R. Bhattacharya, J.
1. This second appeal is by the plaintiff whose suit was dismissed by the trial court. In the first appeal also he was unsuccessful.
2. The plaintiff's case, in short, is that the properties described in the schedules 'ka' and 'kha' originally appertained to a jama of Rs. 137/-. It belonged to the three brothers. Ram Chandra, Shyama Charan and Umesh. Ram Chandra and Shyama Charan died. The pro forma defendant No. 9 Nitai is the heir of Ram Chandra. Defendants Nos. 1, 2 and 3 are the sons of Shyama Charan and the pro forma defendants Nos. 5, 6, 7 and 8 are the sons of Sarat Chandra who was a predeceased son of Shyama Charan. Umesh died leaving behind his daughter-in-law Annakali, widow of a predeceased son. She is the pro forma defendant No. 4. In 1930 Umesh executed a Will in favour of the plaintiff in respect of all his properties and the plaintiff obtained Letters of Administration in respect thereof. The plaintiff is the son of Sorashi, the daughter of Umesh. The defendant No. 10 is the landlord in respect of the jama of Rs. 137/-. It has been alleged in the plaint that there was a partition as between Umesh and his brothers and on the basis of this partition Umesh got exclusive possession of the properties in 'ka' schedule but the properties in 'kha' schedule remained joint. The plaintiff has claimed 16 annas title in 'ka' schedule property and l/3rd share in 'kha' schedule property. During the lifetime of Umesh the defendant No. 10, the landlord filed a suit for rent and got a decree. During the pendency of the execution case Umesh died and after his death the plaintiff or any heir or successor of Umesh was not substituted in his place and in execution of the decree obtained by the landlord and on suppression of the processes of the court, the jama was put to auction sale. In fact, after the sale no possession of the lands were delivered to the landlord auction purchaser; neither was the possession taken by the defendant No. 10. The defendants Nos. 1 to 3 lived with defendant No. 4 who was looking after the properties on behalf of the plaintiff and all of them had been possessing the suit properties. The plaintiff asked the defendants Nos. 1 to 4 to vacate the suit land and on their refusal the present suit was filed. The defendants Nos. 1-3 and 5 and 6 filed a joint written statement. They denied the allegations of the plaintiff and their case was that the suit plots were made khas by the defendant No. 10 by virtue of a rent sale and the defendants Nos. 1 to 3 and pro forma defendant No. 9 took a fresh settlement of the lands at an annual rental of Rs. 104/-. Subsequently the defendants Nos. 1 to 3 executed a deed of gift of some of the suit properties as mentioned therein in favour of the pro forma defendants Nos. 5 to 8 and also delivered possession thereof. At a later stage, however, the defendants Nos. 1 to 3 filed another joint written statement denying the statements of their previous written statement. Now they have fully supported the plaintiff and denied that the defendants Nos. 5 to 9 got any possession of the suit land. They have stated in the second written statement that the proforma defendants Nos. 5 to 8 obtained a deed of gift by practising fraud upon them.
3. The pro forma defendant No. 10 denied the allegations of the plaintiff and the case in the written statement is that by purchasing the jama of Rs. 137/- in an auction sale held by the court in anexecution case in connexion with a rent decree obtained by the defendant against the tenants, khas possession of the disputed lands under the jama was taken with the help of the court and thereafter in 1344 B. S. the pro forma defendant No. 10 settled the lands with the previous tenants and since then the said tenants are in possession thereof under the new tenancy. It has been alleged that on account of getting the khas possession and remaining there for more than two years and due to the new settlement, the previous tenancy has been determined. In fact the pro forma defendant No. 10 besides the plea of fresh tenancy, relied upon the special limitation under Article 3 of Schedule III of the Bengal Tenancy Act. In the original written statement filed by the defendants Nos. 1 to 3 and 5 and 6 such special limitation was taken. The learned Munsif of the trial court held that there was no partition in respect of the 'ka' schedule properties as alleged by the plaintiff and that the plaintiff's claim for title and recovery of possession could not be entertained because such title has been extinguished as it was proved that rightly or wrongly khas possession of the suit land had been taken by the landlord adversely against the interest of the plaintiff for more than two years and therefore under Article 3 of the Schedule III of the Bengal Tenancy Act, the suit was barred by special limitation. In this view of the matter the suit was dismissed. In the appeal taken by the plaintiff the learned Subordinate Judge has found that the case of partition by metes and bounds had not been proved and that as Umesh had l/3rd share in both 'ka' and 'kha' schedule properties, the plaintiff acquired title in respect of that share of Umesh by virtue of the Will executed by the said Umesh, It has also been found that Umesh died during the pendency of the rent execution case. According to the learned Subordinate Judge the plaintiff as a co-sharer having l/3rd ownership in the 'ka' and 'kha' schedule properties can claim recovery of joint possession for his share only and thereafter he can sue for partition provided the instant suit is not barred by special law of limitation under the Bengal Tenancy Act and on that question of limitation his finding is that the suit properties were sold in auction on 25-11-36 in Rent Execution Case No. 392 of 1936 of the 2nd Court of Munsif, Serampore. The sale was confirmed on 4-11-37 and the execution case was dismissed on full satisfaction on that date. His further finding is that there is no evidence that the pro forma defendant No. 10 took possession through court and that there is no such averment in the written statement filed by the defendants Nos. 1 to 3 and pro forma defendants Nos. 5 and 6. The learned Subordinate Judge has, however, noticed that in the written statement filed by the defendant No. 10 the allegation was that possession of the suit properties was taken through court and that after retaining the same in khas possession resettled the same in 1344 B.S. The learned Subordinate Judge has also noticed that there is no evidence in support of this averment made in the written statement. The finding of the learned Subordinate Judge is that the defendant No. 10, the Sebayet of the Tarakeswar Estate, obtained amicable possession out of court and that in 1346 B.S. the new jama of Rs. 104/- was settled with the defendant Nos. 1 to 3 and 9. The first appellate court below held that the suit was barred by Article 3 of Schedule III of the Bengal Tenancy Act as the landlord was in khas possession of the suit land for a period of about 3 years before the resettlement. Consequently the appeal was dismissed by the learned Subordinate Judge. The present appeal has been filed against the decisions of the courts below.
4. We have heard Mr. Ghosh, the
learned Advocate appearing on behalf of the appellant and also the learned Advocates of the respondents appearing in this appeal.
5. It has been urged from the side of the appellant that both the courts below came to perverse findings of facts without any evidence and contrary to the law of pleadings as their decisions are based upon a case against the one pleaded by the defendants in their written statements. It has been further argued that the decisions are based upon evidence which is inadmissible according to law. It has been stated that the learned courts below misread the pleadings and the evidence on record and also the provisions embodied in Article 3 Schedule III of the Bengal Tenancy Act.
6. The suit was contested at the time of trial by the pro forma defendants Nos. 5 to 8 and 10 in particular. Their specific case is that after the rent sale of the disputed jama by the landlord,it was taken in khas and thereafter it was settled by the landlord with the defendants Nos. 1 to 3 and 9 and as such the suit was not maintainable due to the special law of limitation under Article 3 Schedule III of the Bengal Tenancy Act. There is no dispute before us that Umesh and his co-sharers held the jama of Rs. 137/- and that the landlord obtained a rent decree against them. Admittedly again during the pendency of the rent execution case Umesh died and nobody was substituted in his place as successor, heir or legal representative. Thereafter there was an order for sale dated 25-11-36 and the same was confirmed. There is no evidence that the sale took place within the knowledge of the plaintiff or any heir of Umesh. The specific case of the landlord pro forma defendant No. 10 in paragraph 10 of the written statement is that after purchasing the suit jama in the rent execution case and on obtaining physical possession of the properties with the help of the court, the landlord in 1344 B.S. settled the said lands for a jama of Rs, 104/- under a new tenancy to the previous tenants of the jama of Rs. 137/- and that since the new tenancy the said old tenants have been in possession. It has been alleged that due to such khas possession for more than two years the plaintiff's title, even if there was any, had been extinguished. The case as appears in the original written statement filed by the defendants Nos. 1 to 3 and 5 and 6 was that the new settlement was made as between the pro forma defendant No. 10 on the one hand and the defendants Nos. 1 to 3 to the extent of 2/3rd share and the defendant No. 9 to the extent of l/3rd share at an annual rental of Rs. 104/-. It is to be noted that the pro forma defendant No. 9 did not file any written statement. Clearly, therefore, in the pleading there was the case of the landlord that the possession of the lands was taken after the purchase of the property in the auction sale with the help of the court and thereafter in 1344 B.S. it was resettled with the previous tenants. At the time of trial, however, although the plaintiff adduced evidence that there was no delivery of possession of the suit property to the landlord either through court or mutually, there was a general suggestion during cross-examination of the plaintiff that the defendant No. 10 took khas possession after auction but the suggestion was denied. The plaintiff, however, adduced evidenceon his side to prove that the land of Umesh was being cultivated and bhag produce was being taken by the plaintiff. There was evidence by witnesses examined on the side of the plaintiff that the landlord never took khas possession of the suit lands and that the lands were not possessed by the landlord in khas. As against the evidence on the side of the plaintiff, four witnesses were examined on the side of the defendant. D.W. 1 is defendant No. 1 himself. He deposed on behalf of the defendants Nos. 1 to 3. He has stated that the Zemindar never took khas possession of the suit land and the story of new settlement was also denied. D.W. 2 is the defendant No. 6. He does not say that the landlord took possession of the suit property amicably. He says that he cannot say whether tine landlord took possession through court. D.W. 3 is an employee of the pro forma defendant No. 10. His evidence is that no possession was taken through court and the possession was given amicably. He cannot also name any person who gave the possession. P.W. 4, the last witness of tine Zemindar, says that he heard that Zemindar purchased some paddy from a field to make it khas but he cannot say from what land the paddy was cut. This is the nature of evidence adduced by the defendant. The evidence of the! defendant itself demolishes the case appearing in the pleading that the possession of the suit lands was delivered with the help of executing court. The case of obtaining possession through court and the case of obtaining possession amicably are quite different and they cannot be reconciled in the facts of the present case. A new case of getting possession amicably ought not to have been allowed by the learned trial court and should not have been accepted by the courts below. The evidence relating to the question of amicable possession sought to be proved on the side of the defendant should not have been recorded and allowed to be adduced by the party. Both the learned courts below acted illegally in accepting the story of amicable possession of the landlord after the auction sale. The story of getting amicable possession of suit lands in contradiction to the story of obtaining possession through court as pleaded by the defendant disproved the claim of special limitation under the Bengal Tenancy Act. As we have noted, according to the written statement of the pro forma defendantNo. 10, the settlement was effected with the previous tenants. The successor and heir of Umesh was certainly one of the previous co-tenants but there was no suggestion that the plaintiff or anybody as heir of Umesh took settlement from the landlord.
7. In this connexion Mr. P.N. Mitter, the learned Advocate appearing on behalf of the contesting respondent, the landlord, has submitted that amicable possession during the pendency of an execution case is as good as possession taken through court and that if the landlord takes khas possession of the tenant through court, it is as good as dispossession coming under Article 3 of Schedule III of the Bengal Tenancy Act. First of all we must say that in this particular case the pleading in the written statement was that the possession of the lands was taken with the aid of the court. Therefore, in view of the argument of Mr. Mitter that the landlord took possession from the tenants themselves amicably, such amicable possession cannot be regarded as possession obtained through court. Besides the delivery of amicable possession of the lands by the tenants to the landlord of their own accord is not covered by Article 3 of Schedule III of the Bengal Tenancy Act. Such amicable possession is not dispossession as mentioned in that Article. The prefix 'Dis' is one of 'negation', 'opposition', 'separation' and 'deprivation'. The word 'dispossess' means according to Chambers Dictionary 'to put out of possession' and according to Oxford Dictionary 'oust' or 'dislodge person', 'deprive' or 'rid of property'. 'Dispossession' therefore implies some active element in the mind of a person in ousting or dislodging or depriving a person against his will or consent and there must be some sort of action on the part of Zemindar. If a person amicably or voluntarily gives up possession, he is in that case not dispossessed by a person. Dispossession is quite different from discontinuance in possession. Mr. Mitter's contention that taking of amicable possession is dispossession contemplated under Article 3 of Schedule III of the Bengal Tenancy Act is untenable. In this connexion reference may be made to the case of Panchoo v. Jajneswar reported in 32 Cal LJ 9 : (AIR 1920 Cal 348). There has been some discussion there as to the meaning of dispossession. There it has been stated that the word 'dispossession' implies the coming in of a person and the drivingout of another person from possession. On the meaning of 'dispossession' with reference to Article 3 of Schedule III of the Bengal Tenancy Act, we also get a thorough discussion in the case of Ram Gopal v. Mosabbar Rahaman reported in 1958 Cal LJ 164. We find no reason to differ from the view appearing in the case.
8. Moreover, in the pleading it is stated that in the year 1344 B.S. the settlement was given to the previous tenants, but at the time of trial the story of the defendant was that the settlement was given in the year 1346 B.S. Admittedly even if the last date of 1344 B.S. be taken as the date of settlement according to the pleading then certainly even from the date of sale, the period of two years will not be completed. Moreover, from the side of the defendant there is no evidence about the date on which the khas possession was obtained by the landlord and when the period of special limitation started. On the very face of the pleading as well as the evidence on record, the defence of special limitation for two years under Article 3 of Schedule III of the Bengal Tenancy Act is untenable. The plaintiff has filed the suit within 12 years from the refusal of his co-sharers to deliver possession of the lands and the suit is maintainable. In view of our discussion, therefore, the courts below failed to consider the pleadings of the parties and also the relevant evidence adduced in this case and the findings of the courts were clearly illegal and perverse in the absence of evidence in support of the findings and also because the learned courts below relied upon surmises and evidence illegally admitted. The decisions of the courts below did therefore, cause gross injustice.
9. The other point canvassed by Mr. Roy, the learned junior of Mr. Mitter, is that in this case during the pendency of the Second Appeal, respondent No. 1 who was defendant No. 1 died on 22-10-72 and respondent No. 4 who was defendant No. 3 died on 13-6-69. The heirs of those respondents filed applications before this Court for being added as respondents. On 4-6-75 this Court passed orders for adding them, as prayed for, subject to objections to be heard at the time of hearing of the appeal. Now Mr. Roy's contention on behalf of the landlord-respondent is that no substitution was made by the appellant on the deaths of respondent Nos. 1 and 4 within timeand as such the appeal has abated. It has been further urged that when there is the special provision in the Civil P. C. for abatement, the Court should not allow any addition of the parties who are the heirs and legal representatives of the deceased respondents. Lastly it has been argued in this connexion by Mr. Roy that some of the heirs of the deceased respondent 'have not been added as parties and, therefore, the entire appeal should be dismissed.
10. In this connexion with regard to the contention raised by Mr. Roy, we should refer to the provision under Order 41 Rule 20 of the Civil P. C. It runs as follows :
Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.
In the present case respondents Nos. 1 and 4 were made parties throughout --in the trial court, in the first appellate court and even when the present second appeal was filed. This is a special and wide power given to the court only for doing proper and adequate justice between the parties avoiding nonsensical and meaningless technicalities. Of course this power can be resorted to by the court very seldom and only in those cases where the court feels that unnecessary technical objection should not stand in the way of doing proper justice between the parties without causing any prejudice to any of the parties. This discretionary power is to be used when the circumstances of a particular case so demand. Of course it has got to be seen by the court that by allowing addition of parties under Rule 20 of Order 41 of the Civil P. C. no prejudice is caused to the case of the parties or their interest and parties interested in the result of the appeal are to be added. We should also remember that the powers of the Court to add parties in any appeal is not exhaustive in Order 41 Rule 20. Such powers of addition of parties may also be exercised under Section 107 read with Order 1 Rule 10 or under Section 151 of the Civil P. C. as the circumstances will require. In this connexion the principles laid down in the case of Adhir v. Bidyutlata in (1958) 62Cal WN 290 may be looked into. It has to be seen also by the Court by allowing addition of parties that there should be no encouragement for any sort of dishonesty, mala fide conduct or mal practice of any of the parties. In the present case we find that at the time of trial the defendants Nos. 1, 2 and 3 supported the case of the plaintiff not only by amendment of the written statement, but also by giving evidence. In the first appeal also they did not oppose the plaintiff. In this appeal also after the death of the respondent Nos. 1 and 4 their heirs and legal representatives filed an application to be added as parties although the prayer was made beyond time. Of course they have been made parties subject to the objection which might be raised at the time of final hearing. The findings of the courts below are that although the story of partition as set up by the plaintiff was not tenable yet it has been proved that he had l/3rd share in the properties mentioned in the schedules 'ka' and 'kha' along with the defendants 1, 2 and 3, but on the finding that such title of the suit property of the plaintiff was extinguished by the special law of limitation under the Bengal Tenancy Act, the suit was dismissed and the first appeal by the plaintiff became unsuccessful. Clearly, therefore, the defendants Nos. 1, 2 and 3 have accepted the title of the plaintiff to the suit land. In this connexion we may say that the claim of the 16 annas ownership of the plaintiff in respect of the 'ka' schedule property has been given up before this Court by Mr. Ghosh on behalf of the appellant on the ground that the story of partition has been disbelieved by both the courts below. Therefore, in the second appeal the plaintiff and the three defendants accepted the title of the plaintiff as found by the courts below. The heirs of the respondents Nos. 1 and 4 of their own accord filed the applications for being added as respondents in the second appeal. In these circumstances there can be no doubt that they are all interested in the result of the appeal. The heirs and legal representatives of a deceased party to a suit are parties contemplated in Order 41 Rule 20. The predecessors in fact supported the plaintiff and their learned lawyer also supports the appellant and as such added parties are parties interested in the result of the appeal. We cannot, therefore, hold that by addition of the heirs of the respondents Nos. 1 and 4 therewould be any case of prejudice against any of the parties. We have already found on merits that the story of setting khas possession of the suit properties by the landlord as pleaded in the written statement has been disproved by the oral evidence and the story of Riving fresh settlement on taking khas possession does not appear to be a bona fide one. Rather the conduct of the parties in the matter of setting up a fresh settlement on the basis of a story of fresh settlement appears to be mala fide. In our view, the circumstances of this case very much demand that there should be a final adjudication of the disputes between the parties and a just and proper decision in the present appeal to avoid gross injustice already done in the courts below and further complications in future. For that purpose the addition of the parties in this appeal has been proper and legal. The provision appearing in Order 41 Rule 20 is without any restriction or limitation. Prom the decision of the Supreme Court in the case of Dev Raj v. Bhagwandas reported in AIR 1971 SC 240, it will appear that even after the abatement due to non-substitution of the heirs of the appellants, parties may be added in proper cases. The addition may he made at any time before the disposal of the appeal and for that purpose the question of abatement for want of substitution of the parties will not be a bar to such addition of parties. According to the provision of Order 41, Rule 20 a party to a suit may be added as party to the appeal at any time, but here in the present case the respondents Nos. 1 and 4 were made parties, but unfortunately the heirs were not substituted. The question of limitation does not arise in the matter of addition of the parties in the present case.
11. It has been argued that one or two of the heirs of the respondents, now dead, have not prayed for being added and therefore the respondents Nos. I and 4 have not been completely represented. Going through the counter-affidavit and affidavits-in-reply made in this case we find that omission of one heir or two of the respondents will not affect the maintainability of the appeal when a hoast of remaining heirs have already been added at their own instance. Their predecessors supported the plaintiff's case as the records show and in case the plaintiff succeeds, the title of their predecessors as claimed at the time of trial will be maintained. Their heirs cannot now set up a different case in the second appeal. If the plaintiff succeeds certainly the claims of the predecessors-in-interest of the added parties will be fulfilled. We find that the heirs of the respondents now deceased have been substantially and well represented and represented in law in this second appeal. In our view, the contention raised by Mr. Roy is unacceptable.
12. No other point has been raised. In the result the appeal shall be allowed to the extent that the plaintiff shall be entitled to get a declaration of his tenancy right in the suit properties both in 'ka' and 'kha' schedules attached to the plaint in respect of the jama of Rs. 137/-per annum as mentioned in the plaint and shall be entitled to get joint possession with his co-sharers therein.
13. In the result, we allow the appeal as indicated above on setting aside the impugned decisions and the decrees of the courts below. The appellant shall be entitled to the costs of this appeal against contesting respondent as well as in both the courts below.
Monoj Kumar Mukherjee, J.