Nandan Singh and Another vs Siaram Singh

Macpherson, J.—This Rule has been issued to consider the question whether the Sub-Divisional Magistrate of Muzaffarpur acted without jurisdiction in a proceeding u/s 145 of the Order. P.C. in which he decided against the second party of which the petitioners Nandan Singh and Hirdey. Singh were members.

The facts are as follows:

In a Collectorate partition the division was under order of the Board of Revenue made upon the basis of the entries in the Record of Rights, (which show as bakasht malik certain lands claimed by various, co-sharers as their raiyati lands)" without prejudice to the question whether the proprietors concerned have a raiyati status or not and without prejudice when possession is given upon completion of the partition to the rights of any parties in cultivating occupation." Delivery of possession of takhtas was given in 1922 and each set of co-sharer landlords took over the lands within their own new takhfa which were. shown as bakasht malik in the Record of Rights. The joint family of the present petitioners consisting of Nandan Singh and Hirdey Singh adults and Ramlochan Singh minor took possession of bakasht lands previously held by the opposite party and the opposite (first) party took possession of bakasht lands previously held by the petitioners. Thereafter the petitioners sold their takhta and having no land left endeavoured to retake possession of the lands formerly in their cultivation which had fallen in the takhta of the opposite part and had been taken possession of by them.

That the Magistrate rightly held that the opposite party was in possession of the lands in dispute is incontrovertible. It is urged, however, that his proceedings were without jurisdiction in the following circumstances. He made party to the. order which he drew up under Sub-section (1) not only the petitioners, bat their minor brother Ramlochan. The process server, however, returned the notice issued on Ramlochan under Sub-section. (3) with the report Ramlochan Singh is a minor. Therefore, I have returned the notice issued in his name in which he is not described as a minor. No further steps were taken to serve notice upon the minor and in the written statement which the petitioners filed they took objection that the proceeding so far as it concerned Ramlochan, was illegal because he was not represented by a guardian and that as a result the whole proceeding was without jurisdiction. The Magistrate took no action upon this objection and eventually made an order under Sub-section (6) against all three brothers.

Now this application is made by the two major brothers only and Ramlochan Singh is no party to it. It may well be that the proceeding having been taken without notice to him and in his absence is bad in law, so far as he is concerned, for the reason that the Alagistrate had no jurisdiction to pass the order so far as it affected him. But that is not to say that for that reason the whole proceeding is without jurisdiction. The decision of the Full Bench in Krishna Kamini v. Abdul Jubbar 30 C 155 : 6 C.W.N. 737 (F.B.). is authority for the view that the question of misjoinder and non-joinder of parties does not ordinarily affect jurisdiction. It is a question of procedure by which jurisdiction is not affected, whether a party has been wrongly included or excluded. The invalidity of the proceeding against one member of the petitioner''s party does not necessarily invalidate the whole proceeding. The minor, though interested in the dispute and a proper party, was not in the circumstances an essential party, especially as he would not be a likely person to cause a breach of the peace. Thus the proceeding is not without jurisdiction in respect at least of the persons who were actually parties, and were not prejudiced, and it is palpable that petitioners were not prejudiced.

The Rule is, therefore, discharged.