Bhagawan Behera vs Subal Rout

Barman, J.—Defendant is the Appellant. The suit out of which this appeal arises was filed by the Plaintiff for declaration of title over the suit lands, confirmation of possession over Kha and Ga Schedule lands and recovery of possession of Ka schedule land.

The Plaintiff''s case is this: The suit lands belong to him. The Defendant has no right, title or interest over the suit lands and he never possessed the same at any time. On August 5, 1955, the Defendant forcibly constructed a house encroaching upon Ka Schedule land. While the Plaintiff was contemplating to file a suit, the Defendant threatened to dispossess the Plaintiff from Kha and Ga Schedule lands also apart from Ka Schedule land. The Defendant pleaded his title to the suit lands and in the alternative acquisition of title thereto by adverse possession.

Ka Schedule land is plot No. 543. Kha Schedule land is plot No. 538 and Ga Schedule land is plot no: 537. The Plaintiff claims recovery of possession of Ka Schedule land (plot No. 543) and confirmation of possession of Kha Schedule land (plot No. 538) and Ga Schedule land (plot No. 537). The Defendant''s case in substance is that Kha Schedule and Ga Schedule lands appertain to Defendant''s plot No. 539; the Plaintiff was not in possession within 12 years prior to the suit; assuming the Plaintiff had title the suit is barred by limitation. With regard to Ka Schedule land the Defendant''s case is that it does not belong to the Plaintiff. A Civil Court Commissioner was appointed to measure the land. His report was Khata Ka Schedule land does not appertain to Plaintiff''s plot; that Kha and a Schedule lands were separated by long-standing fence from the Plaintiff''s plot.

The trial court dismissed the suit so far as Ka Schedule land is concerned. As regards Kha and Ga schedule lands the trial court also dismissed the suit on these findings; namely, that Kha and Ga Schedule lands are separated by long-standing old fence; that Plaintiff''s evidence of possession of Kha and Ga Schedule lands was not made out and all co-sharers were not made parties. In the result the trial court dismissed the Plaintiff''s suit in full. The Plaintiff appealed to the lower appellate court. At the outset the Plaintiff did not press the appeal so far as it related to Ka Schedule land and confined his appeal to the Kha and Ga Schedule lands only. The learned lower appellate court decreed the suit in favour of the Plaintiff so far as Kha and Ga Schedule lands are concerned on the finding that the Plaintiff has got title; that the Plaintiff proved possession and that the Plaintiff''s suit is maintainable though the other co-owners having interest in the suit lands have not been made parties. Hence this second appeal.

On merits, the learned lower appellate court found that the Plaintiff has succeeded in establishing his possession within 12 years before the date of the suit and that the Plaintiff established title to the suit land. The Defendant Appellant can not successfully challenge either the Plaintiff''s title or his possession.

But the main point urged by the Defendant Appellant herein is, whether the suit was bad for non-joinder of parties. The Plaintiff filed the suit against the Defendant Bhagawan Behera alone. It however appears that apart from the Defendant Bhagawan there are others, namely, Brajabandhu, Maguni and Indramani all living joint in properties. The Defendant''s point is that these others, who are not made parties, are also co-sharers in joint possession with him (Bhagawan). According to the Defendant, a decree against Bhagawan alone is not effective against others. Hence a suit is not maintainable by reason of Non-joinder of necessary parties. In support of his contention the Defendant Appellant relied on a decision of the Calcutta High Court in Arunadoya Chakrabarty and Others Vs. Mahammad Ali and Others, , which has been consistently followed by this Court as good law in preference to other views on this point. The calcutta High Court expressed their view as follows:

If any of the persons in possession is left out, he remains in possession as not being affected by the decree, and the decree as one in ejectment and for possession becomes infructuous because the persons ejected as being bound by thee decree can always come in under the person who remains in possession; and secondly there is a certain amount of risk involved in not making the persons in actual possession Defendants, for in execution of the decree, persons may happen to be turned out who may then bring actions against the Plaintiff for wrongful dispossession, not being bound by the decree.

These principles governing the rule of joinder of Defendants in an action for ejectment as expressed above in the Calcutta decision were accepted with approval by a Division Bench decision of this Court in Kanhu Padhan v. Bhutulu Padhan,

The learned Counsel for the Plaintiff Respondent relied on a recent Division Bench decision of Allahabad High Court in Raja Himanshudhar Singh v. Ram Hitkari and Ors. Which in fact reiterated an earlier decision of the Allahabad High Court in Shibban v. Allah Mehar. The Allahabad view has not however been accepted by other High Courts. this Court accepted the Calcutta view.

In the present case, an effective decree can be passed only in the presence of Brajabandhu Behera, Maguni Behera and Indramani Behera apart from the Defendant Bhagawan Behera. In fact the Plaintiff himself in cross-examination said that he had filed the suit against all. But the suit was filed against the Defendant Bhagawan Behera only. The evidence is that all these four are living joint in properties. Thus, on the admission of the Plaintiff himself, he should have made all of these four persons parties to the suit: In such circumstances, no effective decree can be passed in the absence of the other co-sharers of the Defendants Bhagawan Behera. The Plaintiff''s suit therefore must fail on the ground of non-joinder of necessary parties as Defendants.

The decision of the learned lower appellate court is set aside. The Plaintiff''s suit is dismissed. This appeal is allowed with costs throughout. Appeal allowed.