1. On the 9th October 1901, the first four defendants to this suit, now appellants before this Court, commenced an action against the fifth defendant for recovery of rent, and on the 14th March 1902, obtained a decree. About three years later they took out execution and attached the disputed lands as the holding; of their judgment-debtor. On the 9th June 1905, the plaintiff preferred a claim under Section 278, C.P.C., upon the allegation that part of the lauds formed his ancestral tenancy, that the remainder had been purchased by him on the 10th January 1901, and that no portion of the lands belonged to the judgment-debtor of the decree-holders. The claim was rejected on the 31st August 1905 and on the 9th September following, the plaintiff commenced this action under Section 283 of the Code of Civil Procedure, for declaration that the disputed properties were owned by him, that the fifth defendant, the judgment-debtor of the other defendants, had no interest therein, and that they were consequently not liable to be sold in execution at their instance; he also asked for an injunction to restrain the decree-holders from proceeding to execute the rent decree against the disputed properties. The claim was resisted by the first four defendants, who challenged the title of the plaintiff and asserted that the lands were comprised in the tenancy of the fifth defendant. The Court of first instance found in favour of the plaintiff that the fifth defendant had no title to any portion of the lands, which were, consequently, not liable to be sold in execution of the decree obtained by the first four defendants. The question, however, whether the plaintiff had acquired a valid title to a portion of the land by his alleged purchase, was left undecided and the decree in his favour merely declared that the lands were not liable to be sold in execution. The Subordinate Judge on appeal held that the plaintiff had shown a good title only to the portion of the lands claimed by inheritance, and that he had no title to the lands claimed by purchase, as he had failed to establish any title in his vendors. The Subordinate Judge, however, expressed an opinion that if the title of the vendors had been established, the plaintiff would have taken a good title as the lands were transferable by custom and usage. In this view of the matter, he modified the decree of the Court of first instance, declared the title of the plaintiff to the lauds claimed by right of inheritance, and granted an injunction restraining the defendants from selling those lands in execution of their decree. The defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been attacked on substantially three grounds, namely, first, that, as the plaintiff, on his own evidence, is not the exclusive owner of the lands claimed by inheritance, but has co-sharers who are no parties to the suit, the suit has not been properly framed and should be dismissed; secondly, that the Subordinate Judge has misconstrued the Khusra and misunderstood its bearing upon the question of title of the plaintiff, and thirdly, that the Subordinate Judge ought not to have expressed any opinion upon the question of transferability when he found as a matter fact that the vendors of the plaintiff had no title to transfer.
2. In support of the first point taken on behalf of the appellants, it has been argued that although no objection was taken in the Court of first instance on the ground of defect of parties, Section 34, C.C.P., is of no avail to the respondent inasmuch as it is not a case of mere non-joinder of parties but rather a case where the plaintiff has in reality failed to prove exclusive title as alleged by him and is, consequently, not entitled to the declaration he seeks. Reliance was placed in support of this contention upon the decision of this Court in the case of Beejoynath v. Luckhee Monee 12 W.R. 248. It was contended, on the other hand, by the learned Vakil for the respondent that the objection ought not to be allowed to be taken at this stage as it was not taken in the Court of first instance, and further, that there was no substance in it, as upon the evidence on the record, the plaintiff held the land as a member of a joint Mitakshara, family and was, consequently, entitled to maintain the action for declaration even without the presence of his co-parceners. In our opinion, the view taken by both the Courts below that the objection as to defect of parties must be deemed to have been waived under Section 34, C.C.P., and, therefore, the title of the plaintiff is not open to attack, cannot be supported. No doubt under that section all objections for want of parties have to be taken at the earliest possible opportunity and in all cases before the first hearing, and any such objection not so taken is to be deemed to have been waived by the defendant; but this pro vision does not entitle the plaintiff to a measure of relief larger than the right he really possesses. For instance, if A. sues for recovery of possession upon the allegation that he is the exclusive owner of the property but it is established by the evidence that he is entitled to only a half share and that the other half belongs to a co-owner, B., who is not a party to the suit, the mere omission of the defendant to take the objection, that B. ought to have been joined as a party defendant, would not entitle the plaintiff to obtain a decree for the whole. On the other hand, if there is no inconsistency between the pleading and the proof, A. would be entitled to relief to the extent of the right established by him. Section 34, therefore, upon which reliance was placed in the Courts below, is of no assistance to the plaintiff. We have to consider, whether in the circumstances which have been disclosed, he is entitled to obtain the declaration he seeks. Now, in the Court of first instance in the course of the examination of the plaintiff, it transpired that he held the disputed lands jointly with his co-sharers, who had not been joined as parties to the suit and the existence of whose joint right had not been disclosed in the plaint. The same evidence, however, showed that the plaintiff and his co-sharers formed members of a joint Mitakshara family. The question, therefore, arises for consideration whether the plaintiff alone is entitled to maintain a suit for declaration that the disputed lands do not belong to the fifth defendant and are not liable to be sold in execution of the decree obtained against him by the first four defendants, in other words, whether, if these facts are proved, the plaintiff is entitled to an injunction to restrain the decree-holders from executing their decree against these lands as the property of their judgment-debtor. In our opinion, the plaintiff is entitled to the relief which he claims, although he may not be entitled to the declaration that he himself is exclusively entitled to the subject matter of dispute. In the case of Moidin Kutti v. Krishnan 10 M. 322, it was ruled by the learned Judges of the Madras High. Court that when some of the junior members of a Malabar tarwad, which is in some respects closely analogous to a joint Mitakshara family, sued to cancel certain mortgages executed by their Karnavan, although all the members of the tarwad should have been joined actually or constructively, the objection as to nonjoinder was not essential but merely formal, and that the plaintiffs, who were some of the members, were entitled to the declaration. Again in the case of Paramasiva v. Krishna 14 M. 498, it was ruled that where a suit is brought by one member of an undivided Hindu family to recover land, the property of the family, and no objection is taken at the hearing on the ground of the non-joinder of the plaintiff's co-parceners, it is not open to an unsuccessful defendant to raise such objection on appeal. Substantially the same view has been taken by the learned Judges of the Bombay High Court. Thus in Naranbhai Vaghjibhai v. Ranchod Premchand 26 B. 141, it was ruled by Sir Lawrence Jenkins, C.J. and Mr. Justice Chandavarkar that, when the plaintiff, a member of a joint Hindu family, sued for exclusive possession of the land on the allegation that it was his property and had been illegally taken possession of by the defendants on the strength of purchase from a person who had no title, the plaintiff was entitled to succeed, even if it was established that he was not the exclusive owner but held jointly with his co-parceners. This view was subsequently affirmed by the same Court in Bhiku Ravlu v. Puttu 8 Bom. L.R., 99, where it was pointed out that even though the plaintiff in his plaint may ask for exclusive possession, he may nevertheless be allowed possession in common, for this does not involve any variance with the facts alleged in the plaint, but merely the correct determination of the relief appropriate on the facts established. If the plaintiff merely asks for a relief larger than the facts asserted by him would warrant, he would not necessarily be debarred altogether from any relief to which, on the facts proved, he might be entitled. In our opinion, looking to the position of a member of a joint Mitakshara family in relation to any portion of the family property, we must hold that he is entitled, as against a trespasser or a person, who seeks wrongfully to seize the property in execution of a decree obtained against a stranger, to recover possession or to ask for a declaration that the properties are not liable to be sold in execution as the properties of the alleged judgment-debtor. Every member of a Mitakshara family in the position of the present plaintiff is interested in the whole of the property, subject to the rights of his co-parceners. If, therefore, a member finds that the property in which he is jointly interested is about to be seized in execution, as the property of a stranger who has no title therein, he is entitled to maintain an action to prevent the impending mischief. If the decree-holder insists that the co-parceners of the plaintiff should be brought on the record and if the objection is taken in time, they may be added as party defendants; but clearly the plaintiff is entitled to maintain the action and to obtain the necessary declaration. The case upon which reliance was placed on behalf of the appellant Beejoynath Chatterjee v. Luckhee Monee Dabee 12 W, R. 248 is obviously distinguishable. In it, it was ruled that, when a plaintiff in a suit asks for one thing, for instance, exclusive possession, a Court ought not to give him a, decree because the defendant has proved that he is entitled to another thing, for instance, joint possession This, however, is not the universal rule, though it may hold good in the circumstances of a particular case. The test to be applied is, whether there is a substantial variance between the pleading and the facts established. But we are clearly of opinion that it cannot be laid down as an inflexible rule of law that, whenever the plaintiff asks for a particular declaration and it is found that he is not entitled to it, the Court is incompetent to grant him any other declaration. The view we take is amply supported by the decision of this Court in Lukhun Sing v. Nuffur Sing 6 W.R. 311, Raj Kishore v. Huree Mohun 19 W.R. 195 and Bishnoo Pershad v. Ram Coomar 22 W.R. 2, in the last of which cases Mr. Justice Markby distinguished his earlier decision in Beejoynath Chatterjee v. Luckhee Nonee Dabee 12 W, R. 248, on the ground that the principle there laid down was applicable to declaratory suits. In our opinion, even in suits for declaration, the Court is quite competent in its discretion to give the plaintiff relief not strictly identical with what he seeks in the plaint. In the case before us, however, the substance of the controversy between the parties is not the precise extent of the right of the plaintiff, but the true position of the fifth defendant. The whole question is, whether the fifth defendant is the owner of the disputed properties and whether in execution of the rent decree obtained by the first four defendants, these are liable to be sold as the properties of the fifth defendant. It has been found concurrently by two Courts that as regards the portion of the lands claimed by the plaintiff as his ancestral property, the fifth defendant has no interest whatsoever. Whatever, therefore, the precise extent of the interest of the plaintiff may be, whether he has a right to exclusive possession of the lands or is bound to hold them along with his co-parceners, he is entitled to prevent the first four defendants from executing their decree against these lands as the properties of the fifth defendant. The view we take as to the position of a member of a Mitakshara family is in no way inconsistent with the rule laid down by this Court in Mir Tapurah Hossein v. Gopi Narayan 7 C.L.J. 251, where it was held, upon principles applicable to cases of joint contractees, that when rent is due to members of a joint Hindu family, it is not open to the Karta alone to maintain a suit for rent without joining the other members either as plaintiff or as defendant except when the tenant has admitted the Karta as the solo landlord. Here the plaintiff does not seek to recover any property from a person who holds under himself and the other members of the family, he merely seeks to prevent interference with the family property by a person who has no right to proceed against it, and in our opinion, he is quite competent to do so upon the principles we have explained. If the first four defendants had contended in the Court of first instance at the earliest possible stage that the co-parceners of the plaintiff ought to be brought on the record, so that they might not be exposed to the risk and expense of separate suits at the instance of each individual co-parcener, they might have been entitled to have the co-parceners added as party defendants. They have, however, omitted to take such objection, and so far as this aspect of the case is concerned, the provisions of Section 34, C.P.C., would be clearly applicable. There is a well marked distinction between non-joinder of necessary or indispensable parties, and non-joinder of proper but not indispensable parties; and where, as here, the parties omitted are necessary only for the purpose of protecting the defendant from further litigation, the Court may, in its discretion, disregard the objection, if not raised at the proper stage (Encyclopedia of Pleading and Practice Vol. 15, p. 690). As in the case before us, the plaintiff is entitled to maintain the action and to obtain the whole of the relief which has been granted to him, without the presence of his co-parceners, the decree of the Court below cannot be disturbed. We may further add that Section 578, C.C.P., furnishes a complete answer to the argument of the appellants. We are not entitled to reverse the decrees of the Courts below on the ground that the co-parceners of the plaintiff have not been joined on the record unless we are satisfied that this omission has affected the merits of the case or the jurisdiction of the Court in the events which have happened, the appellants have not been prejudiced in any way by the omission of the plaintiff to make his coparceners parties to the suit. The plaintiff has succeeded, and it has been established that the lands are not liable to be sold in execution of the rent decree. The appellants are not exposed to the risk of further litigation because as a result of the decision of the Courts below, they will be permanently restrained from executing their decree against the disputed properties claimed by the plaintiff by right of inheritance. If we accede to the contention of the appellants, set aside the decrees of the Courts below, and remit the case for trial to the Court of first instance after making the co-owners of the plaintiff parties defendants to the suit, the plaintiff cannot possibly be benefited. We must in a case of this description look to the essential justice of the case, [Cockerell v. Dickens 2 M.I.A. 353.], and keep in view the substance and merits rather than strict adherence to what, in the circumstances of the present case, turns out to be a matter of form. Hunooman Pershad Pandey v. Mussamut Babooee Kundraj Munwar 6 M.I. A 393; 18 W.R., 81. On this ground also, we must hold that the first objection taken on behalf of the appellants cannot be supported. See Hira Lal v. Ramjas 6 A, 57.
3. The second ground taken on behalf of the appellants raises a question of the interpretation of the Khusra. We are not quite convinced that this involves a question of law upon which the appellants are entitled to invite the interference of this Court. It has been repeatedly ruled that the misconstruction of a document is not necessarily a ground for second appeal, unless the document is one which is the foundation of the suit, being in the nature of a contract or document of title. The mere fact that some portion of the evidence is in writing and the Judge makes a mistake as to the meaning of it, does not afford a ground for special appeal. Nowbut Singh v. Chutter Dharee 19 W.R. 223, Ananda v. Parbatinath 4 C.L.J. 198. We are satisfied, however, that the effect of the Khusra has not been misunderstood. The Subordinate Judge interpreted the entries in it as showing that some of the plots stood in the name of Ram Bux. Dihi and others in the name of Rambux Pahi and ho concluded, without any evidence, it is contended on behalf of the appellants, that these persons were one and the same person, namely, the predecessor-in-interest of the plaintiff. On an examination of the Khusra, however, it appears that the plots stand in the name of Rambux Roy and some of them are described as Dihi lands and others as Pahi lands. The inference, therefore, drawn by the Subordinate Judge that these plots belonged at one time to an ancestor of the plaintiff is a fair one. His judgment, therefore, cannot be assailed on the ground of any error in this respect.
4. The third ground taken on behalf of the appellant is to the effect that the Subordinate Judge ought not to have considered the question of transferability of occupancy holdings in view of his conclusion that the vendor of the plaintiff had no title to convey. The learned Vakil for the respondent has not argued that a finding on this point was necessary for the purpose of the present litigation and he has no objection if a declaration to this effect is inserted in the decree.
5. The result, therefore, is that a declaration will be made in the decree to the effect that the question of transferability of holdings is left open, subject to this modification, the decree of the Court of appeal below will be affirmed and this appeal dismissed with costs.