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Chava Lakshmidevamma Vs. Chava Nagayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported in(1948)2MLJ362
AppellantChava Lakshmidevamma
RespondentChava Nagayya and ors.
Cases ReferredKrishnaswami Naidu v. Municipal Council
Excerpt:
- - 5. that this court has jurisdiction to set aside under section 115, civil procedure code, erroneous orders passed by a subordinate court under order 1, rule 10 is well settled and needs no authority. in the second case it was in effect the action of the government itself of which the plaintiff complained......laid by the plaintiff-petitioner in this case was specifically for a declaration of a title to the suit properties and for the consequential relief of a permanent injunction. that title of the plaintiff to the suit properties was directly and substantially in issue. i am unable to see any real substance in the contention of the learned advocate for the petitioner that the real relief claimed in the suit was the injunction, and that the determination of the question of title was subsidiary to the grant of the main relief of injunction. the question of title was put directly in issue on the pleadings of the plaintiff and the defendants whom she originally impleaded.7. it was mainly on the observations of srinivasa ayyangar, j., in sri mahant prayaga doss v. board of commissioners for hindu.....
Judgment:

Rajagopalan, J.

1. The plaintiff-petitioner seeks to set aside in revision the order of the learned District Munsiff of Guntur directing under Order 1, Rule 10 that the fourth defendant, who had applied there for, be impleaded as a party defendant to the suit.

2. The plaintiff laid the suit in the first instance against the three defendants, her deceased husband's brothers. It was common ground that defendants 1 to 3 were divided in status from the plaintiff's husband. The plaintiff claimed that on the death of her husband she succeeded to her husband's properties. After averring in paragraph (5) of the plaint that the defendants threatened to interfere with her possession, and that it

therefore became necessary to institute the suit for a declaration of the rights of the plaintiff in the suit property

and for a permanent injunction restraining the defendants from interfering with the plaintiff, the plaintiff prayed for a decree

(a) declaring that the plaintiff has got rights of a Hindu widow in the suit property' and (b) 'for a permanent injunction restraining the defendants and their persons from causing obstruction or hindrance to the plaintiff and her persons.

3. The defendants denied that the plaintiff was entitled to succeed to her husband's properties, and that she was in possession of those properties. One of the pleas advanced was jus tertii. The second defendant alleged that his son, subsequently impleaded as the fourth defendant, was the adopted son of the plaintiff's husband, and that on the latter's death the adopted son succeeded to and was in possession. of his adoptive father's properties. At the same time, that is, even before the stage of settlement of issues was reached, the fourth defendant applied to be impleaded as a party defendant to the suit.

4. It was not the case of any one that the fourth defendant was a necessary party to the suit as laid by the plaintiff within the meaning of Order 1, Rule 10. Though there was no specific finding to that effect in the order of the learned District Munsiff, it should be obvious that it was on the ground that the fourth defendant was a proper party that the learned District Munsiff ordered that the fourth defendant be added as a party defendant. The summary of the pleadings set out above should by itself suffice to uphold that implied finding of the learned District Munsiff. Since, however, the petition was argued at considerable length by both parties I shall deal with the contentions advanced during arguments.

5. That this Court has jurisdiction to set aside under Section 115, Civil Procedure Code, erroneous orders passed by a subordinate Court under Order 1, Rule 10 is well settled and needs no authority. The petitioner's advocate referred to Pandit Rup Chand v. Fateh Chand (1910) 6 I.C. 36. , but that, however, dealt with the addition of a party who, the Court found, was neither a necessary nor a proper party. In Subramania v. Anantakrishnaswami : AIR1932Mad688 , the suit was one in ejectment filed on the basis of a lease deed. Ananthakrishna Aiyar, J., held that persons claiming adverse rights to the plaintiff's title should not be made parties in the absence of any special circumstances. That has no direct application to the facts in issue in the present case.

6. Subbaiya Pandaram v. Mohammad Musthappa Maracayar (1916)32 M.L.J. 85 has no direct application either. It was held in that case that a person in possession without a title had the right to maintain his possession against all the world except the rightful owner, and that to such a suit proof by the defendant that the real title was outstanding in a third party was no defence. The suit as laid by the plaintiff-petitioner in this case was specifically for a declaration of a title to the suit properties and for the consequential relief of a permanent injunction. That title of the plaintiff to the suit properties was directly and substantially in issue. I am unable to see any real substance in the contention of the learned advocate for the petitioner that the real relief claimed in the suit was the injunction, and that the determination of the question of title was subsidiary to the grant of the main relief of injunction. The question of title was put directly in issue on the pleadings of the plaintiff and the defendants whom she originally impleaded.

7. It was mainly on the observations of Srinivasa Ayyangar, J., in Sri Mahant Prayaga Doss v. Board of Commissioners for Hindu Religious Endowments, Madras : (1926)51MLJ148 , that the learned advocate for the petitioner relied in support of his contention that the lower Court had no jurisdiction at all to implead the fourth defendant in the suit. The respondents' advocate pointed out that in the Secretary of State v. Murugesa Mudaliar : AIR1929Mad443 , Venkatasubba Rao, J., doubted the correctness of the principles laid down by Srinivasa Ayyangar, J., in Sri Mahant Prayaga Doss v. Board of Commissioners for Hindu Religious Endowments, Madras : (1926)51MLJ148 Whether there was a real conflict between these two decisions can be but of academic interest now in view of the observations of Gwyer, C.J., in The United Provinces v. Mst. Atiqa Begum (1941) 1 M.L.J. 65 : 3 F.L.J. 97 : (1940) F.C.R. 110. Gwyer, C.J., observed:

It is not clear to me that Srinivasa Ayyangar, J., would have come to a conclusion contrary to that of his brother Judge, if the later case (Secretary of State v. Murugesa Mudaliar A.I.R. 1929 Mad. 443) had come before him; for different principles appear to be involved in the two cases. The question of the validity of the Act could certainly have been decided in the absence of the Secretary of State in the first case, though it might have been convenient to have him represented before the Court. In the second case it was in effect the action of the Government itself of which the plaintiff complained. But it is obvious that in the later case a wider view was taken of the powers conferred by Order 1, Rule 10, and stress was laid rather upon the words 'effectually and completely to adjudicate upon and settle all the questions involved in the suit ' than upon the words 'necessary to enable the Court' which preceded them.

8. In view of these observations of Gwyer, C.J., I do not think it is necessary to consider in detail the other cases in which the learned Judges of this Court from time to time approved of the principles laid down by Venkatasubba Rao, J., in Secretary of State v. Murugesa Mudaliar : AIR1929Mad443 . See Sivarama Pillai v. Ganesarathnam Pillai : AIR1935Mad353 , Anjaneya Sastri v. Kothandapani : AIR1936Mad449 , Vanjiappa Goundan v. Annamalai Chettiar : AIR1940Mad69 and Mangacharyulu v. Balarama Krishnamackaryulu : AIR1940Mad225 . There is only one observation that I need make at this stage. There was no real question of jus tertii as such in Sri Mahant Prayaga Doss v. Board of Commissioners for Hindu Religious Endowments, Madras : (1926)51MLJ148 , no right as such of the Secretary of State was in jeopardy in that litigation. Krishnaswami Naidu v. Municipal Council, Bellary : AIR1937Mad641 , dealt with the addition of a party considered to be a necessary party within the meaning of Order 1, Rule 10.

9. To reiterate, the very summary of the pleadings in the present suit, wherein the issue of the plaintiff's title to and possession of the suit properties was raised showed that the question of possession was closely linked up with that of title, and that both the issues of title and possession arose for determination. The defendants pleaded that the plaintiff had no title to and was not in possession of the suit properties, and that the fourth defendant was the person who had both title and. possession. The Court, even without impleading the fourth defendant, could not possibly avoid a decision of the questions, whether it was the plaintiff or the fourth defendant that had title to the properties, and whether it was the plaintiff or the fourth defendant that was in possession of the properties. No doubt the plaintiff was dominus litus. In the plaint as she framed it no question of adoption could arise for determination. It may be that the fourth defendant has secured a cheap remedy in having his status as adopted son litigated in this suit filed by the plaintiff; but if he has a legal right to do it, that right cannot be taken away merely on the ground that the plaintiff was dominus litus and did not seek as against the fourth defendant any relief or any adjudication of the rights of the fourth defendant. On the pleadings of the plaintiff and defendants I to 3 themselves the Court was right in holding that the fourth defendant was a proper party whose 'presence was necessary for the determination of the real matter in dispute' within the meaning of Order 1, Rule 10.

10. Even were the question only whether the learned District Munsiff exercised his discretion rightly in directing the addition of the fourth defendant--and that should be considered quite independent of the question of jurisdiction--there should be no occasion at all in the circumstances of this case to interfere in revision with the discretion exercised by him.

11. In the circumstances of this case the lower Court was right in ordering that the fourth defendant be impleaded as party defendant. The petition fails and is dismissed with costs.


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