismissed. No costs.

10. Appeal allowed.


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