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Durga Dasi and ors. Vs. Sudhendu Mohun Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal435
AppellantDurga Dasi and ors.
RespondentSudhendu Mohun Roy and ors.
Excerpt:
misjoinder - plea of misjoinder, when sustainable--suit against several persons claiming under different titles, effect of--civil procedure code, sections 31 and 53. - .....second court did not consider it necessary to determine it because, in the opinion of the district judge, the plaintiffs' case in any view was properly framed. after considering the authorities upon which the district judge relies, and numerous other cases which have been cited by the learned counsel for the appellants, none of which are opposed to the contrary view, we cannot concur in the opinion arrived at by the district judge a separata suit should have been brought against each separate set of defendants who held parcels of land against the title set up by the plaintiffs by reason of an adverse title. the plaintiffs-respondents' pleader asks us to remand the case in order that his clients may have a finding from the lower appellate court whether the suits were rightly brought.....
Judgment:

Prinsep and Beverley, JJ.

1. The plaintiffs in these two suits are purchasers at a sale held for arrears of Government revenue, and they sue for possession of a tract of chur land which they say belongs to their estate and forms mouzah Kusundia. They also state that this land was measured and depicted in the Government Revenue Survey as portion of that estate; that after wards it diluviated and has now re-formed on the same site. The plain tiffs further state that, on attempting to take possession of this land, they have been resisted by the defendants, and they accordingly bring this suit against a large number of persons, numbering 67, who, they say, have acted in concert and collusively. An objection was taken in the written statement of the defendants that the lands were obscurely described in the plaint, that the suit has been wrongly brought against several persons who claim to hold portions of this land under different titles, and the defendants also disputed the correctness of the survey maps on which the plaintiffs relied.

2. In the first Court, the only issue tried was that of multifariousness, and in order to ascertain the exact position of the parties, an Amin was directed to ascertain and show on a map the lands claimed by the plaintiff's and those portions which were claimed by the different sets of defendants separately from one another. The Subordinate Judge before trying the case gave the plaintiffs an opportunity of amending their plaint by withdrawing the suit as against any particular sets of defendants. But the plaintiffs persisted in the trial of the suit as it was brought, and preferred to abide by the consequences. The Subordinate Judge first of all found on the evidence that the defendants did not combine and make common cause, in preventing the plaintiffs from taking possession. He also found that when the plaintiffs went to take possession and asked for kabuliyats from the tenants they were told that the tenants held the lands under different sets of defend ants, that is to say, that they had no community of interest. He accordingly held that the suits were bad for multifariousness and dismissed them.

3. In appeal, the District Judge considered that no inconvenience would he caused to defendants by the suits being tried in the form in which they were brought. He further remarked that the plaintiff's ''had no means of ascertaining the quantity and boundaries of the land held by each separate defendant which they would have been required to specify if they brought separate suits.' The District Judge accordingly remanded the cases for trial on the merits.

4. It is exceedingly undesirable that any suit should fail on account of any technical objection such as is now before us. But at the same time, when such an objection is raised, as in the present suits at the first hearing and at the earliest opportunity, and when serious inconvenience and expense is likely to be caused to defendants by suits such as have been found by the first Court to have been brought, it is impossible for the Courts not to adjudicate upon the objection and to relieve the defendants from the inconvenience and expense to which they must be subjected. No apportionment of costs in the decree which may be passed, if such a suit be tried out, can put the defendants in the position which they were entitled to hold in a suit properly brought They are therefore entitled to require the Courts to relieve them from the certain inconvenience and expense to which the irregularity, if found to exist, must subject them. The plaintiffs' (respondents') pleader has attempted to support the manner in which the suits have been brought. Ho contends that the only issue for trial between the parties was the correctness of the survey proceedings under which this land was marked off as forming a portion of the estate purchased by the plaintiffs. We think that this is not a correct representation of the main issues in the suit, and that on the face of the plaint many other issues must necessarily arise. It is clear from the findings before us that all the defendants had no community of interest in the present suit. It does not appear when they entered upon the lands claimed by the plaintiffs, but it is complained that, when the plaintiffs sought to enter upon the lands, they were opposed by the defendants, who were already in occupation of them. The fact that the plaintiff's' title was acquired by auction sale, and that they were unable to obtain possession of the lands which they maintain they purchased, does not give them the right to join in one suit all the persons who obstruct their possession, unless they can show that those persons acted in concert or under some common title. The first Court distinctly finds against the plaintiffs on the evidence on this point. The second Court did not consider it necessary to determine it because, in the opinion of the District Judge, the plaintiffs' case in any view was properly framed. After considering the authorities upon which the District Judge relies, and numerous other cases which have been cited by the learned Counsel for the appellants, none of which are opposed to the contrary view, we cannot concur in the opinion arrived at by the District Judge A separata suit should have been brought against each separate set of defendants who held parcels of land against the title set up by the plaintiffs by reason of an adverse title. The plaintiffs-respondents' pleader asks us to remand the case in order that his clients may have a finding from the lower Appellate Court whether the suits were rightly brought against the defendants on the ground that they acted in concert and in collusion in obstructing their possession. The lower Appellate Court has expressed no opinion on this point; but after hearing the evidence on the record read by the learned Counsel for the appellants, we think that there is no evidence in support of this allegation. It is, therefore, altogether unnecessary to remand the case for this purpose, or to put the parties to the expense of further proceedings, which can have only one result. We may observe that, with regard to Sections 31 and 53 of the Civil Procedure Code, we think that the proper order on the findings of the first Court would have been not to dismiss the suits but to order that the plaints be rejected as being bad in form, such as would not entitle the plaintiffs to claim the suits to be triad. The result is that the orders of the lower Courts must be set aside. The plaints will be rejected and the plaintiff's will pay the costs throughout.


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