Bijayesh Mukherji, J.
1. The two thika tenants, Basant Pandcy and Kanai Pandcy, sons of late Ishwar Pandey, have obtained this rule under Article 227 of the Constitution for setting aside an appellate order of affirmance, by which their eviction has been directed under Section 3, Clauses (iv) and (v), of the Calcutta Thika Tenancy Act, 2 of 1949. Clause (iv) makes a thika tenant liable to ejectment from his holding, inter alia, on the ground that the land is required by the landlord for the purpose of building. Likewise, Clause (v) makes a thika tenant liable to ejectment on the ground, amongst other things, that he has failed himself to occupy a major part of the holding for more than six consecutive months.
2. Mr. Ranjit Banerjee, appearing in support of the rule, does not press the pointrounded on Clause (v). He does not, not because it lacks substance, as he says, but because it will be futile, in view of the findings of fact that all the essential ingredients to bring the case under Clause (v) are there: (i) means of the landlords, (ii) a plan of the building to be, and (iii) need of the landlords for building, -- findings, be concedes with his usual fairness, he cannot assail in an application under Article 227 of the Constitution. But he concludes, even such findings cannot take the landlords opposite party far, as the lis is bound to fail for an inherent and incurable defect: non-joinder of a necessary party, namely, Biswanath, son of Basanta Pandey, one of the two petitioners before me, as also non-issue of ejectment notice upon him, they all father, sou, uncle Kanai and others--constituting a family governed by the Mitakshara law. Such then is the only point : defect of parties : I have been called upon to decide.
3. The learned appellate tribunal is presented with this point Loo. But he dismisses it an the ground that nowhere in the written objection the two thika tenants, now the petitioners before me, qua opposite party in the trial forum, specify the name of Biswanath as a necessary party, denying thereby an opportunity to the landlords, the petitioners there and the opposite party here, to meet such case at the trial. All they do is to indulge in 'liquid' averments that the lis is bad for non-joinder of necessary parties, or that the notice of ejectment is bad at law, served as it has not been to 'all representing the estate of the original thika tenant, late Iswar Pandey. The learned tribunal of appeal, therefore, concludes that a vague pleading as this is no pleading, and beneath its notice too.
4. The learned appellate tribunal has presumably at the back of its mind the principle of Order 8, Rule 2, of the Procedure Code (5 of 1908), which prescribes inter alia that the defendant must raise by his pleading all matters which show the suit not to be maintainable, and all such rounds of defence as, if not raised, would c likely to take the opposite party by surprise; no less the principle of Order 1, Rule 33, which enjoins an objection as to non-joinder of parties to be taken at the earliest possible opportunity, failing which such objection shall be deemed to have been waived, Mr. Ranjit Banerjee contends that an approach, as the one the appellate tribunal makes, can hardly be availing in an action in ejectment or, say, in a suit for partition. And he cites two authorities, one of which is an ancient decision of the Judicial Committee of the Privy Council: Dhurm Das Pandey v. Mt. Shama Soondari Dibiya, (1843) 3 Moo Ind App 229 (PC). That was a case 'of a very intricate and perplexing nature,' making it 'utterly impossible to explain all the facts that appear in evidence . And what happened, amongst other things, was 'that, pending the suit, an act of adoption was executed by the Respondent (the plaintiff mother), whereby the whole property was divested from the mother and vested in her adopted son'. An objection on that score was taken for the first time before the Board. It was said that the decree put the respondent in possession, in her own right, of that which was divested from her by the act of adoption. Lord Campbell, delivering the advice of the Board, met this objection in two ways. First:
'No objection was made in either of those Courts (the Zillah Court and the Sud-der Dewanny Court) that proper parties were not before the Court. If such an objection had been made, it might have been removed, and I think it is a sale maxim, for a Court of Appeal to be governed by -- that an objection, which, if taken, might have been cured, and which has not been taken in the Court below, shall not be taken in the Court of Appeal.'
Second: the decree, 'not very skilfully framed', be considered as a decree putting the respondent in possession as the adopted son's guardian and trustee.
5. What concerns the lis on hand is the first answer given by their Lordships: Do not allow to be taken in the Court of appeal (and necessarily still in a court exercising only its power of superintendence as I am doing, falling far, far short of an appeal) an objection, which, if taken in the primary court, might have been cured. Naturally Mr. Ranjit Banerjee relies on it and submits that the objection he has taken was incapable of being cured. The hands of the clock would not have gone back, and non-service of a notice of ejectment upon Biswanath, prior to the lis in ejectment, is beyond repair or cure. I am clear in my mind that this contention is sound and should receive effect. But whether or no it will give the petitioning thika tenants what they want is another matter. (More of which hereafter in paragraph 7 et seq. infra.)
6. The other authority is a Full Bench decision of the Assam High Court: Chandra Mohan Saha v. Union of India, AIR 1953 Assam 193 (FB), where the law laid down is: 'Rule 13 (of Order 1) has no application to a case where a necessary party to the suit is not before the court and no effective decree can be made in absence of such a party. The suit in such cases is inherently defective and the point can be taken at any stage provided no new facts have to be alleged or proved.'
No new facts have to be proved here. That Biswanath is a son of Basanta, members all of a family governed by the Mitakshara family, has been proved. So, Mr. Ranjit Banerjee is entitled to raise the point of non-joinder of Biswanath and non-service of the notice of ejectment upon him. And then, a point as this was in fact raised before both the tribunals below. Hence, Mr. Banerjee is entitled to raise it all the more. Thus, in view of all that goes before, the! stance the appellate tribunal takes -- a stance Mr. Banerjee makes a grievance of, and legitimately too -- cannot be supported betraying as it does an error apparent on the face of the record, provided, of course, Biswanath can be regarded as a thika tenant and little more, going unrepresented in the lis on hand.
7. But can he be so regarded: can it be said that such a one, Biswanath, goes unrepresented in the lis right from me primary forum to this Court, and even earlier, in the matter of service of ejectment notice? These are the two questions which Mr. Taraknath Roy, appearing for the opposite party landlords, raises and invites me to answer in the negative, on the basis of material of undoubted authenticity on record. One class of such material consists of 99 rent-receipts, exhibits A ---A (98), from September 26. 1942 (exhibit A) to December 1, 1959 (exhibit A/33), arranged in chronological order, on the whole, with a little break here and there. Of so many, only six are in the names of Basanta and Kanai, the two petitioners before me. They are --
SI. No.Date of receiptMonth for which rent paid.Exhibit number.
12.4-1059February 1957A (94)22-4-1969March 1957A (95)31-6-1959May 1967A (96)41-8-1959June 1957A (97)51-11-1959August 1967A (98)61-12-1959September 1957A (88)
The rest of the rent receipts right from September 26, 1942, (evincing payment of rent for July and August 1942) up to April 2, 1958, (evincing payment of rent for November 1956) are all in the name of Ishwar Pandey, admittedly the original thika tenant, and the sole tenant too.
8. Mr. Roy wants me to consider these rent-receipts, and very rightly too, with the letter dated February 6. 1959, exhibit 8, over the signatures of the two petitioners before me, to the address of the landlords opposite party. By this letter they tell the landlords that their father, Ishwar Pandey, 'died a few years ago leaving us (Basanta and Kanai) as his heirs'. So, mutation of their two names in the sherista of the landlords is prayed for; is prayed for too the issue of dakhilas (rent-receipts) in their joint names. That is why the dakhilas did issue so from April 2, 1959, some ten years after their father's death as they say. Ergo, without more, the conclusion appears to be ineluctable that the two petitioners before me are the only two recorded tenants in the books of the landlords, and on their own prayer too. Who else will the landlords, therefore, sue except these two recorded tenants? Who else will they serve their notice of ejectment upon except upon just these two tenants? So, it very much looks that the two petitioners have thrown a garotter round their necks by having written the letter they did on February 6, 1959; the more so, because of the following admitted facts:
One, Kanai the 3rd witness for the opposite party before the Thika Controller, himself an opposite party and now one of the two petitioners before me, admits to have signed that letter, exhibit 8.
Two, he admits too having waited on the landlords presumably along with his brother Basanta, the other petitioner before me.
Three, such evidence in chief apart, he admits on cross-examination:
'Myself and my brother (Basanta) are tenants in respect of the suit property'.--demonstrating, so to say, that truth has inadvertently come out from his mouth Such illuminating evidence defies the explanation sought to be put upon it: that it does not negate Biswanath having been a tenant too. Why not say so then, on such a vital matter raised by you, and why say then that you two are the two tenants?
Four, Biswanath's year of birth is put forward as 1944 by Biswanath himself, the 4th witness of the thika tenants; whereas the year of death of Ishwar Pandey is said to be 1949: vide the cross-examination of Basanta, the second witness for the thika tenants, and himself a thika tenant. Thus, Biswanath was born some live years ahead of Iswar's death. Still on February 1959, ten years after Ishwar's death an some fifteen years after Biswanath's birth, his father and uncle, Basanta and Kanai, respectively, wrote to the landlords that they were the only heirs of Ishwar and that their names might be mutated. I, therefore, said, at the risk of repetition; without more, there is no escape from the conclusion that the two petitioners before me are the two thika tenants: Biswanath is not one such. At all events, there is, in the conclusion come to by the Appellate Tribunal on the foot of material he had had put before him, no error apparent on the face of the record, or the like, which alone can give me jurisdiction to interfere with the order complain-ed of, let alone the question whether or not I should act at all in the exercise of my jurisdiction, even if there is such an error. Sure enough, Article 227 does not convert this Court into a Court of appeal, permitting substitution of its own judgment, on fact or law, for that of the subordinate tribunals. I see no grave dereliction of duty nor any flagrant abuse of the fundamental principles of law, resulting in the miscarriage of justice. Where then is my power to interfere?
9. But, Mr. Ranjit Banerjee contends, there is a little more which tilts the conclusion in favour of the petitioning thika tenants. Does not a thika tenant include, by the very definition in Section 2, Clause 5, of the Calcutta Thika Tenancy Act, 1949, asks Mr. Banerjee, his successors-in-interest? It does. So what? The mode of devolution of this property, under the Mitakshara Law, applicable here, is, therefore, by survivorship, concludes Mr. Banerjee, with Biswanath (the grandson) as an heir of Ishwar upon his death in 1949. To that the answer is: the rule of survivorship applies to joint family property, which the thika tenancy here is not. It was the separate property held in absolute severalty by the last owner, namely, Ishwar. Therefore, the rule of succession, not the rule of survivorship, governs the devolution of such property. Hence, Basanta and Kanai are the only two heirs of Ishwar, as they stated truly enough in their letter of February 6, 1959: Exhibit 8. Biswanath, whose father is alive, is not one. See Article 24, p. 83, Mulla's Hindu Law, 13th Edn. So I hold, rejecting Mr. Banerjee's contention.
10. Now remains the question of Biswanath (assuming him to be an heir) going unrepresented in the list, or to go a little more, not having been served with the notice of ejectment. That Basanta is the karla of the family in his own admission, on cross-examination. True it is that the landlords' petition before the Thika Controller does not state in express terms that ho is being proceeded against as karta. What though that is so? The fact remains that he is the karta. On March 19, 1962, when the lis was instituted, Biswanath was either a minor or had just ceased to be of nonage. If a minor, who would act more in his interest in the lis than his father Basanta? If just a major, his consent is plain to be seen. He does not say in his evidence that his father's interest is inimical to his. He says instead:
'I live with my father. My father is the karta of the family. I have same interest with my father in the suit property.' On such consideration too, non-joinder of Biswanath in the notice of ejectment and in the lis also cannot stand between the landlord's opposite party and success they have earned so far. To sue the karta, in the circumstances, is to sue all members of the family. First and last, this is a singularly unfit matter for interference under Article 227 of the Constitution.
11. In the result, the rule fails and dostand discharged.