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Bali Ram Vs. Smt. Sunehru and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.O. No. 27 of 1979
Judge
Reported inAIR1981HP20
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantBali Ram
RespondentSmt. Sunehru and anr.
Appellant Advocate Kedar Ishwar, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionAppeal dismissed
Cases Referred and Allam Gangadhara Rao v. Gollapalli Gangarao
Excerpt:
property - necessary party - appellant filed suit for possession of land - possession was claimed by demolition of house illegally built by respondents - respondent contended that x was owner of whole land - pleaded that x was necessary party to suit - appeal - a person is necessary party if in his or her absence effective decree cannot be passed at all - evidence revealed that x was necessary party to suit and no effective decree can be passed without her presence - respondent treated x as co-owner of property - co-owner can sue for possession - no final adjudication can be given in absence of x - appeal dismissed. - .....owner of khasra number 898, and further that the defendants have illegally taken possession of the suit land which is a part of the plaintiff's ownership and on these findings the suit of the plaintiff was decreed.8. feeling aggrieved from this judgment and decree the defendants filed an appeal in the court of district judge, simla sessions division, who vide his judgment, dated 22nd may, 1979 held that smt. ghogan was a necessary party to the litigation because her title was involved in this suit. it was further held by him that no effective decree could be passed in the absence of smt. ghogan. on these findings the judgment and decree of the sub judge was set aside' and the case was remanded to the court of sub judge for fresh decision after im pleading smt. ghogan as a party.9......
Judgment:

V.P. Gupta, J.

1. This appeal has been filed against the order, dated 22nd May, 1979 passed by the District Judge, Simla Division, Camp at Bilaspur, by which he has set aside the judgment and decree passed by the Sub Judge, Ghumarwin, on 5th August, 1976, and has remanded the case to the court of Sub Judge, Ghumarwin, with the direction that Smt. Ghogan be impleaded as a party in the case, as she was a necessary party for the adjudication of the controversy between the parties to the suit.

2. The brief facts are that Belt Ram (Plaintiff) appellant filed a suit for possession with respect to 4 biswas of land which is shown as kbasra number 898/1 in the Tatima attached with the plaint and which is a part of khasra number 898 measuring 15 bighas 6 biswas of Amerpur, Pargana Teoni, Tehsil Ghumarwin, District Bilaspur. The possession was claimed by demolition of the house illegally built by the (defendants) respondents.

3. The allegations in the plaint are that khasra No. 898, measuring 15 bighas 6 biswas is the sole ownership of the plaintiff and that during the absence of the plaintiff the defendants took illegal possession of a portion of the above said khasra number in the year 1974 and thereafter the defendants started construction of a house in this land. On this illegal act of the defendants the plaintiff applied for demarcation of khasra number 398 along with other khasra numbers and during the demarcation it was found that the defendants have taken illegal possession of 4 biswas of land which is the land in dispute and is shown as khasra number 898/1 in the Tatima attached with the plaint.

4. The defendants contested the suit of the plaintiff and pleaded that they are not in illegal possession of any portion of the plaintiff's land. According to them, the plaintiff along with Smt. Ghogan widow of Sukh Ram was the owner of the whole of khasra number 898 measuring 15 bighas 6 biswas and that they were owners in equal shares. Smt. Ghogan transferred her ownership to the extent of 2 bighas in favour of the defendants out of khasra number 898 for construction of a house to be built by the defendants, and that Smt. Ghogan was in possession of the disputed land and the hissedari kashat of which was handed over to the defendants. It was further asserted that the defendants have constructed a house on the land. All other allegations of the plaintiff were denied and it was pleaded that Smt. Ghogan is a necessary party to the suit.

5. The plaintiff filed a replication to the written statement and while reiterating the averments of the plaint he pleaded that Smt. Ghogan was not an owner in khasra number .898 or in short the plaintiff denied the title/ownership/possession of Smt. Ghogan.

6. On the pleadings of the parties the following issues were framed :

'1. Whether Smt, Ghogan is a necessary party to the suit? O.P.D.

2. Whether the land situated in khasra No. 898 measuring 15 bighas 6 biswas is in the ownership and possession of the plaintiff, as alleged? O.P.P.

3. Whether the defendants forcibly constructed a house in the portion of khasra number shown as khasra number 898/1 belonging to the plaintiff, if so, to what effect? O.P.P.

4. Whether the suit is properly valued for court fee? O.P.D .

5. Relief.'

7. The Sub Judge, Ghumarwin. vide his judgment and decree, dated 5th August, 1976, held that Smt. Ghogan is not a necessary party to the suit, she was not the owner of khasra number 898 and was not in possession of the same and that the plaintiff is the sole owner of khasra number 898, and further that the defendants have illegally taken possession of the suit land which is a part of the plaintiff's ownership and on these findings the suit of the plaintiff was decreed.

8. Feeling aggrieved from this judgment and decree the defendants filed an appeal in the court of District Judge, Simla Sessions Division, who vide his judgment, dated 22nd May, 1979 held that Smt. Ghogan was a necessary party to the litigation because her title was involved in this suit. It was further held by him that no effective decree could be passed in the absence of Smt. Ghogan. On these findings the judgment and decree of the Sub Judge was set aside' and the case was remanded to the court of Sub Judge for fresh decision after im pleading Smt. Ghogan as a party.

9. Aggrieved from this decision of remand by the District Judge, the plaintiff-appellant now assails the finding of the District Judge on issue No. 1.

10. I have heard the learned counsel for the parties and have gone through the record of the case carefully. The learned counsel for the appellant contended that the suit of the plaintiff is a simple suit for possession against the trespassers. The plaintiff has clearly alleged in his plaint that he is the sole owner of khasra number 898 and that it is now for the defendants to prove that they have a valid title to the disputed land, measuring 4 biswas which is carved out from kkhasra number 898. According to the learned counsel for the appellant if the defendants can show that the plaintiff is not the owner of disputed land then in that case the suit of the plaintiff will fail. He has further argued that Smt. Ghogan is not at all a neces-sary party for deciding the matters in controversy of the present suit because the defendants-respondents have been sued as trespassers. It was further con-tended by the appellant's learned counsel that the plaintiff cannot be compelled to join a party against his wish and he has referred to the provisions of Order 1, Rule 3 and Order 1, Rule 10 of the Civil P. C., and als' to Razia Begum v. Saheb-zadi Anwar Begum (AIR 1958 SC 886), Bindeshwari Chaudhary v. Dr. Shea Nan-dan Upadhya (AIR 1973 Pat 347), Benares Bank Ltd., Benares v. Bhagwan Das (AIR 1947 All 18) (FB), Hardeva v. Ismail (AIR 1970 Raj 167) (FB), Bhagwan Dass v. Bhishan Chand (AIR 1974 Punj & Har 7), Banarasi Dass Durga Prashad v. Pan-na Lal Ram Richhpal Oswal (AIR 1969 Punj & Har 57) and Fateh Raj v. Suraj Roop (AIR 1969 Raj 252).

11. On the basis of the above authorities the learned counsel for the appellant contended, firstly, that the plaintiff cannot be compelled to join any person as a party against whom he does not claim any relief or against whom he does not want to fight, and, secondly, that in the present dispute the joining of Smt. Ghogan as a party is not at all necessary to enable the court to effectually and completely adjudicate upon and settle the question involved in the suit and, thirdly, that an effective decree can be passed between the parties to the suit without the presence of Smt. Ghogan. It was further contended that the questions regarding title of Smt. Ghogan in the suit property is not involved directly and if it is incidentally involved then she is not at all a necessary party, because in that case at the most it can be said that Smt. Ghogan is indirectly or remotely interested in the matters in dispute. The learned counsel for the appellant also referred to the entries of jamabandi for the year 1972-73, Exhibit PB, and the copy of the order, dated 4-9-1971, Exhibit PD, and contended that the documents Exhibit PB and PD clearly show that Smt. Ghogan had no title in khasra number 191.

12. The learned counsel for the respondents on the other hand contended that Smt. Ghogan and Bali Ram were owners in equal shares of khasra number 898 and that Smt. Ghogan had only transferred her rights to the extent of 2 bighas in favour of the defendants and qua the remaining land she was the owner. It was, therefore, contended that Smt. Ghogan has still an existing interest as a co-awner in khasra number 138 and that the disputed land measuring 4 bis-was is a part and parcel of the main khasra number 898 and every co-owner will be deemed to have title to this land. It was further contended that in order to get possession from the defendants treating them as trespassers it was necessary that Smt. Ghogan be impleaded as a party especially in view of the fact that the plaintiff had denied her title to the land entered in khasra number 898 in his replication. The learned counsel for the respondents further contended that without impleading Smt, Ghogan no effective decree can at all be passed and that the title of Smt. Ghogan in the suit land is involved directly because even the judgment of the lower court while discussing various issues has held that Smt. Ghogan had no title in khasra number 898 and even the status of Smt. Ghogan as a widow of Sukh Ram had been challenged and discussed. It was thus on these facts contended that no adjudication can be effectively made without impleading Smt. Ghogan as a party to the litigation because her interests are directly involved in the controversy arising in the suit. To support his contentions the learned counsel has relied upon Sayid Kadir Ahmad v. Abdul Khaliq (AIR 1943 Oudh 315), (Pasumarthi) Subaraya Sastri v. Mukka-mala Seetha Ramaswami (AIR 1933 Mad 664), Yadavendra Bhatta v. Shrinivasa Babu (AIR 1925 Mad 62) and Allam Gangadhara Rao v. Gollapalli Gangarao (AIR 1968 Andh Pra 291).

13. The learned counsel for the respondents further referred to the documents, Exhibits DW1/A (copy of jamabandi 1972-73), DW2/A (the writing dated 18-11-1973), Exhibit DB (copy of order of Nautor, dated 29-12-1970), Exhibit DC (entries from voters' list), Exhibit DD (copy of application dated 2-5-19731 and Exhibit DE (order, dated 24-10-1975). From these documents the learned counsel for the respondents tried to prove that Smt. Ghogan was the owner of khasra number 898 and that she is widow of Sukh Ram.

14. After considering the arguments advanced by the learned counsel for the parties and after perusal of the record I am of the view that in the present dispute Smt. Ghogan is a necessary party and that no effective decree can be passed without impleading her. The different authorities which have been relied upon by the parties' learned counsel clearly lay down that a person is a necessary party if in his or her absence an effective decree cannot be passed at all. The pleadings of the parties clearly show that the plaintiffs deny the title of Smt. Ghogan in khasra number 898 from which the present disputed khasra number 898/1 has been carved out. It is also clear that the plaintiff has also denied the status of Smt. Ghogan as the widow of Sukh Ram because the judgment of the trial court has clearly discussed this controversy while deciding the title/ownership of Smt. Ghogan in khasra number 898. Besides, these, the entries of Jamabandi for the year 1972-73, Exhibit DW1/A clearly show that Smt. Ghogan was entered as the co-owner in khasra number 898 to the extent of one-half share along with the plaintiff. The jamabandi, Exhibit PB, is also for the year 1072-73 but in that Smt. Ghogan is not recorded as owner. It has not been explained which of the two entries in the jama-band's are correct as both the documents pertain to the same year of 1972-73. The jamabandi, copy of which is Exhibit DW I/A, seems to have been filed on 7-6-1974, while copy of the jamabandi, Exhibit PB, seems to have been filed on 20-1-1976. The suit was filed in April, 1974. The defendants claim their title from Smt. Ghogan but at the same time their assertion is that only 2 bighas of land has been transferred in their favour. If this contention of the defendants is accepted then too Smt. Ghogan remains a co-owner in khasra number 898 and she is not divested of her title absolutely. In view of the facts which have been placed on the record it is manifestly clear that the ownership of Smt. Ghogan with respect to khasra number 898 is directly ,in dispute and her status as widow of 'Sukh Ram is also in dispute. It is an established proposition of law that a co-owner can sue a trespasser for possession and can successfully get a decree for possession against the trespasser provided he sues on behalf of all the co-sharers or for the benefit of all the co-sharers and does not deny the title of other co-sharers. In this case the plaintiff does not accept Smt. Ghogan as a co-owner and on the other hand denies her title. Therefore, the matter of deciding the title of Smt. Ghogan in the property in dispute is directly involved and if it is finally held that Smt. Ghogan had any title to this property then in that case it is just possible that the suit may not be maintainable. In any event no final adjudication can be given regarding the title of Smt. Ghogan to the suit property |or her status as a widow of Sukh Ram in the absence of Smt. Ghogan. In these circumstances, I hold that Smt. Ghogan is a necessary party for passing an ef-fective decree.

15. In view of the above discussion, this appeal fails and the same is dismissed and the order of remand passed by the District Judge is upheld.

16. The parties are left to bear their own costs.


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