Onkar and ors. vs Birbal and ors.

B.S. Yadav, J.

The facts leading to this appeal are that Jai Narain, Birbal, Umrao, Bhagwana, Nathi and Jhabar had filed a suit against Onkar, Ramdev and Gopal (defendant Nos. 1 to 3 respectively and now appellants). The plaintiffs had prayed of a decree for declaration that they and the proforma defendant Nos. 4 to 7 were in possession of the suit land as cosharers of shamilat Thok Roop Chand. They also prayed for permanent injunction restraining defendant Nos. 1 to 3 from interfering with their possession as well as that of proforma defendant Nos. 4 to 7 over the suit land. According to the allegations in the plaint, the various plaintiffs were separately in possession of separate parcels of the suit land detailed in plaint para No. 1 as cosharers. With some of the plaintiffs, the proforma defendants were also said to be in possession. The contesting defendants is collusion with the patwari got themselves recorded in the revenue papers as cultivators of those parcels of land though they had never been in possession of them. Taking advantage of those wrong entries, the contesting defendants were trying to interfere with the possession of the plaintiffs and the proforma defendants over the suit land.

The contesting defendants Onkar, Ramdev and Gopal filed a joint written statement contesting the suit. According to them the plaintiffs were never in possession of any part of the suit land and on the other hand, they (i.e. contesting defendants) have been in its possession since long as cosharers and even now they were in possession. They were cosharers in shamilat Thok Roop Chand. The land had been attached in proceedings under Section 145 of the Code of Criminal Procedure and, therefore, the suit was not maintainable in the present form. It was also pleaded that the different plaintiffs have prayed relief in respect of separate parcels of land and then ought to have filed separate suits. It was also alleged that there were other cosharers in Thok Roop Chand and they were necessary parties.

Upon the allegations of the parties the learned trial Court framed the following issues

(1) Whether the plaintiffs are cosharers in the possession of the land in suit as alleged in para No. 1 of the plaint ?

(2) Whether that is not suit is not maintainable in the present form ?

(3) Whether the suit is bad for nonjoinder of necessary party as alleged ?

(4) Relief.

Under issue No. 1 it was held that the plaintiffs were not in actual physical possession of the suit land on the date of the suit or prior to that. Under issue No. 2 it was held that as the different plaintiffs were claiming separate possession of different parts of the suit land, therefore, the suit was bad for multifariousness. Under issue No. 3 it was held that other cosharers were not necessary parties to the suit as no relief had been claimed against them. As a result of the findings under issue Nos. 1 and 2, the plaintiffs'' suit was dismissed.

Feeling aggrieved, the plaintiffs filed an appeal which was heard by learned Senior Subordinate Judge (with Enhanced Appellate Powers), Narnaul. He upset the findings of the learned trial Court under issue Nos. 1 and 2. Consequently, he accepted the appeal, set aside the judgment and decree of the learned trial Court and decreed the suit of the plaintiffs. Contesting defendants have filed this second appeal.

The learned counsel for the appellants vehemently argued that the suit was bad for multifariousness. He pointed out that in plaint paragraph No. 1 it is alleged that plaintiff No. 1 is said to be in possession of land measuring 9 Marlas comprised in rectangle Nos. 29 Killa No. 19/6 while plaintiff No. 1 and defendant No. 4 are said to be in possession of land measuring 6 Kanals 12 Marlas comprised in rectangle No. 29 Killa Nos. 12/1 and 13/1 while plaintiff Nos. 2 to 6 are said to be in possession of land measuring 17 Marlas in equal shares comprised in rectangle No. 29, Killa No. 19/4. It is further alleged that plaintiff Nos. 2 to 6 are also in possession of land measuring 5 Kanals 4 Marlas comprised in rectangle No. 29 Killa No. 18/2 and 19/7 in which plaintiff No. 2 has half share and plaintiff Nos. 3 to 5 and defendant Nos. 5 to 7 have the other half while plaintiff Nos. 3 to 5 and defendant Nos. 5 to 7 are said to be in possession of land measuring 13 Marlas comprised in rectangle No. 29 Killa No. 19/3. He argued that from the above allegations it is clear that the different sets of plaintiffs are in possession of different parcels of land and one set of the plaintiffs has no concern with the parcel of the land said to be in possession of the other set of plaintiffs and defendants and the only common allegation is that defendant Nos. 1 to 3 have no connection with those parcels of land and they threaten to take illegal possession. Therefore the question that arises is whether these plaintiffs could join in one suit.

Order 1 Rule 1, Civil Procedure Code deals with the joining of the plaintiffs in one suit. It reads as follows:

"All persons may be joined in one suit as plaintiffs where

(a) 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 in such persons, whether jointly, severally or in the alternative; and

(b) If such persons brought separate suits, any common question of law or fact would arise."

I may also quote here Order 2 Rule 3, Civil Procedure Code as it is also relevant for the discussions.

"3. (1) Save as otherwise 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.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subjectmatters at the date of instituting the suit."

Learned counsel for the appellants also places reliance upon Kali Charan v. Ganesh Prashad and another, A.I.R. 1971 Allahabad 501. In that case there were two tenants in the separate portions of the house on separate engagements. The plaintiff landlord after terminating the respective tenancies of his two tenants in the separate portions of the house, filed one single suit for their eviction pleading a separate cause of action against each bases on their separate engagement of tenancy. An objection was taken on behalf of the defendants that the suit was incompetent as the provisions of Order 1 Rule 3, Civil Procedure Code, did not permit a single suit against the two defendants who could not be joined in one single suit as defendants, as the right which the plaintiff asserted against each of them was based on different transactions. The trial Court and the appellate Court overruled that objection of the defendants. The defendants filed appeal in the High Court and it was remarked :

"It is clear to my mind that to the suit giving rise to these appeals the provisions of Rule 3 of Order 1, Civil P.C. were not applicable. The suit against the two defendants was not based on the same act or transaction or series of acts or transactions. The tenancy of each one of them was separate in distinct portions of the house. The transaction between the plaintiff with each of the defendants was separate and distinct. Termination of the tenancy of one and his refusal to vacate the premises gave rise to a separate right to the plaintiff as against that tenant. Merely the other accommodation let out to the second defendant being in the same house and the second defendant also having refused to vacate after termination of his tenancy, would not make his refusal the same act or transaction or series of the same act or transaction as the act or transaction or the first defendant. The suit as brought, in my opinion, was incompetent.

The next question urged was that Rule 9 of Order 1, Civil P.C., would apply and the plaintiffs'' suit cannot be thrown out. I see some difficulty in applying Rule 9 to a case where under Rule 3 of Order 1 the suit is incompetent. To my mind impleading two defendants to a suit against whom there are independent causes of action is neither a case of misjoinder nor nonjoinder of parties. The suit as brought was incompetent and deserved to be thrown out."

The appeal of the defendants was accordingly allowed.

In Chandulaal Suklal Shet and others v. Dagdu Mahadu Chaudhuri and others, A.I.R. 1925 Bombay 342 five persons had entered into contracts with the same defendant, each of whom had contracted to supply a certain number of maunds of cotton to the defendant. All the five persons filed a single suit to recover from the defendant the price thereof. It was held that it was not possible for the plaintiffs to join in one suit five different causes of action of five different contracts made by five different plaintiffs.

In Aiyavu Muppan v. Vellaya Nadan and others I.L.R. 34 Madras Series, 55, it was remarked :

"It is found by the Subordinate Judge that the first plaintiff and Plaintiff Nos. 2 to 4 are divided in interest, and have been in possession of separate portions of the disputed land. The plaintiffs allege title under a sale in 1878. This was negatived by the District Munsif. But the Subordinate Judge without finally deciding that question had found a title by adverse possession for more than 12 years in their favour. It is argued for the appellant that suit is bad for misjoinder of causes of action. The first plaintiff and plaintiff Nos 2 to 4 claim different lands and their title as found is by adverse possession of their respective portions. The injury to their rights is by the defendants'' trespass. Although the trespass might have been at the same time the right being separate, the cause of action must be held to be separate. The authorities cited by Mr. Rangachariar are decisive of the question. The decision of the House of Lords in Sumurthwaite v. Hanay (1894) A.C. 494 referred to in Subramania Aiyar v. KingEmperor, (1902) I.L.R. 25 Mad. 61 and P. and O Co. v. Tsunc Kijima (1895) A.C. 661 are clear authorities in support of the appellant''s contention. Each person being separate in the eye of the law, any act of the defendant affecting the separate right of each gives to each a separate cause of action."

In Sant Singh and others. v. Des Ram and others, A.I.R. 1974 Punjab and Haryana 276, the plaintiffs filed a suit against the defendants for the grant of permanent injunction restraining the latter from making any construction on four pieces of land forming part of certain Khasra numbers on the allegations that they were tenants in possession of the said Khasra numbers which they had obtained on allotment from the Government and that the defendants had started collecting material for construction of the building on the said four pieces of land without any right or interest therein. With he plaint was attached a plan. The said four pieces were shown in different colours. Each one of them formed a small fraction of the Khasra number in which it was situated. A footnote appended to the plan stated that the disputed land where houses were under construction, was shown in yellow. The defendants inter alia took a preliminary objection that the suit was bad for multifariousness and, therefore, deserved dismissal. The trial Court upheld that objection. The plaintiffs came to this Court in revision petition. It was remarked:

"I have heard learned counsel for the petitioners and am of the opinion that no fault can be found with the impugned order. The learned Subordinate Judge was quite right in observing that one of the conditions which must be fulfilled before the provisions of Rule 3 could be applied to a case was that a right to relief arising out of the same act or transaction or series or acts or transactions must be alleged to exist. In the plaint all that is stated in this connection is contained in paragraph 3 thereof which states:

"3. That the defendants have started collecting material for constructing certain portion in the suit land at the spots shown on the map attached."

As already pointed out, four separate pieces of land are shown in yellow in the plan attached to the plaint. However, neither the plaint nor the plan states the names of any particular defendant or defendants as having trespassed upon each specific piece. This means that no allegation has been made by the plaintiffs that any right to relief against the respondents has arisen out of the same act or transaction or series of acts or transactions. On the other hand, the respondents, according to him, are trespassers. And if that be so, each one of them would be answerable for his own act of trespass which would have nothing to do with the trepass which any of his corepondents might be shown to have indulged in. On the allegations made by the plaintiffs, therefore, what is deducible is that the right to relief alleged to exist against the respondents arises not out of the same act or transaction or series of acts or transactions from different acts and transactions. The suit is, therefore, multifarious and one not permitted as Rule 3".

The revision petition was accordingly dismissed.

Of course, the above ruling supports the contention of the learned counsel for the appellants that the suit is bad for multifariousness as all the plaintiffs are not jointly interested in each parcel of the land and each set of the plaintiffs is only interested in the land said to be in their possession. However, I think the suit is not liable to be dismissed on that ground.

The learned counsel for the respondents has argued that though the defendants had taken the objection that the suit was bad for multitfariousness but they never pressed the trial Court to decide that objection at an early stage, and therefore, the suit should not be thrown out at this stage on the ground that it was bad for multifariousness. In support of his contention he has cited Mahant Ramdhan Puri and others v. Chaudhury Lachmi Narain and others, A.I.R. 1937 Privy Council 42, in which a suit had been filed against no fewer than 78 defendants and a general outline of the contents of the complaint was that the father and karta of a Mitakshara family had embarked upon a career of vice and extravagence, in the course of which he had parted with a number of the family properties. The purpose of the plaint was to recover various properties from the persons to whom they had thus been alienated, upon the footing that the alienations were not made for family necessity. Their Lordships remarked:

"The written statement of the present appellants (as is common in India) contained a plea that the suit was bad for misjoinder or multifariousness, 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 Lordship may repeat what was said byLord Justice Pickford in Thomas v. Moore, (1918) I.K.B. 555 at p. 565:

"Whatever the law may have been at the time when Smumrthwaite v. Hannay, (1894) A.C. 494 was decided, joinder of parties, that 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 in the present case no effect can be given to this objection of misjoinder, the merits of the case having been satisfactorily disposed of in spite of the complication of the proceedings."

On behalf of the respondents reliance was also placed on Madan Lal L Raja Ram and others v. Munshi Datu and others, A.I.R. 1956 Pepsu 80. In that case some defendants committed three successive trespasses on the lands belonging to three separate plaintiffs and 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 was held that though similar question of law and fact arose therein but that was far from saying that those were common questions. It was further remarked that all the plaintiffs were not jointly interested in each three sets of separate trespass and each one of the three plaintiffs was only interested in the trespass upon his part of the lands and not upon trespass upon the lands of other two plaintiffs. However, it was thought desirable not to dismiss the suit on that ground. After quoting Ram Dhan Puri''s case (supra), Mehar Singh, Judge (as he then was) remarked:

"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 the 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 proceeded 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 because 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 inasmuch 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 these separate suits against them at this stage."

I respectfully follow the rulings cited by the learned counsel for the respondents.

In Kali Charan''s case (supra) which was decided after 1937, Ram Dhan Puri''s case (supra) was not considered. Section 99, Civil Procedure Code, is clear upon this point. The relevant portion of it reads as follows:

"No decree shall be reversed or substaintally varied, nor shall any case be remanded, in appeal on account of any misjoinder or nonjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court".

In the present case the defendants did not press the trial Court to decide their plea of multifariousness before the trial commenced. The trial Court recorded all the evidence and thereafter decided the question of multifariousness alongwith the other pleas. At no stage the defendants raised the plea that they had been prejudiced by the misjoinder of the plaintiffs or the causes of action. Therefore, I hold that at this stage the suit cannot be dismissed merely on the plea of multifariousness.

Now I come to the merits of the case. The learned lower appellate Court after consideration of the evidence has rendered a finding of fact to the effect that the plaintiffs and the proforma defendant Nos. 4 to 7 were in possession of the different parcels of land as alleged in the plaint. That finding of fact is not to be lightly interfered with in second appeal. In this respect reference can be made to Sadhu v. Mst. Kishni, A.I.R. 1980 Punjab and Haryana 85, wherein it was remarked:

"The scope of second appeal as envisaged by Section 100 of the Civil Procedure Code and Section 41 of the Punjab Courts Act has been a matter of judicial scrutiny a number of times by this Court as well as by the final Court, that is, the Supreme Court of India. The learned counsel for the appellant has actually made a reference in this regard to Deity Pattabhiramaswamy v. S. Hanymayya, A.I.R. 1959 S.C. 57, Madamanchi Ramappa v. Muthaluru Boijappa, A.I.R. 1963 S.C. 1633; Bithal Das Khanna v. Hafiz Abdul Hai, 1969 S.C. Notes 481, and Afsar Shaikh v. Soleman Bibi, A.I.R. 1976 S.C. 163. These pronouncements, in a nutshell, lay down that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. Their Lordships have further observed that the only ground on which such an appeal can be said to be competent is where there is an error in law or procedure and not merely on an error on a question of fact."

The learned counsel for the appellants argued that the lower appellate Court has ignored the later entries in the Jambandi which should have been preferred and, therefore, the finding of fact is vitiated. The Court has given reasons for preferring the earlier entries in the record of rights and I do not think that those reasons are in any way incorrect. I may also quote here Durga (deceased) and others v. Milkhi Ram and others, 1969 P.L.J. 105, wherein their Lordships of the Supreme Court held:

"Relying on Shri Raja Durga Singh of Solan v. Tholu, (1963)2 S.C.R. 693,700 it was urged before the High Court as before us, that the lower appellate Court had wrongly relied on the earlier revenue entries placing the burden on the defendants, whose names appeared in the later entries, to rebut the presumption. This Court observed in that case as follows:

"It was urged before us that there are prior entries which are in conflict with those on which the learned District Judge has relied. It is sufficient to say that where there is such a conflict, it is the later entry which must prevail. Indeed from the language of Section 44 itself it follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry."

Grover, J. observed as follows:

"It is clear from the pedigreetable set out in its judgment that Mathar Mal had three sons Jiwan, Amin Chand and Relu. Durga and Sidhu are the descendants of Amin Chand and Relu. Now, in the entries prior to 192930 each one of the descendants of the three sons of Mathar Mal had been shown to have 1/3rd share and without any mutation the entries were changed in 192930. Admittedly there is no order of the revenue authorities showing how the change was made. Thus although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the entries in 192930 was made unauthorisedly or mistakenly, there being no material to justify the change of entries."

Grover, J. distinguished Shri Raja Durga Singh of Solan v. Tholu, (1963)(2) S.C.R. 693, 700 thus:

"There is nothing to indicate that in the case decided by their Lordships such was the position. Moreover, the decision in that case proceeded largely on the finding of fact arrived at by the District Judge on a consideration of the evidence being not open to interference in second appeal. The finding in the present case of the lower appellate Court is also based on evidence from which it has been inferred that the later entries are not the correct ones."

We agree with the observations of Grover, J."

In the instant case also, the lower appellate Court had given reason for preferring the earlier revenue entries. Hence the finding given by the learned lower appellate Court remains a finding of fact.

On merits also, the defendantappellants have no case. Admittedly, the parties are cosharers in shamilat Thok Roop Chand. The plaintiffs'' case is that they along with defendant Nos. 4 to 7 have been in possession of the suit land comprising in Killas Nos 12/1, 13/1, 18/2, 19/3, 19/4, 19/6 and 19/7 of Rectangle No. 29 as cosharers in the manner alleged in para No. 1 of plaint. It is further their case that defendant Nos. 1 to 3 in collusion with the Patwari got themselves wrongly recorded as tenants under them while in fact defendant Nos. 1 to 3 have never been in possession of the suit land.

To support their contention the plaintiffs produced Exhibit P.1 Jamabandi for the year 196667. In this the plaintiffs and defendant Nos. 4 to 7 are recorded in possession of the suit land. This Jamabandi was prepared after the consolidation proceedings. Exhibit P2 is the Khasra Girdawari from Kharif 1967 to Rabi 1969. The plaintiffs and defendant Nos. 2 to 4 are recorded in possession as cosharers of the suit land in Kharif 1967 and Rabi 1968. In Kharif 1968, there is an entry to the effect that defendant Nos. 1 to 3 were cultivating the land as tenant Ghair Marusi under the plaintiffs and defendant Nos. 4 to 7 without payment of any lagan. There is a mention of one report No. 52 under which the change is said to have been effected. It is not clear to which report that number relates. Most probably it might be relating to Patwari''s Roznamcha. Surprisingly enough the contesting defendants'' have not produced the copy of that report. Lower appellate Court has held that the said entry about defendant Nos. 1 to 3''s tenancy is fictitious as it is not understood why the plaintiffs and defendant Nos. 4 to 7 would induct defendant Nos. 1 to 3 as tenants under them without payment of any rent. It is not the case of the defendants that they ever cultivated the suit land as tenants under the plaintiffs and defendant Nos. 4 to 7.

Exhibit P.5 is the Jamabandi for the years 196869. In this defendants Nos. 1 to 3 are shown as selfcultivating the land as cosharers. Even the entry about their tenancy which was recorded in the Khasra Girdawari has been omitted. Exhibit D.2 is the copy of Khasra Girdawari entries from Kharif 1969 to Rabi 1971 in which the entries as in the last jamabandi have been repeated. The argument of the learned counsel for the appellants was that the later entries in the revenue documents should be preferred. In support of his contention he has relied upon Dalip Singh and others v. Puran Dass and another, 1977 P.L.J. 178, wherein a learned Single Judge of this Court remarked:

Presumption of truth attaches to the entries in the later Jamabandis and nothing has been brought on record to show that the said entries had been made without authority or were incorrect."

Reliance was also placed upon Banwari v. Degh Ram and others, 1932 P.L.J. 397, wherein it was remarked :

"Mr. M.L. Sarin, learned counsel for the appellant has referred to a decision of the Supreme Court in Durga (deceased) and others v. Milkhi Ram and others, 1960 P.L.J. 105, which was followed by a learned Singh Judge of this Court in Khushi Ram and ors. v. Hans Raj and ors., 1980 P.L.J. 337. On the basis of observations made in these authorities, the learned counsel seeks to contend that even though there is a change in the Revenue entries, preference should be given to the earlier entries in favour of the appellant. It was held in Durga''s case (supra) that if a change is made in the earlier Revenue entries without any mutation or an order of the Revenue Authority, the presumption attached to the correctness of the later entries would stand rebutted and the earlier entries should be accepted as correct. This view was followed in Khushi Ram''s case (supra). There is certainly no quarrel with the proposition of law as laid down in the above authorities, but tray are distinguishable on facts. There is no material on the record in the present case to indicate that the later entries had been effected without proper mutation or an order of the Revenue Authorities. Indeed, it was for the appellant to prove these facts and only then the presumption attached to the later entries could have been rebutted."

The above rulings are not applicable to the instant case because the entries in the revenue documents about tenancy are not owned even by the contesting defendants. As noticed earlier, there is only mention of a certain report in the Khasra Girdawari entries recorded during Kharif 1968. Copy of that report has not been produced by the contesting defendants to show that the change was effected in an authorized manner. As held in Durga''s case (supra) presumption of correctness attached to the record of rights under section 44 of the Punjab Land Revenue Act is a rebuttable one. In the instant case it stands rebutted by the fact that the change in the earlier entries was made unauthorisedly, there being no material to justify the change of entries.

The learned counsel for the appellants further argued that the suit for mere declaration was not maintainable. There is no dispute between the parties that on the date the suit was filed the land was under attachment in proceedings under section 145, Criminaql Procedure Code. Of course, those proceedings were dropped during the pendency of the suit but there is no evidence on the file to show that the criminal Court had delivered the possession of the property to the defendants. Hence it is held that the suit is maintainable in the present form.

For the foregoing reasons, I do not find any force in the present appeal and dismiss the same with costs.