1. This rule has been obtained by the plaintiff in Title Suit No. 36 of 1944 in the 2nd Court of Subordinate Judge, Pabna, against an order made in that suit on 4-10-1915. Issues of misjoinder of defendants and causes of action which had been framed, had been set down for hearing. The learned trial Judge held that there was misjoinder and he directed plaintiff to elect by 10th November 1945, as to the defendants against whom he would proceed. The terms of the order are:
The plaintiff do elect by the 10th November 1945, whether he should proceed against defendant 155(ka) and defendant 140 and the defendants that claim under them in respect of the lands they claim and possess or ?whether he should proceed against the other defendants in respect of the land they claim and possess. For this issue defendant 155(ka) and defendant 140 are allowed costs specifically incurred and pleader's fees Rs. 32 each. The plaintiff is to pay the same.
2. The matter arises in this way. In about 1931-32 and thereafter there began to emerge from a part of River Ganges a Chur which eventually extended to an area of some 5000 bighas or thereabouts : In time a considerable part, at any rate, became fit for cultivation. There was & survey, and a map was prepared and a part of the Chur which may be broadly referred to as the southern part was registered as Government Khas Mahal Touzi No. 1842 of the Pabna Collectorate.
3. In 1340 B.S. Government gave a lease of this land for 10 years to one Surendra Nath Tagore, since deceased, the husband of defendant 2 in suit; he in his turn sold his leasehold interests to the Roy defendants, defendants 3 and 4 and they have settled their tenants defendants 5-139 on the land. Another part of the Chur some 117 bighas in the northern portion was taken possession of by one Sobhabala Devi, defendant 140 who claims it as appertaining, to her own touzi No. 112 and she settled her own tenants there-they are defendants 141-155.
4. The plaintiff who claims the whole Chur as appertaining to his properties Mouza Kismat Biratgram and Mouza Kismat Diar Biratgram filed this Title Suit No. 36 of 1944 against the following : (a) the Province of Bengal, the widow of Surendra Nath Tagore, the Roy defendants whom I have already mentioned and their tenants; for convenience I will, refer to these defendants as group i: and (b) against Sobhabala Devi (defendant 140) and her tenants whom I will refer to as group n. Certain other persons to whom it is not necessary to mention were also made pro forma defendants in this suit. By his plaint plaintiff alleged collusion which admittedly if established would entitle him to join these defendants in the one suit which he has filed. Written statements were filed; defences raised included limitation and misjoinder of defendants and causes of action.
5. On 10th March 1945, an order was made in the suit for local investigation and a Commissioner was appointed. On investigation being held it transpired that a portion of the Chur which may lie broadly referred to as the western portion was not in occupation of either group I or II but in possession of Kumar Birendra Nath Roy who claims the land as appertaining to his Mouzas Diar Bargunda and Bhairabpara. He and any tenants he may have settled on the land will be referred to as group III. On 7-5-1945, the plaintiff applied for leave to amend the plaint by adding Kumar Birendra Nath Roy as defendant 155 Ka. This was allowed. At the same time amendments of the plaint were allowed so as to introduce a cause of action against that defendant. This of course was done without notice to Kumar Birendra Nath Roy. No plea of collusion was taken then but on 14-9-1945 the plaint was allowed to be amended again and the pleas included a charge of collusion between Kumar Birendra Nath Roy and the other principal defendants, but no overt act was alleged. The amendment mentioned was applied for after defendant 155 Ka had filed his written statement and had made an application for addition of the issue of multifariousness after group ill defendants were served; appearance was entered by defendant 155 Ka and a written statement filed by him alleging that the part of the Chur in his possession appertained to his two touzia referred to above. He pleaded inter alia misjoinder of defendants and causes of action and limitation. On his representation that he was not bound by the local investigation as it was not made in his presence this was ordered de novo. Thereafter issues were settled. They included the following:
(2) Is the suit bad for misjoinder of parties and causes of action, if any?
(13) Is the suit bad for misjoinder of defendants and causes of action and multifariousness? And whether the causes of action against the different defendants can be conveniently tried or disposed of together?'
On 14-9-1945 the suit was adjourned to 26-9-1945 for hearing on the issues of misjoinder. On 26-9-1945 to suit the convenience of the Court the case was adjourned to 3-10-1945. On that date, the order sheet shows that defendants 3, 4, 140 and 155 Ka were ready, and the issues were taken up. Certain documents were put in by the defendants. The plaintiff called no evidence to substantiate his case on the issues before the Court. At some stage in the day, defendant 155 Ka states that it was after the matter had been heard and adjourned to the next day for orders the plaintiff applied for an adjournment to give him time to adduce evidence. The application for an adjournment was refused and on the next day i.e. 4-10-1945 the Court made the order that is the subject-matter of the present rule.
6. In our view the learned Judge was justified in refusing the application for an adjournment. It was on 14-91945 that issues were ordered to be set down for trial on 26th September. If plaintiff wished to rely on collusion as establishing the case that there were no misjoinder he should have been ready to do so on the day appointed for determination of the issue. If he could not be ready by the day appointed he should have said so, and applied then for an adjournment. On 3rd October he at first said he was ready to go to trial on this issue. The onus is on the plaintiff to show that the suit was well framed and if he must rely on collusion between defendants to establish this, it was not done, for collusion was not established.
7. Except for the alleged collusion there is no allegation of any link between 3 groups of defendants or of any concert between them regarding acts of dispossession or detention. There is no common derivation of title. According to the plaintiff's case the 3 groups are in dependent trespassers on the areas concerned.
8. In the circumstances, as collusion has not been shown the plaintiff has had to fall back on the argument that in the suit for possession of this plot all trespassers can be made defendants. It is not necessary to show collusion or any other common link, such as common derivation of title. That contention has been the main argument in support of the rule.
9. Before enactment of the Civil Procedure Code of 1908 the relevant provision was Section 28 of the Code of 1882, which ran as follows:
All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative in respect of the same matter.
10. Decisions under that section on the issue of misjoinder are not uniform in the case where a suit for possession of land has been filed against a number of trespassers, claiming to be entitled in different and independent interests there being no collusion. In Sudhendu Mohun Roy v. Durga Dasi ('87) 14 Cal. 435 and again in Ram Narain Dutt v. Annada Prosad Joshi ('87) 14 Cal. 681, it was held that defendants trespassers who were not shown to have acted in-concert or to be in possession claiming under some common title could not be joined in one suit; and a similar result was arrived at in Ram Prosad v. Sashi Dassi ('02) 6 C.W.N. 585 when the plaintiff's titles of ownership were infringed at different times by different defendants and there was no concerted action or combination to dispossess the plaintiff.
11. In Nando Kumar Naskar v. Banomali Gyan ('02) 29 Cal. 871, however, it was pointed out that the detention of the property by the trespassers and not the original act of dispossession was the plaintiff's cause of action and it was held that all trespassers could be joined in the one suit. In that case charges of collusion were made in the plaint, but the decision on the point mentioned was not founded on that circumstance nor apparently on the further feature which was present there that the defendants claimed their alleged title from one landlord who was the person from whom the plaintiff also derived title. It was observed in that case in answer to the defendants' contention that the title they claimed was independent, that that was not relevant and that the plaintiff's cause of action was that others were in possession of his property and that it mattered not to the plaintiff how the defendants explained their possession. What concerned him was that others were wrongfuly in possession of what was his and that fact gave him his cause of action. It was held that the position was the same whether the persons in possession were one or more than one; that the plaintiff was entitled to claim recovery of his land as a whole and not in fragments and that all persons who opposed him in the enforcement of that right were concerned in his cause of action and ought accordingly to be made parties to a suit in which he sought to give effect to it. In that connection the learned Judges referred with approval to the decision to the same effect in Ishan Chandra Hazra v. Rameswar Mandal ('97) 24 Cal. 831. The decision appears to have been founded on the view taken in that case that on the facts there was only one cause of action.
12. With regard to the defendants' argument that the plaintiff had failed to prove that they had acted in combination in dispossessing him, the Court observed that the underlying fallacy was that the objection supposed that the plaintiff's cause of action was dependent on the original act of dispossession, such as would be the case in a suit for damages for wrongful entr ; but that where the suit is for possession the plaintiff's cause of action is the wrongful detention of the land which is his--not the taking of it.
13. These decisions under Section 28 of the Code of 1882 were perhaps founded upon the view taken in each particular case whether on the facts the plaintiff had one cause of action or more than one. In view of the provisions of the Code of 1908 which now apply, it is not necessary in our view to found our judgment on any of the decisions under the Code of 1882. If the question whether there is one cause of action or more than one was the relevant consideration when Section 28, C.P.C. of 1882 applied it is not so now.
14. The provisions of the Code of 1908 which are applicable are Order 1, Rule 3; Order 1, Rule 5 and Order 2, Rule 3(1) which are as follows:
Order 1, Rule 3.--All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.
Order 1, Rule 5.--It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.
Order 2, Rule 3(1).--'Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
15. Prom, these rules it appears that there may in one suit be a number of defendants; and a diversity of reliefs may be claimed and some of the defendants will not necessarily be interested as to all the relief claimed in the suit. But there must at the same time be some nexus, and what is required in that respect has been specified : there must be one act or transaction or one series of acts or transactions in respect of or arising out of which the right to relief against the several defendants is alleged to exist. There must also be present the further circumstance that if separate suits were brought against the defendants some common question of law or fact would arise.
16. It is now well settled that having regard to the provisions of Order 1, Rule 2 when common questions of law and fact are involved a suit impleading several defendants will not be multifarious only because the plaintiff's causes of action against the several defendants he has joined are different. See Harendra Nath Singha Roy v. Purna Chandra Goswami : AIR1928Cal199 . The same case has emphasised that the essential enquiries are whether there is one act or transaction (or one series of acts or transactions) which gives-rise to the plaintiff's right to relief, and whether if the case against the several defendants is considered individually, a common question of law or fact arises; if these incidents are found then the defendants and causes of action can be joined in one suit. In the same case at p. 171 Mukherjee J. has cited the decision of the Court of Appeal in England in Payne v. British Time Recorder Co. (1921) 2 K.B. 1, where the provisions of Rules 1 and 4 of Order 16 of the English Rules and Orders were considered, and has approved as a good working rule the principle there laid down that
broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the Court will allow the joinder of plaintiffs or defendants subject to its discretion as to how; the action should be tried.
17. In our view, averments of collusion apart, the plaintiff's case in the suit we are concerned with does not disclose any one transaction or series of transactions out of which his claim to relief arises, nor any common question of law or fact of sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time. In effect the relief claimed by the plaintiff is a declaration of title and possession of the southern area against group I defendants; of the northern area against group II; and of the western area against group III or Kumar Birendra Roy as the case may be. The detention of these areas by the defendants respectively are the acts out of which it is alleged the plaintiff's-right to relief arises. There appears to us to be no disclosed link or nexus between this activity of the three several groups of defendants which will justify its description as one act or all part of one series of acts. Nor does there appear to us to be in this case any common question of law or fact of such importance so as to bring the case within the 'working rule' referred to by Mukherjea J. and quoted above. The area claimed is a large one, and it is not obvious, for example, that the same considerations will apply in determining the question whether the southern, northern and western portions respectively of the land claimed by the plaintiff appertain to one or other of his two mouzas. In the suit, issues of limitation have been separately raised which, if decided in favour of the defendants will dispose of the suit whatever the plaintiff's right would otherwise have been: the question involved in determining these issues will not be common.
18. In our view there is no case for exercising the discretion of the Court in favour of joinder. In W. Dhar v. Htoon May 6 A.I.R. 1919 Low. Bur. 121 which was decided by the Chief Court of Lower Burma it was held that, where portions of an estate are in the possession of different persons each of whose interests is opposed to that of the others, a person interested in the estate suing for his share cannot ordinarily join all the persons in possession as defendants in one suit unless they are in possession in virtue of the same transaction or the same series of transactions.
19. In Afzal Shah v. Lachmi Narain 5 A.I.R. 1918 All. 425 where there was no community of interests between the defendants in possession of portions of an estate claimed by the plaintiff except that they were all purchasers of the parts in their possession it was held that one suit was not maintainable; in our view the decision was correct not so much because of the reason given in the report that there were several causes of action, but because as in the case before us there was no one transaction or series of transactions which gave rise to the plaintiff's right to relief.
20. In our view there is no objection to the joinder of all defendants of one 'group' in one suit; no suggestion to the contrary has been made. We read the learned Subordinate Judge's order as one which puts the plaintiff to election as to which one of the three groups of defendants he will proceed against in the suit; that is to say an election between either group I or group II or group III, and not to an election between either group I, or groups II and in together. So understood there is in our opinion no ground for setting aside the order. The plain, tiff must however be allowed a further one month's time from the communication of this order to lower Court to make his election.
21. Subject to the direction given above, the rule is discharged with costs-hearing fee twenty gold mohurs, five gold mohurs to be paid to each of the four sets of contesting opposite parties.