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Aiyaru Muppan Vs. Vellaya Nandan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in6Ind.Cas.15
AppellantAiyaru Muppan
RespondentVellaya Nandan and ors.
Cases ReferredSubramania Ayyar v. King
Excerpt:
misjoinder of causes of action - suit in ejectment--plaintiffs owning separate parcels of land--trespass--title by adverse possession--irregularity--civil procedure code (act xiv of 1882j), section 578--civil procedure code (act v of 1908), section 99. - - it is argued for the appellant that the suit is bad for misjoinder of causes of action......munsif. but the subordinate judge without finally deciding that question has found a title by adverse possession for more than 12 years in their favour. it is argued for the appellant that the suit is bad for misjoinder of causes of action. the 1st plaintiff and plaintiffs nos. 2 to 4 claim different lands and their title as found is by adverse possession of their respective portions. the injury to their rights is by the defendants' trespass. although the trespass might have been at the same time, the right being separate, the cause of action must be held to be separate. the authorities cited by mr. rangachariar are decisive of the question. the decision of the house of lords in smurthwaite v. hannay (1894) a.c. 494 : 63 l.j.q.b. 737 : 6 ra. 299 : 71 l.t. 157 : 43 w.r. 113 : 7 asp......
Judgment:

1. It is found by the Sub-Crdinate Judge that the 1st plaintiff and plaintiffs Nos. 2 to 4 are divided in interest, and have been in possession of separate portions of the disputed land. The plaintiffs allege title under a sale in 1878. This was negatived by the District Munsif. But the Subordinate Judge without finally deciding that question has found a title by adverse possession for more than 12 years in their favour. It is argued for the appellant that the suit is bad for misjoinder of causes of action. The 1st plaintiff and plaintiffs Nos. 2 to 4 claim different lands and their title as found is by adverse possession of their respective portions. The injury to their rights is by the defendants' trespass. Although the trespass might have been at the same time, the right being separate, the cause of action must be held to be separate. The authorities cited by Mr. Rangachariar are decisive of the question. The decision of the House of Lords in Smurthwaite v. Hannay (1894) A.C. 494 : 63 L.J.Q.B. 737 : 6 Ra. 299 : 71 L.T. 157 : 43 W.R. 113 : 7 Asp. M.C. 485, referred to in Subramania Ayyar v. King-Emperor 25 M. 61 and in P. and O Company v. Tsune Kijima (1895) L.R.A.C. 661 : 64 L.J.P.C. 146 : 11 R. 508 : 73 L.T. 37 : 8 Asp. M.C. 23, are clear authorities in support of the appellant's contention. Bach person being separate in the eye of the law, any act of the defendant affecting the separate right of each gives to each a separate cause of action. The same principle was laid down in Garter v. Rigby and Company (1896) L.R. 2Q.B. 113 : 65 L.J.Q.B. 537 74 L.T. 744 : 44 W.R. 566 : 60 J.P. 58l. For Indian cases, we, may refer to Ramanuja v. Devanayaka 8 M. 361, Ali Sevang v. Beadon 11 C. 524 and Salima Bibi v. Sheikh Muhammad 18 A. 131. The decisions cited by Mr. Seshagiri Aiyar, who appeared for the responents, are not in point. They are all cases either of common title or alternative claims arising upon one event. Reference was made to the recent decision of the Privy Council in Rup Narain v. Gopal Devi 36 I.A. 103 : 3 Ind. Cas. 382 : 6 A.L.J. 567 : 10 Cri.L.J. 58 : 13 C.W.N. 920 : 5 M.L.T. 423 : 11 Bom, L.R. 833 : 36 Ca. 780 : 19 M.L.J. 548 : 93 P.R. 1909. It was a suit by reversioners in respect of alienations by the widow. Their Lordships of the Judicial Committee were disposed to regard the cause of action as one. But even if it was more than one, they were inclined to hold that Section 578 of the Civil Procedure Code of 1882, cured the irregularity in the joinder of several causes of action, for the parties had not been prejudiced on the merits. Assuming this to be a pronouncement by that tribunal that all misjoinder of causes of action could be cured under Section 578, if there was no prejudice on the merits, a proposition to which we are not prepared to assent in the face of Smurthwaite v. Hannay (1894) A.C. 494 : 63 L.J.Q.B. 737 : 6 R. 299 : 71 L.T. 157 : 43 W.R. 113 : 7 Asp. M.C. 485, where the misjoinder was described by Lord Herschell, as much more than a mere irregularity and it was quoted with approval by their Lorships in Subramania Ayyar v. King-Emperor 25 M. 61. We are still inclined to think that the defendants must be held to have been prejudiced by the joinder of the causes of action.

2. It is sufficient to draw attention to the fact that the evidence of adverse possession by the 1st plaintiff would not be evidence of adverse possession in favour of plaintiffs Nos. 2 to 4 and vice tersa. The Subordinate Judge has considered the whole of the evidence as to adverse possession as bearing on the rights of all the plaintiffs. Exhibits B and D which relate to the 1st plaintiff's lands would have no bearing on the possession of plaintiffs Nos. 2 to 4. We hold, therefore, that there has been a misjoinder of causes of action and that the defendants have been materially prejudiced by such misjoinder. But we do not think that we are bound to dismiss the suit on that account. The plea of misjoinder was not raised in the written statement or at the time of the settlement of issues. An additional issue was framed on that question on the 24th February 1905, when the plaintiff's 1st witness was under examination.

3. Moreover, Section 99 of the new Code applies to this case. We think the interests of justice will be sufficiently met by directing the Subordinate Judge to return fresh findings on the question of title by adverse possession in the 1st plaintiff, and plaintiffs Nos. 2 to 4 separately as regards the lands respectively claimed by them. The findings will be returned on the evidence on record in six weeks. Seven days will be allowed for filing objections.


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