Telu and others vs Kurdia and another

Gokal Chand Mital, J.

Surta and others filed a suit under Order 1, Rule 8 of the Civil Procedure Code (for short ''the Code'') on their own behalf and behalf of other proprietors of Khewat No. 63 Patti Lohriwal of village Batta, tehsil Narwana, district Jind for declaration that they were entitled to claim partition of the joint land in the aforesaid Patti on the basis of holding of each proprietor in the village, known as Hasab Rasad Khewat, against Kurdia and 5 other named persons on their own behalf and on behalf of other proprietors of Khewat No. 63, Patti Lohriwal who wanted partition of the joint land of the Patti on the basis of their possession of the land in dispute. The trial Court gave permission to the named plaintiffs as also to the named defendants to represent the suit in their representative capacity. After proclamation was made, the case proceeded on merits. The six named defendants only appeared in response to the proclamation made and no other person came forward from the village to join the suit as plaintiff or as defendant. The six defendants filed written statement and contested the suit on merits and disputed the plaintiffs'' plea for partition on the basis of ownership and came forward with the plea that they are entitled to partition on the basis of their respective possession of the land in dispute of which they were in possession since the time of their fore father. They also claimed adverse possession and pleaded that the plaintiffs were no longer cosharers in the land in dispute. On the contest of the parties, several issues were framed. On consideration of the evidence in the case, the trial Court by a well considered judgment dated 29.10.1984 decreed the suit for declaration that the land in dispute measuring 7883 bighas 5 biswas comprised in Khewat No. 63 Khata Nos. 270 to 433, shown in the Jamabandi for the year 195960, situated in Patti Lohriwal in the revenue estate of village Batta could be got partitioned by the plaintiffs who are cosharers in the column of ownership in the Jamabandi and they were entitled to have possession of their share after getting it partitioned. Various pleas raised by the defendants were negatived. The six named defendants went up in appeal before the District Judge. The learned Additional District Judge, before whom the appeal came up for consideration, without adverting to the merits of the case, proceeded to decide the appeal on a technical point which was neither raised before the trial Court at any stage till decision nor in the grounds of appeal filed before the District Court. The learned Additional District Judge proceeded to hold that proper proclamation was not made in the village regarding the proprietors in the village under Order 1 Rule 8 of the Code which was mandatory provision and on the basis of certain decisions cited before him, allowed the appeal and after setting aside the judgment and decree of the trial Court remanded the case to the trial Court for fresh trial in accordance with law after effecting proper service on the persons interested in the suit land. This is second appeal of the plaintiffs against the aforesaid order.

The suit was filed wayback in December, 1982. More than 5 years have passed so far and no cosharer from the Patti in dispute has come forward to take part in the proceedings except the six named defendants who are impleaded in the suit. The six defendants were in possession of the joint land of the Patti much beyond their share and that is why they were objecting to the partition of the joint land on the basis of their ownership in the village and for that reason they were impleaded as defendants by name and the suit was filed in the representative capacity so that if any other cosharer wanted to come forward and join the proceedings as plaintiff or defendants could do so. These defendants contested the suit on merits and failed in the trial Court. During trial, they did not bring any evidence or stated if the proclamation made in the village for service of the other cosharers was either not made or was improper. Nor it was shown if any prejudice was likely to be caused to any other cosharer and who was that cosharer. Not only this, when they went up in appeal before the District Court, no such averment was made even in the grounds of appeal.

With this background it has to be seen whether factual data considered by the lower Appellate Court regarding proclamation was correct or not and whether on the peculiar facts of this case, the six named defendants who are appellants before the District Judge could be allowed to raise this point.

First adverting to the factual data, the record of the trial Court shows that the named plaintiffs and the named defendants were allowed to sue in the representative capacity under Order 1 Rule 8 of the Code by specific order of the trial Court passed on 13.12.1982 and it was ordered that proclamation for service of inhabitants under Order 1 Rule 8 be issued. The order was as follows :

"Suit be registered. Heard Considering the facts that the number of the persons interested in the suit land is numerous and they are having common interest in the suit land, so the plaintiffs are permitted to file the present suit in representative capacity. Similarly, No. of the defendants and the persons against whom relief is sought is numerous, the defendants are permitted to be sued in representative capacity. So necessary proclamation for service of inhabitants under Order 1 Rule 8 CPC be issued on filing PF, copy of plaint and list of inhabitants for 24.12.1982."

According to the aforesaid order, proclamation for service of the inhabitants of the village was to be made. The proclamation which was issued is at page 6 in part ''B'' of the file of the trial Court. It is a very detailed proclamation mentioning the names of the five plaintiffs who represented the cosharers of the Patti wanting partition on the basis of ownership shown in the jamabandi 195960, the names of the six defendants who represented those cosharers of the Patti who wanted partition according to possession shown in the jamabandi for 195960. Notice in the name of representatives, residents and coowners of the Patti in Batta, Tehsil Narwana in regard to the aforesaid suit was ordered to be issued by proclamation under order signed by the Sub Judge dated 15.12.1982 and then there is a note of the Sub Judge dated 15.12.1982 that the aforesaid order be carried out by proclamation and beat of drums. Copy of the plaint, and list of owners was attached. The note signed by the learned Sub Judge also shows that a copy of the notice, a copy of the plaint and list of owners should be affixed at a public place in the village. On the back of the aforesaid notice, the report of the Process Server shows that the order of the Court was carried out in letter and spirit. Three named defendants were personally served whose thumb impressions were obtained in token of service. Other three named defendants were not found in the village. The Process Server pasted one copy at the prominent place in the village (the actual words cannot be read because it is torn) and fee of the chaukidar who made the proclamation was stated to have been paid to him. The aforesaid report was supported by the affidavit of the Process Server. When the matter came before the trial Court, by order dated 24.12.1982, it noted in the order that proclamation has been effected for service of the inhabitants under Order 1 Rule 8 of the Code. It is thereafter that the case proceeded in the trial Court without objection from any other landowner in the Patti who may have share therein.

It is true that the list of the persons whom the plaintiffs represented and the list of persons whom the defendants represented may not be of the entire residents of the village or landowners who may be interested in the dispute but proclamation was made in the village under the orders of the trial Court to all the residents and owners of the village so that whosoever further wanted to join, could do so. None came forward.

It has to be seen whether with this back ground the mandatory provisions of Order 1 Rule 8 of the Code had been complied with or not and whether such a point can be allowed to be raised at the instance of the six defendants who took part in the proceedings throughout and whether they have been able to show that there was likelihood of any wrong or any prejudice to the individual landowner who may not have come forward to join the proceedings.

There are two well recognised modes of partition of the Pattis or shamilat land belonging to the proprietary body. One is on the basis of the land revenue payable by each owner called ''Hasab Zar Khewat'' and the second is on the basis of land owned by each proprietor called ''Hasab Rasad Khewat.'' If any cosharer or proprietor in the joint land wants to retain possession of excess land with him, he has to come forward and claim ownership by way of adverse possession. The six defendants who wanted to claim ownership by adverse possession were made defendants by name. The plaintiffs had doubt about some more persons and they submitted a list of 23 such persons, who were to be represented by the six defendants. In spite of proclamation none came forward to join the proceedings. The only point in dispute was whether partition had to be effected on the basis of prorate ownership of each cosharer or on the basis of possession. The basis of possession can never be rule for partition because if a cosharer is in possession of land more than his share, he is to give up the possession of the extra land at the time of the partition. In this background we have to consider the reported decisions which have been relied upon by the Court below.

I have already held that provisions of Order 1 Rule 8 of the Code were fully complied with and question of reference to any decide case does not arise. All the same, brief reference may be made to the reported judgment referred to by the Court below. In Bishan Singh Kala Singh and others v. Mastan Singh Sarup Singh, AIR 1960 Punj. 26, finding was recorded that the provisions of Order 1 Rule 8 of the Code were not substantially complied with and the case was remanded to the trial Court for compliance of provisions and then decide the matter afresh. In Radha Kishan v. Raja, 1976(78) PLR 271, it was emphasized that the provisions of Order 1 Rule 8 were mandatory and was not an empty formality and therefore, it was the duty of the Court to give notice of the institution of the suit to all the persons having the same interest therein. There is no quarrel with this proposition. In Jai Narain and others v. Chandgi Ram, 1977 PLJ 527, it was held that the issue of proper notice and its service either personally or by public advertisement on the persons concerned is indispensable preliminary to the trial of the suit under Order 1, Rule 8 of the Code. With this proposition of law also there is also no quarrel because the requisite notice was served by proclamation and beat of drum and a copy thereof was also pasted at a public place.

In a later decision Amarjit Singh and others v. Darshan Singh, 1979 PLJ 296, it was ruled that where a suit is sought to be filed on behalf of a class or sect of certain faith it is difficult to file list of persons sought to be represented, then notice under Order 1 Rule 8 of the Code can be served by citation or proclamation. This decision was erroneously distinguished by the Court below by saying that in the present case it was not impossible to file list of persons sought to be represented who were 20 in number. I am unable to subscribe to the view taken by the Court below. May be there were 200 proprietors in the Patti who could be interested in this litigation, on the peculiar facts of this case and for decision of the point involved, it was not necessary to give a complete list of all the residents and proprietors of the Patti.

The other factual mistake committed by the lower Court is that it observed that notice did not disclose the nature of the suit or the reliefs claimed so as to enable the interested persons to get themselves impleaded as parties. The proclamation which was sought to be issued clearly gives all possible details as to the nature of the suit as also the relief claimed. Not only this, it was mentioned that the plaintiffs'' case is that they wanted a declaration to seek partition on the basis of ownership recorded in the jamabandi 195960 after giving details of the Patti regarding which declaration was sought and then counter claim made by the defendants that they wanted partition on the basis of possession as recorded in the jamabandi 195960 which was being disputed by the plaintiffs. If the lower Appellate Court had seen this carefully, I have no doubt, the aforesaid observations would not have been made and probably the decision of the case at the lower appellate stage would have been different.

For the reasons recorded above this appeal is allowed and after setting aside the order of the lower Appellate Court dated 3.4.1986, the matter is sent back to that Court for decision of the appeal on merits i.e. on the issues already framed on which the trial Court gave the decision, in accordance with law. The parties through their counsel are directed to appear before the lower Appellate Court on 27.4.1987. Costs of this appeal shall be borne by the party who loses the case before the lower Appellate Court.