Khumanthem Joykumar Singh And Othrers vs Khumanthem Ongbi Khurai Devi And Others

M.V. Muralidaran, J

This Second Appeal is directed against the judgment and decree dated 26.12.2012 passed in A.S.No.5 of 2005 whereby confirming the judgment and decree dated 11.3.2005 in O.S.No.4 of 1999 on the file of the Civil Judge (Senior Division) No.I, Manipur East. The appellants herein are the legal representatives of the original deceased plaintiff Khumanthem Amu Singh.

Brief facts is that the suit land measuring 0.65 acres under Patta No.78/91 covered by C.S. Dag No.1487 of Changangei Mayai Leikal, Imphal West, originally belonged to one late Tamor Singh and he died on 7.10.1948 leaving 5 sons viz., (i) Ibohal; (ii) Iboyaima; (iii) Singhajit; (iv) Shital and (v) Tombi Singh. Ibohal Singh died on 15.7.1968 leaving behind 3 sons viz., (i) Anganhal; (ii) Amu and (iii) Iboton and 4 daughters viz., (i) Shabi; (ii) Leiren; (iii) Mani and (iv) Nupimacha Devi.

After the death of Ibohal Singh, his sons Anganghal Singh, Amu Singh (plaintiff); Iboton Singh were allowed by other remaining heirs to inherit the suit land as the remaining legal heirs relinquished their share in favour of three sons. Anganghal Singh died in the year 1992 leaving behind the proforma defendants 6 to 12 as legal heirs. Iboton Singh died in the year 1991 leaving behind the principal defendants 1 to 5.

In the month of July 1998 when defendant No.7 checked to the SDC, Patsoi, he found that late Iboton Singh only was recorded as pattadar, then in the names of defendants 2 to 4. These entries were made behind the back of the original plaintiff and for proforma defendants. In the month of August/September 1998, when the deceased plaintiff demanded partition of the suit land into three shares being joint owner and possessor, the defendants have refused to cause partition of the suit land. Hence, the original plaintiff has filed the suit for the following reliefs:

(a) a decree for declaration that the plaintiff is entitled to 1/3rd share in the suit land;

(b) a declaration that the partitions and mutations of the suit land in the name of the defendants and proforma defendants in Mutation Case No.735 of 1995, Misc. Case No.203 of 1995, Mutation Case No.795 of 1998 and Misc. Case No.252 of 1998 of the SDC (Patsoi) are null and void, in operative and not binding upon the plaintiff;

(c) the partition of suit land into three shares by metes and bounds in order to make declare that the plaintiff has 1/3rd share in the suit land.

Defendants 1 to 5 filed written statement stating that as per the family arrangement made some time in the year 1960, during the life time of Ibohal Singh, the suit land measuring 0.65 acres was allowed to the share of late Iboton Singh (husband of defendant no.1 and father of defendant Nos.2, 4 and 5) and two other homesteads measuring 1.10 acres and 0.42 acre left by Tamor Singh were allowed to share portions of Singhajit Singh, Shital Singh, Iboyaima Singh, Tombi Singh and other legal heirs of late Ibohal Singh, excluding the defendants 1 to 5.

It is stated that under the said family arrangement, the agricultural land under Patta No.87, covered by C.S.Dag No.462 and 463 measuring 1.43 acres of Village No.78, Changangei was allowed to the share of late Angahal Singh and on his death, the said land devolved upon the proforma defendants 6 to 12 and another agricultural land measuring 1.56 acres under new patta No.88 covered by C.S.Dag No.322 of Village No.78, Changangei was allowed to the share of the plaintiff. Since then the plaintiff has been residing inside the above said homestead land measuring 1.10 acres and the share of land of late Tombi Singh was mutated in the names of his wife and children, one of his son Iboyaima Singh had relinquished his share in favour of his two brothers. Hence, the principal defendants have been the owners in actual physical possession of the suit iand since the year 1960 and whereas the plaintiff has been the owner of the homestead measuring 1.10 acres as well as the agricultural land measuring 1.56 acres following division of shares in respect of their ancestral agricultural and homestead lands.

It is also stated by the defendants 1 to 5 that though the plaintiff had once, title over the suit land, but his title over the suit land ceased to exist on the very day the above said family arrangement was made and with that the plaintiff's title over the said land had already been passed on the defendants and therefore, the plaintiff is not entitled to claim partition of the suit land. According to the defendants, the mutation of the land in question in the name of the defendants 2 to 4 were done correctly in consequence of the family arrangement made during the life time of late Ibohal Singh and subsequent recording in the name of defendant No.3 and mutation In the names of defendant No.7 and 8 were made legally as it will be at liberty of the defendants 1 to 5 to transfer their portion of land to any other person or persons.

The defendants 1 to 5 have also made counter claim In the suit inter alia that-

(1) Though there was no partition of the suit land, there was an actual family arrangement and according to the said arrangement, the suit land measuring 0.65 acres should be the share of late Iboton Singh but the agricultural lands left by late Tamor Singh shall be the shares of the plaintiff and late Angahal Singh and the homestead lands measuring 1.10 acre and 0.42 acre should be the joint share portions of the plaintiff and other legal heirs of late Tamor Singh.

(2) The defendants 1 to 5 have been residing inside the suit land.

(3) The plaintiff who knows well of the family settlement did not raise any claim during the life time of late Iboton Singh but his civil action came up only after the death of late Iboton Singh.

Stating so, the defendants 1 to 5 have made counter claim as under :

(a) a decree for declaration that the plaintiff has no right, title and interest in the suit land;

(b) a decree for declaration that the said family settlement are binding to the parties in the suit and other legal heirs of late Tamor Singh.

(c) a decree for declaration that the defendants 1 to 5 are the owners in actual physical possession of the suit land;

(d) costs of the suit.

Defendant Nos.6 to 12 filed their written statement stating that mutation was made without following the procedure prescribed under the Manipur Land Revenue and Land Reforms Act, 1960. It is stated that late Khumanthem Angahal Singh had 1/3rd share in the suit land and on his death his share of land devolved upon the defendants 7 and 8 as other legal heirs of Angahal Singh have either abandoned or relinquished their claim over 1/3rd portion of the suit land.

The plaintiff filed re-joinder denying the averments made in the written statement of the defendants, more specifically, denying the averments made in the counter claim, the plaintiff stated as under:

(a) due to admission of the fact by the defendants that the suit land was the share of late Ibohal Singh being inherited from his father Tamor Singh and there has been no partition of the said land amongst the legal heirs of Ibohal Singh, the plaintiff has no share in the homestead lands measuring 1.10 acres and 0.42 acre which are the shares of other legal heirs of Tamor Singh, Ibochouba Singh and Ibotombi Singh. The homestead measuring 0.10 acre is the share of Iboyaima, Singhajit, Shital and Tombi Singh and the homestead measuring 0.42 acre is the share of Ibochouba Singh and Ibotombi Singh.

(b) The plaintiff denied that the defendants are in possession of the suit land.

Based on the pleadings, the trial Court framed the following Issues:

(1) Whether the plaintiff for the reasons alleged in the plaint is entitled to 1/3rd share of the suit land by way of inheritance?

(2) Whether there was a family settlement being made by late Ibohal Singh during his life time in 1960. If so, whether the plaintiff ceased to have right and title over the suit land or the suit land was agreed to be the joint share of the defendants in the family settlement?

(3) Whether the mutation and partition being made by the S.D.C., Patsoi in favour of the defendants and proforma defendants are nullity in the eye of law and hence not operative?

(4) Is there any cause of action?

(5) Is the plaintiff entitled to the reliefs claimed?

(6) Is the suit time barred?

(7) Who is in possession of the suit land?

(8) Whether there was any family arrangement being made by late Ibohal Singh during his life time?

The trial Court also framed additional Issue on the counter claim as under:

Whether the suit suffers from defect of parties for not impleading all the L.Rs. of late Tamor Singh and late Ibohal Singh?

Before the trial Court, the deceased plaintiff examined himself as P.W.1. TvI. Shitaljit Singh, Angouton Singh and Biramangol Singh were examined as P.W.2 to 4 and Exs.A1 to A13 were marked. On the side of the defendants four witnesses were examined and Exs.B1 to B8 were marked.

Upon consideration of oral and documentary evidence, the trial Court, dismissed the suit as the same suffered from defect of parties. Assailing the same, late plaintiff Khumanthem Amu Singh preferred Civil First Appeal No.5 of 2005. Pending appeal, the sole appellant Khumanthem Amu Singh died and his legal heirs were impleaded as appellants. By the judgment dated 26.12.2012, the First Appellate Court, dismissed the appeal. Aggrieved by the same, the appellants have preferred the present Regular Second Appeal by raising the following substantial questions of law:

(i) Whether the trial Court as well as the First Appellate Court can dismiss the suit on vague plea of the principal defendants 1 to 5 that is the suit is defect of parties?

(ii) Whether the Court below can make out case outside the pleadings i.e., on extraneous consideration and material beyond the pleading while passing the impugned judgment?

(iii) Whether the Court below illegally passed the impugned judgment without affording chance to the plaintiff/appellant if the Court below deems necessary parties are not impleaded in the suit?

(iv) Whether the Court below can dispose of suit without deciding the counter claim made by the principal defendant Nos.1 to 5 in the case?

(v) Whether the judgment can be passed without deciding all the issues framed thereunder i.e., against the mandatory provisions of Order XX, Rule 5 of C.P.C.?

(vi) Whether the Court below erred in appreciating the provisions of law applicable, pleadings of the parties and evidences adduced by them thereby vitiating the impugned judgment and decree?

Assailing the judgments of the Court below, the learned counsel for the appellants submitted that the trial Court though framed eight Issues and one additional Issue, dismissed the suit as the same suffer from defect of parties by answering Issue Nos.1 and 2 and additional Issue and it has not decided the other Issues and more specifically the counter claim has not been answered by the trial Court. He would submit that similarly the First Appellate Court while dismissing the appeal as devoid of merit erred in holding that the plaintiff/appellant did not move the trial Court as well as the Appellate Court for impleading those absentee legal heirs of late Ibohal Singh on record. Arguing so, the learned counsel for the appellants submitted that the impugned judgments suffer from an infirmity and therefore, the same have to be set aside.

Reiterating the findings of the Court below, the learned counsel for the contesting respondents submitted that the trial Court having found that the suit is hit by defective parties, rightly dismissed the same, which was also rightly affirmed by the First Appellate Court and therefore, there is no necessity to interfere with the same. As far as merits of the claim made by the deceased plaintiff is concerned, the learned counsel submits that already family settlement was made between the parties and therefore, question of seeking partition in respect of the suit land, which is in exclusive possession of the defendants 1 to 5, is not maintainable.

This Court considered the submissions made by the learned counsel appearing on either side and perused the impugned judgments and also other materials available on record.

Originally, the suit was instituted by the father of the appellants and pending first appeal, the original plaintiff Khumanthem Amu Singh died and the appellants herein were brought on record as legal heirs of the original plaintiff.

The case of the original plaintiff is to divide the suit land into three and allot one such share to him. On the other hand, the claim of the defendants 1 to 5 is that the suit land was allotted to them by a family arrangement and therefore, the plaintiff has no right to seek partition in the suit land. On the above pleas, the parties have adduced their evidences and marked documents.

Before the trial Court, the defendants 1 to 5 have made counter claim and their counter claim reads thus:

(a) a decree for declaration that the plaintiff has no right, title and interest in the suit land;

(b) a decree for declaration that the said family settlement are binding to the parties in the suit and other legal heirs of late Tamor Singh;

(c) a decree for declaration that they are the owners in actual physical possession of the suit land; and

(d) cost of the suit.

It is seen from the judgment of the trial Court, it had framed Issue- Whether there was any family arrangement being made by late Ibohal Singh during his life time?. However, the said Issue has not been answered by the trial Court. On the other hand, the trial Court firstly answered Issue No.1- Whether the plaintiff for the reasons alleged in the plaint is entitled to 1/3rd of the suit land by way of inheritance?. The finding of the trial Court with regard to Issue No. 1 is as under:

"It is, therefore, without receiving assent, consent or statement of defence from the said nine surviving heirs of late Ibohal Singh in respect of the assertion made in the plaint that they have relinquished their claim over the suit land in favour of the three sons of late Ibohal Singh, the question involving in the issue whether the plaintiff is entitled to 1/3rd share of the suit land left by late Ibohal Singh cannot be decided effectively as a complete and final decision in this regard could be made only in a proceeding taken up in their presences. Hence, this issue made answered in the manner stated above."

After answering Issue No.1, the trial Court proceeded to answer Issue No.2- Whether there was a family settlement being made by late Ibohal Singh during his life time in 1960, If so, whether the plaintiff ceased to have right and title over the suit land or the suit land was agreed to be the joint share of the defendants in the family settlement?. While answering Issue No.2, the trial Court, took note that Issue No.8 and Issue No.2 are similar meaning and therefore, the matters involving in both the Issues are taken up together or for consideration and finally arrived at the conclusion as under:

"In view of the evidence rendered by D.Ws. No.1 and 2 and admission in evidence made by P.W.No.1, it may be said that the question whether there was a family settlement made by late Ibohal Singh during his life time is nearly made answered but a conclusion in this regard could not be made drawn in the absence of the nine other surviving heirs of late Ibohal Singh who are not made parties in the suit as by the implication of the principle provided under Order 1(3) C.P.C., 1908, the said nine legal heirs whose particulars are morefully given in the plaint as heirs apparent of late Ibohal Singh but alleging that they have already relinquished their claim over the suit land are still required to be made defendants in the suit. Hence, in the absence of them there could not be an effective answer in the matter in issue.

Having failed to prove this part of the issue it could not be made decided as either that the plaintiff ceased to have right and title over the suit land or the suit land was made to be share of the defendants. This issue is answered accordingly."

After answering the aforesaid two Issues collectively, the trial Court, answered additional Issue- Whether the suit suffers from defect of parties for not impleading all the legal representatives of late Tamor Singh and late Ibohal Singh? The conclusion of the trial Court with regard to additional Issue is as under:

"Considering the impact of both the considered issues, it has decided that the suit suffers from defect of parties as all the legal representatives of late Ibohal Singh are not impleaded as parties in the suit. The said late Tamor Singh died intestate on 7.10.1948, nearly a decade before the enactment of the Hindu Succession Act, 1956, and therefore, it may not be proper to drag him and all his surviving heirs to the area of crisis. But the suit requires to regular and also to be made decided in presence of all the surviving legal heirs of late Ibohal Singh and without impleading all of them, no effective order can be made in the matter in dispute.

Hence, this issue is decided in favour of the principal defendants."

Thus, it is clear that the conclusion of the trial Court in all the aforesaid Issues is that the parties who were made relinquished their claim over the suit land are required to be made as defendants and in their absence, the suit cannot be decided. Such an approach adopted by the trial Court is not correct. It is the bounden duty of the trial Court to give its finding/verdict based on the oral and documentary evidence adduced by both parties and it cannot blindly say that in the absence of other surviving heirs of late Ibohal Singh, the suit cannot be decided. In his plaint, the deceased plaintiff specifically averred that on the death of Ibohal Singh, himself, Angahal Singh and Iboton Singh were allowed by the remaining heirs of Ibohal Singh to inherit the share of Ibohal Singh as they relinquished their share in favour of them. When such being the plea, the finding of the trial Court that without receiving assent, consent or statement of defence from the heirs of Ibohal Singh in respect of the assertion made in the plaint that they have relinquished their claim over the suit land in favour of the three sons of late Ibohal Singh cannot be decided appears to be a wrong conclusion. In fact, the evidence of P.W.1 to 4 supports the said relinquishment.

There cannot be same finding and/or conclusion for three Issues that the suit is hit by defective parties. When the plaintiff has given reason for not arraying the other surviving legal heirs of Ibohal Singh as parties to the suit as they have relinquished their right, the same is sufficient for the trial Court to proceed with the matter on merits of the claim made by the plaintiff as well as the counter claim made by the defendants 1 to 5. However, the trial Court has not effectively answered and/or dealt with the claim made by the plaintiff or the counter claim made by the defendants 1 to 5 in proper manner. When the contesting defendants made their counter claim and let in evidence, it is the bounden duty of the trial Court to answer such counter claim made by the defendants and without answering the counter claim, the trial Court cannot decide the suit that the same is hit by defective parties.

The First Appellate Court has also failed to look into the said aspect with regard to non-answering of the counter claim by the trial Court. In fact, the First Appellate Court recorded that the appellants have failed to implead absentee legal heirs of late Ibohal Singh on record and therefore, the appeal is devoid of merit.

The said finding of the First Appellate Court is unsustainable for the reason that the suit cannot be dismissed for non-joinder of parties in the given facts and circumstances of the case when the plaintiff has given explanation for not impleading the other surviving legal heirs.

Non-joinder of parties is not fatal to a suit. However, a distinction between non-joinder of someone who ought to have been joined and someone whose joinder is only necessary for convenience is necessary. The former are necessary parties, while the latter are only proper parties. Order 1, Rule 9 CPC deals with non-joinder of parties, but is only a procedural provision, which does not affect the substantive rights and duties of parties.

The absence of necessary parties means those parties from whom relief is being claimed are not present, due to which the Court cannot pass any effective decree. In such circumstances, the suit can but does not have to be dismissed. If found legally justifiable, the Court should grant the relief being claimed by the plaintiff by passing a decree between the parties actually before it, so long as that can be done legally and effectively. The defendant can plead non-joinder of parties by the plaintiff. However, he shall have to specify who those parties are and what their interest is in the suit. The defendant has to claim a non-joinder of parties at the earliest, in the written statement. However, he is also required to specify who are the parties who he wants should be impleaded, and the rights claimed by them. Should he only give a vague statement in this respect, it is not sufficient to dismiss the suit on the ground of non-joinder of parties.

In the present suit, the deceased plaintiff claimed partition of one-third share and in his plaint, the plaintiff has categorically stated that on the death of Ibohal Singh, himself, Angahal Singh and Iboton Singh were allowed by the remaining heirs of Ibohal Singh to inherit the Ingkhol share of Ibohal Singh as they relinquished their shares in favour of them. Nothing has been produced by the defendants 1 to 5 to show that the plea of the plaintiff in respect of relinquishment given by the remaining heirs of Ibohal Singh is wrong and at any point of time they have not relinquished their right.

In his evidence, P.W.1 (the original plaintiff) deposed that his father late Ibohal Singh died on 15.7.1968 leaving behind 13 children born to his three wives. Though partition of homesteads belong to his grand father late Tamor Singh was not made during the life time of the said Tamor Singh, it took place after his death as arranged by his surviving sons and in that partition, the homesteads under Patta No.78/88 and 78/104 recorded in the name of late Tamor Singh were divided in favour of the sons of late Tamor Singh. P.W.1 further deposed that the land which became the share of late Ibohal Singh in the said partition was jointly occupied by his sons viz., Angahal Singh, P.W.1 and Iboton Singh as the other remaining legal heirs of Ibohal Singh viz., (1) Shabi Devi, (2) Leiren Devi, (3) Mani Devi, (4) Nupimacha Devi, (5) Tolhal Singh (deceased), (6) Nungshitombi Devi, (7) Amumacha Devi, (8) Leiriktombi Devi, (9) Naba Singh and (10) Ibema Devi had relinquished their shares in favour of the said three sons of late Ibohal Singh. The said evidence was supported by P.W.2, who is the son of late Tamor Singh. The order evidence of P.W.1 and P.W.2 has not been rebutted by the defendants 1 to 5 or other defendants.

The Courts below proceeded on the assumption as though there were co-owners who required to be impleaded and on that basis, wrongly dismissed the suit as not maintainable as the necessary parties had not been joined. In view of the specific case of the plaintiff that the other co-owners relinquished their rights, I am of the view that the Courts below wrongly dismissed the suit as non-joinder of all the surviving legal heirs of late Ibohal Singh. When the plaintiff has given explanation for not impleading the other surviving legal heirs as they had relinquished their rights, the same has to be taken into account by the Courts below and therefore, this Court is of the view that the suit is not hit by defective parties.

That apart, the counter claim made by the defendants 1 to 5 has not been considered by the trial Court in proper perspective. Instead the trial Court, clubbed Issue No.8 with regard to counter claim with Issue No.2 and held that the heirs who have already relinquished their claim over the suit land are still required to be made defendants in the suit and nothing more. When the defendants 1 to 5 claimed that they are the owners in actual physical possession of the suit land and prayed decree to the said effect, it would be necessary for the trial Court to answer the counter claim made by the defendants 1 to 5. Since the counter claim made by the defendants 1 to 5 has not been effectively answered and decided by the Courts below, this Court is of the view that the judgments of the Court below are unsustainable and the same are liable to be set aside.

In the instant case, the defendants 1 to 5 contend and made their counter claim that there was no partition of the suit land, however, by way of family arrangement, the suit land was given to the share of late Ibohal Singh and then to the defendants 1 to 5. It is also stated that agricultural land measuring 1.10 acres was given to the late plaintiff and other heirs. Stating so, the defendants 1 to 5 contended that late plaintiff and the presents appellants have no right and title in the suit land and prayed for a decree for the suit land in favour of them. When such being the claim of the defendants 1 to 5, the same has to be answered by the trial Court based on the oral and documentary evidence produced by the parties. Therefore, this Court is of the view that in the interest of parties and also to resolve the controversy between the parties, all the Issues have to be answered by the trial Court separately based on the oral and documentary evidences produced by the parties and for the said purpose, it would be appropriate to remand the suit back to the trial Court for consideration of the suit as well as the counter claim made by the defendants 1 to 5 afresh. The trial Court is directed to give its finding on Issues wise after affording reasonable hearing to the learned counsel for parties.

In the result,

(i) This Regular Second Appeal is allowed.

(ii) The Judgment and Decree in A.S. No. 5/2005 dated 26.12.2012 passed by the learned District Judge, Manipur confirming the Judgment and Decree in O.S. No. 4 of 1999 dated 11.03.2005 on the file of the Learned Civil Judge (Senior Division) No. 1, Manipur East are set aside.

(iii) The suit being O.S.No.4 of 1999 is remanded back to the trial Court concerned for consideration of the suit as well as the counter claim made by the defendants 1 to 5.

(iv) The trial Court is directed to decide the suit as well as the counter claim made by the defendants 1 to 5 on Issues wise based on the oral and documentary evidence available on record, within a period of two months from the date of receipt of a copy of this judgment, after affording sufficient opportunity of hearing to the learned counsel for both parties.

(v) There is no order as to costs.