Poonit Singh vs Kamal Singh and Others

Ross, J.—The relevant facts are these. One Jawad Hossain had a takhta of 3 annas 15 kauris and odd in Mauza Ismailpur Baharthu of which 2 annas 10 dams and odd was milkiat and 10 dams and odd thukarrari. His wife Bibi Barkatunissa had also a takhta of 4 annas 7 darns and odd milkiat interest. This share eventually came to Jawab Hossain so that he had in all 7 annas 8 dams and odd. Besides this, he had 10 dams and odd share which was mukarrari to one Bal Gobind Singh. In 1907, he mortgaged 7 annas 11 dams share in the two takhtas without specification whether milkiat or mukarrari interest was conveyed. This property was eventually purchased by the plaintiffs in execution of a decree for sale in a suit on a mortgage and they took delivery of possession. In the meantime, Jawad Hossain had settled Plot No. 2,388 within these takhtas with the defendant who built a house on it. The present suit is for possession of this land and for the removal of building.

Both the Courts below have decreed the suit.

Two points are urged in second appeal. (1) that the plaintiffs are part proprietors only and Jawad Hossain is a necessary party and that no decree can be passed in his absence, and (2) that there is an estoppel against the plaintiffs by reason of the fact that in the Land Registration Department of the Collectorate they have been registered in respect of the 10 dams share which is in mukarrari to Bal Gobind Singh and consequently they cannot now deny that Jawad Hossain has still a share of 10 dams in two takhtas above-mentioned which he was free to deal with. There is nothing in the second contention as an independent point, because the suit on the mortgage was brought on the 27th February 1915, whereas the settlement with the defendant was made not before April 1915. It is, therefore, subject to the result of the mortgage suit. Moreover, the house building began in November 1915 and in that very month there were criminal proceedings u/s 144 of the Criminal Procedure Code. Consequently, there was no acquiescence on the plaintiff''s part.

The first contention was strongly pressed. It was suggested that the decision of the question at issue involves the construction, of the mortgage-bond in order to ascertain whether the mortgagor included in the mortgage the 10 dams milkiat share in mukarrari to Bal Gobind Singh or the 10 dams mukarrari share of Jawad Hossain and that this could Only be determined in the presence of Jawad Hossain. It was pleaded by the defence that the plaintiffs were only part proprietors and could not maintain the suit. Now, this argument, in my opinion, misconceives the nature of the suit in ejectment. "The persons to be made defendants in an action of ejectment, i.e., to be named in the writ, are all the tenants in possession of the land, etc., sought to be recovered. The persons who have a right to defend in an action of ejectment are any persons named in the writ, and any person who is in possession by himself or his tenant." Dicey on Parties to an Action, pages 494 and 495: "Strictly all persons who are actually in physical possession of the property should be made defendants. It is neither necessary nor proper to join any person who is merely in receipt of the rents and profits of the land." Bullen and Leak''s Precedents of Pleadings, 7th Edition, page 877. The suit is, therefore, properly constituted without making Jawad Hossain a party. It is true that he might have come in to defend the suit; but he did not do so, and the defence never required that he should be made a party. The defendant is admittedly the tenant in possession. He is, therefore, the necessary, and the only necessary party to the suit: Kashi v. Radashiv Sakharam Shet [1897] 21 Bom. 229 and Mt. Bhagwati Kuer v. Jagdam Sahay [1921] 2 Pat. L.T. 471. It follows, therefore, that there is no defect of parties in this suit. The plaintiffs have proved their title to the property as against the defendant. That has been found as a fact. The defendant is the person in possession. All necessary parties are, therefore, before the Court.

The appeal is dismissed with costs.