Manki Kank Ratan vs Sundarmunda and Others

Fazl Ali, J.—This is an appeal by the plaintiff in a suit which was decreed by the Court of first instance but was dismissed by the lower Appellate Court. The suit related to mauza Chitramo, one of the villages appertaining to a tenure known as lot Hatingchouli which consists of a number of villages and was held by one Lal Makund Nath Sahi Deo under Basargarh estate. It is common ground that in 1894 Lal Makund sold village Chitramo to plaintiff''s ancestor Panreya Manki and that some time after this transaction Panreya granted a lease of the village to the ancestors of defendants 1 to 5. The Basargarh estate had been brought under the Encumbered Estates Act some time in 1895 and in 1910 or 1911 the encumbered estate brought a suit against Lai Makund for the rent of the Hatingchouli tenure and in the execution of the decree which was passed in that suit, the tenure was sold in the year 1913 and purchased by defendant 9, Hanuman Bux.

In 1922 the plaintiff''s father and defendants 1 to 5 brought a suit against Hanuman Bux and certain other persons to recover possession of Chitramo on the ground that the sale held in the execution of the decree obtained by the encumbered estate did not affect their title to that village. During the pendency of the suit the plaintiff''s father died and as his heirs refused to join as plaintiffs, they were impleaded as pro forma defendants and the suit proceeded as between the remaining plaintiffs (that is to say, defendants 1 to 5) and Hanuman Bux and the other defendants. On 30th July 1923 the trial Court granted a decree in favour of the plaintiffs, the operative portion of which ran as follows:

Let it be declared that the plaintiffs and defendant 9 have their rights as rent receivers under defendants 7, 8, 10 and 11 in village "Chitramo" and that the auction-purchase of defendant 1 is illegal and invalid against the plaintiff''s title. Let the plaintiffs recover possession of the disputed village through defendants 7, 8, 10 and 11 only. The contesting defendant 1 alone shall pay the costs of this suit.

It may be stated here that defendants 7, 8, 10 and 11 in that suit included the present plaintiff and other members of his family and defendant 1 was Hanuman Bux who is defendant 9 in the present suit. The passages which have been underlined (here italicized) have to be stressed in view of the plea of limitation which has been raised on behalf of the defendants and with which I shall presently deal. Now, Hanuman Bux being dissatisfied with the decree of the trial Court presented an appeal before the Judicial Commissioner of Chota Nagpur and in June 1925, there was a compromise between defendants 1 to 5 of the present suit and Hanuman Bux by which the former acknowledged the validity of the sale held at the instance of the encumbered estate and agreed to pay a certain annual rent to Hanuman Bux. The present plaintiff however was not a party to the compromise. On 14th January 1929, the present suit was brought by the present plaintiff in which he challenged the title of Hanuman Bux under the sale of 1913, repudiated the validity of the compromise and prayed for recovery of possession of village Chitramo.

The suit was contested by Hanuman Bux, defendant 1 to 5 and certain other defendants. For the purpose of this appeal, it is sufficient to state that the main pleas which were raised on behalf of the contesting defendants were that the sale in question was a rent sale and therefore passed the entire tenure to Hanuman Bux, and that the suit was barred by limitation and the principle of res judicata. All these pleas were negatived by the trial Court which decreed the suit not only against Hanuman Bux but also against defendants 1 to 5. The trial Court gave a decree for khas possession to the plaintiff on the ground that defendants 1 to 5, having attorned to Hanuman Bux and denied the plaintiff''s title and defaulted in paying rent to the plaintiff in 1983 and 1984 had forfeited their interest in the disputed village. The learned District Judge on appeal reversed the decision of the trial Court and upheld the pleas of the contesting defendants. The plaintiff has accordingly preferred this second appeal.

The main question which was debated in this Court was as to whether under the sale of 1913 Hanuman Bux had acquired a good title to village Chitramo. It was conceded that this title must be held to be good, if the sale was a rent sale; but it was contended on behalf of the appellant that it was not a rent sale, firstly, because'' the plaintiff''s father w&o was in possession of the village was note impleaded in the suit, and, in the second place, because the entire tenure had not been included in the application for execution. Now, there is No. controversy as to certain important facts bearing on this point. It is common ground that at the time when the rent suit was brought by the encumbered estate, the disputed village was in possession of the plaintiff''s ancestors and that Panreya''s name was recorded in the Khewat No. 3 which was finally published in 1906. That being so, this case must be governed by the decision of the Privy Council in AIR 1933 122 (Privy Council) .

It was held in that case that where all the necessary parties are not joined or represented in the proceedings relating to a sale in execution of a decree for rent, Section 211, Chota Nagpur Tenancy Act, does not apply, and the Bevenue Court has no jurisdiction to order a sale, and consequently Section 214 of the Act does not preclude the Civil Court from entertaining a suit to set it aside. In that case one of the tenants had died without issue and the name of his widow had been entered in the Record of Rights as a holder of his share of the lands. The landlord did not implead her in the rent suit on the ground that she had not taken any steps to have her name entered in place of that of her husband in his sherishta, as prescribed by Section 11, Chota Nagpur Tenancy Act, nor had she paid any rent to him in respect of the tenure. The Judicial Committee however pointed out that no such sanction as forfeiture of rights in the tenure as a result of failure to comply with the provisions of Section 11 is provided by the Act. ''Such failure'', they observed, ''only affects the transferees'' power to recover rent from his under-tenants as provided in Sub-section 4.'' The Courts below had not the advantage of reading this decision and so they have confined them selves to the question of the effect of the non-registration of the name of the plaintiff in the sherishta of the landlord. The decision of the Judicial Committee however shows that that question was not a very material one. It also appears upon the facts of this case that all the villages comprising the tenure were not included in the sale, but in view of what I have already said, it is unnecessary to pursue the matter further.

The learned District Judge is also clearly wrong in holding that the present suit is barred by the principle of res judicata. As has been already stated, the suit of 1922 ultimately ended in a compromise, and the plaintiff being no party td the compromise, was not bound by it, nor can the decree passed and appeal based as it was on the compromise, operate as res judicata against him in this action. The appellant must also succeed on the question of limitation. It is true that the plaintiff lost possession in the year 1913 when the disputed village being purchased by Hanuman Bux, he proceeded to take possession of it. But, it also appears that as a result of the decree passed in the suit of 1922 by the trial Court, defendants 1 to 5 recovered possession from Hanuman Bux about the year 1923. This decree specifically stated that possession was granted to defendants 1 to 5 through the present plaintiff''s father and so at least until the date of the compromise of 1925, the possession of defendants 1 to 5 must be regarded as tantamount to the possession of the plaintiff and this clearly constituted a break in the possession of Hanuman Bux. As I have already stated under the compromise, Hanuman Bux''s title was acknowledged by defendants 1 to 5 and therefore from that date it cannot be said that the plaintiff was in possession through defendants 1 to 5. Properly speaking, therefore, the limitation began to run from the date of the compromise and as the present suit was instituted in 1929, it was not barred by limitation.

Thus the main points upon which the suit has been dismissed by the learned District Judge fail. I have however yet to deal with two other points which were raised in the course of the argument. It was contended on behalf of defendants 1 to 5 that the suit of 1922 brought by the plaintiff''s father had abated so far as the plaintiff is concerned, because on the death of the former no substitution was made and the present plaintiff refused to continue this suit.

This point however has been answered by the learned Subordinate Judge who tried the suit. Order 22, Rule 2, provides that where on the death of one or two plaintiffs the right to sue does not survive to the surviving plaintiff or plaintiffs alone, the Court shall cause the legal representative of the deceased plaintiff to be made a party and proceed with the suit. In the present case the legal representative of the deceased plaintiff was added as defendant in the suit and, in my opinion, the requirement of law was thereby complied with.

A more serious point was raised by the learned advocate for defendant 10 who contended that the plaintiff could not maintain the present suit by reason of what is provided in Clause 3 of Order 23, Rule 1. This Rule relates to the effect of the withdrawal of a suit and Sub-rule (3) provides that where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2), he shall be precluded from instituting any fresh suit in respect of the same subject matter or part of the claim. The point to be considered is whether the plaintiff had withdrawn the suit or abandoned part of his claim. In this connexion, it has been pointed out by the learned advocate for the appellant that no portion of the claim or suit was in fact withdrawn and even after the death of the plaintiff''s father, the suit proceeded upon the plaint as it originally stood. The only thing which happened was that the heirs of the deceased plaintiff refused to join as plaintiffs. It must be remembered that the latter made no formal application for withdrawing the suit or abandoning any part of their claim but merely refused to join as plaintiffs and the result of their refusal was that they never became plaintiffs. Order 23, Rule 1 was clearly not applicable to this case, because the present plaintiff was never brought on the record as a plaintiff in the previous suit. It would have been applicable if after being brought on the record as a plaintiff he had withdrawn from the suit or abandoned part of his claim. In my opinion therefore the plaintiff''s suit must succeed as against Hanuman Bux (defendant 9).

The only point which remains to be dealt with is whether the plaintiff is entitled to a decree for khas possession by evicting defendants 1 to 5. Now, one of the difficulties which the plaintiff has to face in this connexion is that the ground on which he claims khas possession in this Court is not clearly set out in the plaint and in para. 25 of the plaint he bases his right to relief only on the ground of non-payment of the rent in Jeth 1983 and 1984. The matter does not rest there. The repudiation of tenancy which is the only ground of forfeiture urged in this Court is said to have occurred in the year 1925 when defendants 2 to 5 were minors and when Sundar Munda, the only major defendant, entered into compromise with Hanuman Bux on his own behalf and as guardian of the other defendants. This compromise was clearly to the prejudice of the minor defendants 2 to 5, not only because it ignored the decree of the trial Court but also because it exposed the minors to the risk of a serious litigation which followed soon after the compromise. Defendant 1 himself in the written statement does not repudiate the original tenancy and the other defendants who were minors at the time of the compromise have stated in their written statement as follows:

These defendants had made no collusion or compromise with defendant 9; nor have they agreed to pay rent to him in respect of the property in suit; that if defendant 1 who was then the head member of these defendants'' family and was in charge of the suit against defendant 9 and who used to pay rent to the superior landlord on behalf of the family, had attorned to defendant 9 in the appeal terminating in the compromise as alleged by the plaintiff, these defendants were not aware of it and they submit that the judgment in appeal has not in any way affected their title to the tenure in suit.

The plaintiff also did not serve any notice of eviction on any of the defendants before he brought this suit and, so in my opinion, in the circumstances of the case, no decree for ejectment can be passed against them. I would therefore allow this appeal in part and while decreeing the plaintiff''s suit against the heirs of defendant 9 who have been substituted after his death, dismiss it as against defendants 1 to 5. The parties will bear their own costs throughout.

Yarma J.

I agree.