Teja Singh vs S. Shamsher Singh and Others

P.C. Pandit, J.—Sardar Bahadur Bhagwant Singh was a jagirdar of Bhareli Estate in the district of Ambala. He had three sons, Teja Singh, Shamsher Singh and Rup Singh. In 1946 he divided his estate amongst his sons and the lands comprised in villages Bir Babupur and Bir Ferozeri were given to Shamsher Singh and the mutations in respect thereof were attested on 22nd August, 1946. Teja Singh thereupon brought the present suit for a declaration that these mutations were null and void and ineffective against his rights of succession. It was alleged by him that the rule of succession in their family was that of primogeniture and the eldest son was alone entitled to succeed and the junior members could only get maintenance. It was also stated that the land in suit was jagir land and was inalienable. It was further alleged that the distribution of land made by the father amongst his three sons was unequal. It was claimed that the family of the plaintiff was one of the 34 families of the Cis-Sutlej States and the ancestors of the parties were Cis-Sutlej Chiefs. The land in dispute was alleged to be ancestral and the impugned mutations were against the conditions of the jagir.

The suit was, in the first instance, brought on 20th August, 1952 against Shamsher Singh Rup Singh and Sardar Bahadur Bhagwant Singh, defendants 1 to 3. In para 7 of the plaint, it was mentioned that village Bahlan Khanpur had been gifted to Rup Singh, defendant No. 2, and a separate suit would be filed in respect thereof. In para 8, it was stated that defendant No. 2 was interested in the estate and in maintaining the mutations and, therefore, he had been impleaded as a defendant.

The suit was resisted by defendants 1 and 3, who controverted the allegations made by the plaintiff. It was denied that the rule of primogeniture was applicable in their family and that the suit land was impartible and inalienable. The ancestral nature of the property was also denied. It was stated by defendant No. 1 in para 9 of his written statement that defendants 2 and 3 were not necessary parties to the suit and their names should be struck off from the list of defendants. In any case, it was asserted that defendant No. 2 was not interested in the litigation and he had been impleaded as a defendant simply to burden him with costs. His name should, therefore, be struck off and costs may be got paid to him.

An application was filed by Rup Singh on 13th December, 1952 in which he stated that he had been made a party to the suit without any reason whatsoever and he prayed that his name be removed from the list of defendants.

In the replication fifed by Teja Singh on 18th January, 1953, he stated that the present suit was not with respect to the land in village Behlan Khanpur regarding which a separate suit bad been filed. In para 9, it was mentioned that defendants 2 and 3 were interested in maintaining the mutations in dispute and they were, therefore, necessary parties to the suit. On 19th January, 1953, however, the counsel for the plaintiff, made a statement giving up Rup Singh, defendant, and on the same day the Subordinate Judge, passed an order striking off his name from the list of defendants. It was further directed that the amended plaint should be filed on 31st January, 1953, which was done by the plaintiff.. In August 1953 an application for amendment of the plaint was filed by the plaintiff, by which he sought to take an alternative plea that the parties were governed by Hindu Law and as such no unequal distribution of the property could be made by their father. The transfers in question were null and void on the ground that the lands, which Sardar Bahadur Bhagwant Singh had transferred to his sons, were not only unequal in area but also in quality. This amendment was opposed by defendant No. 1 on the ground that the suit for challenging the alienation under custom and Hindu Law on the ground of partition being unequal had become barred on the date of the amendment and the proposed amendment would, therefore, deprive him of a very valuable right that had accrued to him by lapse of time. On 9th October, 1953, however, the-trial Judge allowed this amendment on payment of R. 100/- as costs. It was stated by the learned Judge that by the proposed amendment, the plaintiff did not seek any further relief but he only wanted to attack the alienations on an additional ground. In the written statement dated 3rd November, 1953 filed by Shamsher Singh to the new amended plaint, he mentioned in para (8)(a) that Rup Singh was a necessary party to the suit in order that the question of succession might be solved. On this a. preliminary issue, namely, "Whether Rup Singh was a necessary party?" was framed. On 30th November, 1953 the trial Judge held that in view of the allegations made in the amended plaint, Rup Singh was a necessary party and he directed that he be impleaded on payment of Rs. 100/- as costs. The amended plaint was ordered to be filed on 18th December, 1953. Since the counsel for the plaintiff wanted some more time to file the amended plaint, it was ordered that the same be filed on 29th December, 1953. It was filed on this date and in para 10(a) thereof, it was mentioned that Rup Singh was being impleaded in compliance with the order of the Court, though the plaintiff was not seeking any relief against him.

Defendant No. 1 in the written statement dated 18th January, 1954 filed in reply to the amended plaint stated that the suit of the plaintiff was not within time. Rup Singh in his written statement submitted that he had been made a party to the suit unnecessarily. The plaintiff had no right to file a suit against him and he was an unnecessary party to the same.

The plaintiff in his replication dated 21st January, 1954 again reiterated that he did not seek any relief against Rup Singh, but as a result of the plea taken by the other defendants that he was a necessary party to the suit, he was impleaded as such under the orders of the Court.

On the pleadings of the parties, a number of issues were framed but we are at present concerned only with issue No. 11, which runs thus-

Is the suit within time?

The trial Judge came to the conclusion that Rup Singh was a necessary party to the suit and since he was added as a defendant on 29th December, 1953, that is, more than six years after the impugned alienations, the suit was barred not only against him but against all the defendants, because the amended plaint filed on 29th December, 1953 was the only properly constituted plaint and the suit should be deemed to have been instituted against all the defendants on that date. Without deciding other issues, the learned Judge dismissed the suit as barred by limitation. Against this decision the present appeal has been filed by Teja Singh.

Learned counsel for Shamsher Singh and Rup Singh respondents, has raised two preliminary objections (1) that Sardar Bahadur Bhagwant Singh, respondent, died on 30th October, 1960 and his legal representatives had not been brought on the record and the appeal had, consequently, abated and (2) that on the death of Sardar Bahadur Bhagwant Singh the plaintiff could not continue his suit for a mere declaration but he should bring a suit for possession of the property.

With regard to objection No. (1), after hearing the counsel for the parties, I am of the view that Sardar Bahadur Bhagwant Singh was not a necessary party to the suit, since not relief was claimed by the plaintiff against him. He was merely a pro forma defendant and, therefore, on his death the right to sue survived against the other defendant, Shamsher Singh.

As regards objection No. (2), the matter is concluded by a Division Bench decision of the Lahore High Court in Hurmat Ali Shah v. Tufail Mohammad AIR (sic) Lah. (sic) = 37 P.L.R. 99, wherein it was held as under-

If at the time when the suit is instituted, the plaintiff is not able to seek any further relief than a mere declaration of title he need not in his suit ask for any further relief and his suit will be competent under the substantive portion of S. 42. If, on the other hand, he is at that time able to seek further relief than a mere declaration of title and omits to do so, his suit will be barred under the proviso. Evidently, therefore, the ability of the plaintiff to seek further relief dates to the time when the suit is brought and cannot be utilized against him if that ability comes into existence only after the institution of the suit and during the pendency of the trial his right will be adjudicated upon as it existed at the time of the institution of the suit, and if later he does not choose to pursue the remedy that has become then available, he cannot be compelled under the law to do so.

Learned counsel for the respondents, in view of this decision, did not press his objection any further.

Coming to the merits of the appeal, it is common ground that if Rup Singh was a necessary party to the suit, then the decision given by the trial Court on the question of limitation is correct, but if, on the other hand, Rup Singh was not a necessary party, then the decision of the learned Subordinate Judge was liable to be set aside. So the sole question for determination is whether Rup Singh was a necessary party to this litigation or not.

''Necessary parties'' are those persons who ought to be joined parties to the suit. They are persons necessary to the constitution of the suit, that is, persons in whose absence no effective decree at all can be passed. In the present case, the plaintiff was merely challenging the alienations made by Sardar Bahadur Bhagwant Singh in favour of his son, Shamsher Singh. The alienation made in favour of Rup Singh was not being challenged in the present suit. As a matter of fact, the plaintiff had field another suit regarding the same. No relief was claimed against Rup Singh in the present suit. As will be seen from the facts of the case narrated above, it would be clear that the plea of the plaintiff was that Rup Singh was not a necessary party to the suit and he was being impleaded under the orders of the Court. Rup Singh himself in his written statement had stated that he was being unnecessarily dragged in this litigation. It is true that in the original plaint the plaintiff had impleaded him, because he was interested in maintaining the impugned mutations made by Sardar Bahadur Bhagwant Singh, but his name was removed on the request of the plaintiff because both Shamsher Singh and Rup Singh themselves had stated that he was not a necessary party to the suit and his name should be struck off from the list of defendants. Later on, Shamsher Singh, defendant again started pressing that Rup Singh was a necessary party and he should be impleaded as a defendant and on this the Court vide its order dated 30th November, (sic) directed the plaintiff to implead him as a defendant. When this was done, Shamsher Singh raised the objection that the suit was barred by limitation, because Rup Singh had been impleaded as a defendant after limitation. It is noteworthy that Rup Singh again insisted in his written statement that he was an unnecessary party to the suit. Therefore, it would be seen that Rup Singh was not a person necessary to the constitution of the suit. No relief was being claimed against him and the suit could well proceed and an effective decree could be passed in his absence. That being so the decision of the learned Senior Subordinate Judge on the question of limitation was incorrect and is liable to be reversed.

I would, consequently, accept this appeal, set aside the judgment and decree of the Court below and remand the case to it for decision on the other issues framed in the case. Parties have been directed to appear before the trial Court on 7th May, 1962. Costs will abide the event.

Counsel for the parties are agreed that the name of Rup Singh, defendant, be struck off from the list of the defendants in this suit. Consequently, the suit would now proceed against Shamsher Singh, defendant alone.

Dulat, J.

I agree.