Madan Lal L. Raja Ram and Others vs Munshi Datu and Others

Mehar Singh, J.—This is an appeal by the plain tiffs from the judgment and order, dated 16-9-1955, of the Subordinate Judge First Class of Sangrur whereby their plaint has been returned to: them under Order 7, Rule 10, Code of Civil Procedure, for presentation to proper Court.

The facts of the case are these. Madan Lal Plaintiff was the owner of 845 bighas of land-situate in the area of village Bishanpura. Out off this land he made a gift of300bighas and 18 biswas in the name of his son Lachhmi Narain Plaintiff" and of 306 bighas and 12 biswas in the name of his wife Vadya Wati Plaintiff on 28-3-1952, by two mutation entries Nos. 114 and 115. The Plaintiffs allege that each one of them was in actual physical possession of his own land and that was under his self-cultivation.

Defendants 1 to 13 attempted to take forcible possession of the lands of the three Plaintiffs, that resulted in the Plaintiff taking proceedings against them u/s 145, Code of Criminal procedure again and during the pendency of those proceedings on 8-3 1954, those 13 Defendants attempted to take forcible possession of the lands of the three Plaintiffs, but were unsuccessful. The proceedings of their criminal case u/s 145, Code of Criminal Procedure, ended, on 2-4-1954 in favour of those Defendants- and against the Plaintiffs. Thereupon immediately after that those 13 Defendants jointly took possession of the lands of all the three Plaintiffs and. re-moved standing crops in some of those lands.

The details of the value of the standing crops of each Plaintiff removed by those Defendants are given in the plaint. With regard to Defendants 14-to 17 the allegation of the Plaintiffs is that they have had certain entries made in revenue papers-in their favour as tenants of the Plaintiffs. Upon these allegations the Plaintiffs have brought a suit for possession of the lands against all the 17 Defendants and for recovery of Rs. 1000/- as damages being the value of the standing crops removed by Defendants 1 to 13.

The Defendants have taken a number of pleas in defence but the only two pleas that are material for the purposes of this appeal are (a) that the suit with regard to the claim for Rs. 1000/- as value of the crops is not cognizable by a civil Court, and (b) that the suit is bad for mis-joinder of parties as also for causes of action.

The learned trial Judge settled issues on these two preliminary objections by the Defendants as also on the defenses raised on merits. The trial of the suit has proceeded and evidence of the parties has been taken upon all the issues in the case.

The Plaintiffs have closed their evidence and the evidence of the Defendants is said to have been closed by the trial Court according to Order 17, Rule 3, Code of Civil Procedure. So that a stage has arrived in the case for the trial Judge at which he can dispose of all the issues by giving findings upon them. Instead what the learned trial Judge has done is this, just to give findings on the first two preliminary questions. He has held that the jurisdiction of the civil Court is barred in so far as the claim of the Plaintiffs for the amount of Rs. 1000/- is concerned as that claim is covered by Sections 14 and 77(3) (n) of the Tenancy Act being a claim for a sum recoverable as rent u/s 14 of that Act and thus being cognizable by a Revenue Court alone and that the suit-is bad for misjoinder of Defendants 14 to 17 since they have not trespassed .upon any of the Iands in suit but is not so with regard to Defendants 1 to 13.

In view of these findings the learned trial Judge has passed no order with regard to Defendants 14 to 17, but as regards the claim of the Plaintiffs for the amount of Rs, 1000/- he has ordered the re turn of the plaint under Order 7, Rule 10, Code of Civil Procedure, for presentation to a proper Court. The order directing return of the plaint for presentation to proper Court is an appeal able order and it is against this part of the order of the learned trial Judge that this appeal is directed.

The question of jurisdiction as also the question of mis-joinder of parties and causes of action was to be decided by the learned trial Judge upon the allegations in the Plaintiff and not with reference either to the defenses of the Defendants or any evidence led by the parties. In this State proviso to Sub-section (3) of Section 77 of the Tenancy Act has not been enacted and therefore even with regard to the claim of Rs. 1000/- all that the learned trial Judge was to see was the plaint and not the written statement of the Defendants. So that for the purposes of decision of the two preliminary questions, it was not necessary for the learned trial Judge to take any evidence or to go into the consideration of evidence.

In other words a decision on those preliminary questions could have been given immediately had the parties pressed for it. It is correct that the Defendants did raise the objections relating to jurisdiction and mis-joinder of parties and causes of action in their written statement and issues on '' these questions have been settled in the case, but the fact remains that, in spite of this, the parties, or in particular the Defendants, did not press for decision of those issues immediately.

The trial was allowed by the parties to proceed to close. It was then, as stated, that the learned trial Judge disposed of those two preliminary issues as above.

On the question of jurisdiction it is clearly, stated by the Plaintiffs in their plaint that the crops had been sown by them and were removed and harvested by Defendants 1 to 13. If the crops had been sown by those Defendants, there is no difference of opinion between the learned Counsel for the parties that this part of the case of the: Plaintiffs would have been covered by Sections 14 and 77(3)(n) of the Tenancy Act.

However, the learned Counsel for the Plaintiffs contends that the crops, upon their allegations in the plaint had been sown by the Plaintiffs, and). Therefore a claim for the value of the crops removed in these circumstances does not fall within the scope of the said provisions. He relies upon Nazanv v. Joti Mai 119 Pun Re 1894 (A).

In that case the Plaintiff had claimed his share-of the value of certain reeds growing upon the land owned by him and others, & removed by some of the Defendants. The objection on behalf of the Defendants was that Che claim for the value of the. reeds was a claim by a co-sharer in an estate or. holding for a share of the profits thereof under Clause (k). of Section 77(3) of the Tenancy Act, and thus was not cognizable by a civil Court. The-learned Judge observed at p. 458 of the report.

It is argued that the suit is either a revenue- one falling under Clause (k), Section 77(3), Punjab Tenancy, Act, or an unclosed suit over Rs. 100/- in value, excluded from the cognizance of the Small Cause Court either by Article (11), or Article (31) of the 2nd Schedule of Act 9 of 1887.

In my opinion the suit does not fall under clause(k) as one ''by a co-sharer in a holding for a share of the profits thereof, inasmuch as that clause must be taken to refer to suits by one or more, co-sharers against another. In the present case Plaintiff''s co-sharers are merely nominal Defendants, and the real Defendants are alleged to be trespassers who have no proprietary right in the land. Their plea of course, is that they are the sole owners of the land, but this does not alter the nature of the Plaintiff''s claim.

The suit plainly, I think, does not fall u/s 14, Punjab Tenancy Act, or Clause (n), of Section 77(3), as there is no allegation that Defendants. 1 to 3 occupied the land and cultivated it, but merely that they forcibly took from the land certain produce of spontaneous growth. I think then that the case was properly- heard in the civil''. Court.

This is the nearest case to the facts of the present case and no other reported case on the question has, been referred to by either side. It appears to me clear that where the land not having been occupied, and cultivated by the Defendants they did not sow the crop, if they removed the crop, the claim for the value of the crop is not a claim falling under Sections 14 and 77(3) (n) of the Tenancy Act and is tri able by a Civil Court.

Upon the allegations of the Plaintiffs in their plaint it is evident that their claim with regard to'' the sum of Rs. 1000/- as value of the crop not having been sown by the Defendants but removed by them is cognizable by a Civil Court. The learned trial Judge has referred to certain decisions of this Court in his judgment to support his finding-that this part of the case of the Plaintiffs falls under Sections 14 and 77(3) (n) of the Tenancy Act, but on facts none of those cases has any bearing upon this case.

So the decision of the learned trial Judge on the question of jurisdiction as regards this part of the case of the Plaintiffs is wrong and is set aside. It may be that if the Plaintiffs are not able to-establish their averments in the plaint with regard to this part of their claim, their suit may be dis missed in this respect, but as the plaint alone is to-be seen in so far as the question of jurisdiction is concerned, the claim as laid in the plaint is cognizable by a civil Court.

On the second question the learned trial Judge has come to the conclusion that the suit is bad for multifarious ness in so far as Defendants 14 to 17 are concerned, but he has made no order with regard to them. The only allegation against these Defendants in the plaint is that they have had certain wrong entries in revenue papers made in their own favour, but the relief claimed against them is for possession, of the lands and for recovery of the said amount of Rs. 1000/-.

It may be that in view of the findings of the learned trial Judge no such relief can be granted to the Plaintiffs as against these Defendants, in which case the suit as against them will have to be dismissed and it will be in the discretion of the learned trial Judge to award or not to award costs to them in so for as jointer of other 13 Defendants in .the case as the joinder of causes of action '' is concerned; the learned trial Judge has found that the ''suit is not this account.

It is clear from the plaint that each one of the three-Plaintiffs was in possession separately of his own lands and was dispossessed by an independent act of trespass in each case though according to the ''plaint by all the 13 Defendants acting jointly. Since the allegation against these Defendants is that in the case of each trespass they acted jointly and dispossessed each Plaintiff, of course all the 13 of them can be made party Defendants to a suit'' by each one of the Plaintiffs.

But the question is whether the three plain tiffs can bring one suit in respect of three independent causes of action in as much as there were three independent trespasses in this case on the lands of the three Plaintiffs, though the trespasses might have been successive and carried out by the 13 Defendants within a short space of time. The learned Advocate General, appearing for the Plaintiffs, refers to Order 1, Rule 1, and Order 2, Rule 3, CPC and contends that the suit is not bad for misjoinder of the Plaintiffs and causes of action because common questions of law and fact arise in this case.

Order 1, Rule 1 says

All persons may be joined in one suit as Plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly, severally or in the alternative, where if such persons brought separate suits, any common question of law or fact would arise.

It appears to me that the learned Advocate General thinks that since the 13 Defendants have committed three successive trespasses on the lands belonging to three separate Plaintiffs, common questions of law and fact arise with- regard to the three trespasses. Each trespass though committed by the same set of Defendants was an independent act? and transaction in relation to the land of a separate Plaintiff.

It may be that to prove each act of trespass same; witnesses were to be produced by the Plaintiffs.; But beyond this I do not see there is any commotiaquestion of law or fact involved in all three cases of trespass. It'' is true that in all the three similar questions of law and fact arise, but that far from saying that those are common questions. Therefore, in my opinion, Order 1, Rule 1, CPC does not help the Plaintiffs in this respect.

Order 2, Rule 3(1) says

Save as other wise provided, a Plaintiff may unite in the same suit several causes of action against the same Defendant or the same Defendants-''''Jointly; and any Plaintiffs having causes of action in which they are jointly interested against the same Defendant or the same Defendants jointly may unite such causes of action in the same suit.

An attempt is made on the part of the Plaintiffs to bring their case under second part of this sub-rule, but it is apparent that in this case all the three Plaintiffs are not jointly interested in each one of the three separate acts of trespasses. Each one of the three Plaintiffs is only interested in the trespass upon his part of the lands and not in the trespasses upon the lands of the other two Plaintiffs. This rule, also, obviously, has no application to the present case.

In this connection the learned Advocate General has relied upon two reported cases to support his contention. The first case is Loke Nath Surma v. Keshab Ram AIR 13 Cal 147 (B), but in that case, though it is not clearly stated, it is apparent from the judgment that all the Plaintiffs had a'' joint right in the land for which they sought a de cree for possession. On facts therefore the case has no relevancy to the present case.

The second case is Radha Rani Dasi and Another Vs. Sukdeb Bhattacharjee and Others, and on a cursory reading of the case it appears to support the contention of the learned Advocate General, but when the facts of the case are considered the result is otherwise. In that case two Plaintiffs had acquired jamai right to certain lands. In fact one of the Plaintiffs had: acquired such rights in two plots and the other Plaintiff had acquired such right in the third plot.

Two other persons held all the three plots under a korfa tenancy tenure from the original owners. Those two persons mortgaged their korfa tenancy right to the principal Defendant, who sued upon the mortgage, and in execution of the decree, purchased the rights of korfa tenants. The Plaintiffs alleged that the principal Defendant acquired no title by hits purchase and was accordingly liable to be evicted.

Upon these allegations the trial Judge decreed the suit, but on appeal, the appellate Court dismissed the suit as bad for multifarious ness. The learned Judges agreed with the appellate Court that a decree for the third plot could not be passed in favors of the first Plaintiff and for the first two plots in favors of the second Plaintiff, but they held that persons can unite as Plaintiffs though seeking individual relief�s in cases where the investigation would to a great extent be identical in each individual case.

Reliance was placed upon two English cases and the second English case made reference to a similar English rule to procedure as in Order 1, Rule 1. I think the decision of the learned Judges is correct inasmuch as there was a common question of law as also of fact arising out of a mortgage under which the mortgagee Defendant in that case laid claim to korfa tenancy. Therefore in that case there was strictly no disjoined of parties and causes of action. It does not help the Plaintiff.

In my opinion in this case there is disjoined of the Plaintiffs as also of causes of action, but the suit cannot be dismissed on this ground because of the provisions of Order 1 Rule 9 in so far as the disjoined of parties is concerned and the same principle must also apply in regard to the disjoined of causes of action.

The proper course for the trial Court was to treat the plaint as a plaint by one of the Plaintiffs and to give an option to; the other two Plaintiffs, if they so desired, to file separate plaints in respect of the causes of action in which they were concerned. But the learned trial Judge paid no attention to this aspect of the case at) the earlier stages when this could have been done readily and without difficulty. As stated he allowed the suit to be tried as a whole on all the the issues and decided the question of multifarious ness after the close of the case.

The learned Advocate General for the Plaintiffs in these circumstances, argues that the Plaintiffs should not now be referred to institution of three separate suits inasmuch as that would mean a fresh trial of the three suits from the beginning and the parties will have to lead the same evidence in each separate suit thrice that has been led by them in the present suit.

The learned Counsel for the Defendants replies that the Defendants have been prejudiced in the trial of the case in the manner in which it has been tried, but, apart from pointing out that the Defendants have been inconvenienced and harassed in leading evidence, he has not been able to show how they have been prejudiced by the mode of the trial in the present case. So there has in fact been no prejudice to them by the manner of trial in this case.

In AIR 1937 42 (Privy Council) the Defendants had in their written statement raised the plea that the suit was bad for disjointed & multifariousness but the suit was allowed to proceed, in spite of the objections and resulted in a decree. When the case was taken before their Lordships of the Privy Council, the question was again raised there, and their Lord ships observed :

The written statement of the present Appellants (as is common in India) contain a plea that the suit was bad for disjointed or multifarious ness, but their Lordships have not been satisfied that at any time before the commencement of the trial any appropriate and serious application was made to the Court upon the face of the pleading for an order requiring the Plaintiffs to amend by discarding portions of their claim. They are satisfied, however, that the heavy task which fell to the learned trial Judge of dealing with so many matters in one trial was ably and fairly discharged and that he arrived at a correct view of the facts.

It is desirable to point out that under the rules as they now stand the mere fact of misjoinder is not by itself sufficient to entitle the Defendant to have the proceedings set aside or action dismissed. Section 99 of the Code is in plain words, but their Lordships, may repeat what was said by Lord Justice Pickford in Thomas v. Moore, (1918) 1918 KB 555 (E) at p. 565:

Whatever the law may have been at the time When Smurthwaite v. Hannay (1894) AC 494 (P) was decided, joinder of parties and joinder of causes of action are discretionary in this sense, that if they are joined there is no absolute right to have them struck out, but it is discretionary in the Court to do so if it thinks right.

Their Lordships are of opinion that in the present case no effect can be given to this object of misjoinder, the merits of the case having been satisfactorily disposed of in spite of the complication of the proceedings."

In the present case though the final decision has not yet been given, but I have already pointed out that the whole of the evidence of the parties has; been led on all the issues in the case and it is ripe for a final decision. If now discretion is exercised against the Plaintiffs and they are directed to amend the plaint so as to be a plaint on behalf of one of them, leaving the other two Plaintiffs to institute separate plaints, the result would be a practical retrial of all three cases, which in the circumstances would not appear to be fair, because, in spite of the question having been raised in the written statement and having been put in issue, it was not pressed for decision at an early stage before the learned trial Judge before he pro ceeded with the trial of the case.

In view of the observations of their Lordships of the Privy Council I do not consider this is a fit case that such discretion should be exercised against the Plaintiffs and they should be forced to start all over again with three separate suits. This is particularly so becauses even in the three separate suits the Plaintiffs will have to lead the very same evidence in each suit.

It is true, as pointed out by the learned Counsel for the Defendants, that, if the suit is decreed, the decree will have to be somewhat elaborate in as much as it will have to be described out of the Plaintiffs who succeeds against which particular Defendant, but in the way in which the parties have allowed the suit to be tried, this consideration alone does not entitle the Defendants to require the Plaintiffs to bring three separate suits against them at this stage.

The learned Counsel for the Defendants fur there urges that it may be that if the Plaintiffs succeed, that part of the decree relating to each one of the three Plaintiffs may nob be against the Defendants, but if that happens then naturally that part'' of the suit with regard to that type of Defendants will be dismissed and it will remain in the trial Court how to award costs in such circumstances.

In the view taken in this case, the appeal is accepted and the trial Court will proceed with the trial and decision of the claim of the Plaintiffs also with regard to Rs. 1000/- as the value of the standing crops said to have been removed by the Defendants.

I may state here again for the sake of clarity that this decision proceeds only upon consideration of allegations in the plaint and if upon consideration of the evidence those allegations are not established, then naturally the trial Court would reach the inevitable conclusion in the circumstances. In this appeal the parties are left to bear their own costs in view of its peculiar circumstances. The parties through their counsel are directed to appear in the trial Court on 23-1-1956.