Saroop Singh and others vs Hazara Singh and others

D.S. Tewatia, J.—This judgment will dispose of Regular Second Appeals Nos. 1067 and 1068 of 1977 in which identical question of law and facts arise except that the measure of the land under mortgage is different and the set of mortgages is different and the set of mortgagees are different.

The facts, which have been taken from R.S.A. No. 1067 of 1977, are that Hazara Singh and 6 other Plaintiffs sought a declaration against 29 Defendants, each representing an independent khewat in the village to the effect that the Plaintiffs have become owners of the land, in dispute. The case set up by them was that the land in dispute was owned by Kahna and Chakor sons of Sukha and Mana sons of Lota, residents of Palsaura, as per record pertaining to the year 1852; that these owners had mortgaged the land in dispute with Sh. Dalel Singh and Chanda Singh sons of Lalu, predecessors-in-interest, of the Plaintiffs; that more than 100 years have passed and the land had not been redeemed; that the period of limitation, both under the old Act as also the new Act, having expired, the Plaintiffs have become full owners of the land in dispute and be declared as such. The suit was against the proprietory body and the persons named in the suit were representing all the khewats in the village

During the proceedings some persons who were mentioned in the written statement as being necessary parties were also allowed to be impleaded as Defendants.

The trial Court struck following issues: -

(1) Whether the suit land is mortgaged with the Plaintiffs and was not redeemed within the prescribed period ?

(2) Whether the suit is bad for non-joinder of necessary parties ?

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

(4) Whether the suit is within time ?

The findings of the trial Court were sustained by the Appellate Court.

A queer question was raised under issue No. 2 before the lower appellate Court to the effect that the land in dispute being admittedly shamlat deh which vests in the Gram Panchayat, and it having not been made party, so the suit was bad for non-joinder of necessary parties and this is the plea which is high-lighted on behalf of the Defendant-Appellants in the appeal in this Court.

It was no-body''s case in the trial Court that the land was shamlat deh. The lower appellate Court did not appreciate the True position, it appears, and that is why it noticed the argument and went in detail in dealing with the said argument. It appears that in the manner the Defendants had been impleaded, it was taken that land was shamlat deh. The Defendants are impleaded by saying shamlat deh hasad rasad khewat through the 29 Defendants.

It was the Plaintiffs'' case that the rightful owners died issueless and the land in dispute was mutated in favour of the whole village proprietory body and the Defendants represented each khewat of the shamlat deh. The expression shamlat deh is used to mean proprietary body of the village comprising of proprietors who were entitled to have a share in the shamlat deh in proportion to their proprietary holding. The land was not shamlat deh and so the question of impleading the Gram Panchayat did not arise at all.

It was then urged on behalf of the Appellants that all the proprietors were not impleaded in the suit. It may be observed that such persons as were pointed out by the Defendants-Appellants to have been left out, were impleaded as Defendants by amending the plaint. Their further assertion in the written statement that there were some other persons also who had not been impleaded, was found to be vague. However, reference was made to the cross-examination of PW-2 Surjan Singh who is stated to have admitted some names as being the persons who were also proprietors in the village. This would not advance the case of the Defendants at all.

In any case, in view of Order 1, Rule 9 of the Code of Civil Procedure, which is in the following terms, the suit would not fail:-

No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

At best, it could be said that the declaration sought by the Plaintiffs in the suit would not bind any person who is left out and not impleaded as a Defendant.

For the reasons afore-mentioned, there is no merit in these appeals and the same are dismissed. No costs.