Punjab-Haryana High Court
Punjab Wakf Board Through The Secretary vs Harbans Singh on 12 May, 1997
Equivalent citations: (1997)117PLR392
JUDGMENT N.K. Kapoor, J.
1. This is plaintiffs appeal against the concurrent findings of the courts below dismissing the suit filed by it.
2. Punjab Wakf Board, Ambala Cantt instituted this suit for possession of the suit property from defendant on the ground that suit property is a Wakf property and that defendant is in unlawful possession of the same.
3. Defendant contested the suit pleading that actually his mother is in possession of the property who is running a small Gurudwara and a small school in the disputed property. Defendant further denied that suit property is a Wakf property or the same vest in the plaintiff. It was further asserted by the defendant that a building at a cost of Rs. 8,500/-has been raised at the site. Plea of bar of limitation was also raised.
4. A number of issues relating to nature of the property, authority of the attorney to institute the suit, suit being within limitation, plea raised by the defendant that he has become owner by adverse possession were framed.
5. Trial Court on the basis of evidence adduced came to the conclusion that though there is no evidence of express dedication of the suit property as a mosque but there is evidence that it was being used by Muslims for offering prayers and so held that the suit property is a Wakf by user, issue No. 1 was decided in favour of the plaintiff. Similarly, under issue No.2 the Court held that Mohammad Iqbal was duly authorised to institute the present suit. Examining the pleas as to whether the suit was instituted within the period of limitation, the Court held that the same was barred by time. Resultantly, the suit of the plaintiff was dismissed.
6. Lower appellate Court on re-appraisal of the evidence whereas reversed the finding of the trial Court with regard to bar of limitation but upheld the decree holding that suit was bad for non-joinder of necessary parties. The lower appellate Court also found no substance in the plea of the appellant that even in the absence of mother of the defendant (even if taken to be a necessary party) a decree for joint possession should be passed in favour of the appellant. As per the lower appellate Court such a decree will not be executable against the mother of the defendant, who infact is in actual physical possession of the property and so there is no need to pass an inexecutable decree. Similarly, the Court found no ground to remand the case and permit the plaintiff to amend the pleadings with a view to implead mother of the defendant as one of the defendants. Resultantly, appeal was dismissed, thus, affirming the judmgent and decree of the trial Court.
7. Learned counsel for the appellant has argued that the Court below having decided all material issues in favour of the plaintiff has, however, chosen to non-suit him on the solitary ground that one of the person has not been arrayed as a defendant. According to the counsel, proviso to Order 1 Rule 9 CPC was added vide Act No. 104 of 1976 i.e. this added provision came into effect with effect from 1.2.1977 and since the suit had been filed sometime in the year 1971, proviso now added to Order 1 Rule 9 could not be made basis to dismiss the suit of the plaintiff. Thus, in the facts and circumstances of the case the Court ought to have permitted the plaintiff to implead mother of the defendant as one of the defendants and thereafter examined the case. Moreover, since the possession of the defendant has been found to be un-authorised, atleast a decree for joint possession ought to have been passed in favour of the plaintiff. Lastly, the Court ought to have permitted the plaintiff to amend the plaint and for that matter should have remanded to the trial Court for a fresh adjudication after permitting the parties/added party to adduce evidence as they may wish.
8. Having heard the learned councel for a while and on perusing the judgments of the Courts below, I am of the view that the appeal is devoid of merit and so deserves to be dismissed. A suit for possession was filed in June, 1971. Pursuant to notice issued by the Court defendant put in appearance and filed written statement. A perusal of the written statement reveals that defendants had taken a specific plea to the effect that his mother was in actual possession of the property and that she was running a Small Gurudawara and a small school in the suit property. Conceded-ly, despite a specific objection taken by the defendant no attempt was made by the plaintiff to amend the plaint with a view to implead the other person, namely, mother of the defendant. Since no request was made for amendment of the pleadings the Court on the basis of pleadings framed the issues and permitted the parties to adduce evidence. One Abdul Mazid was examined by the plaintiff as his witness. This witness deposed that suit property is a Mosque and that Dewan Khana Zafar Ali form part of the Mosque. He further stated that Muslims used to offer prayers in this Mosque and other various ceremonies in connection with marriages and funerals were performed in Dewan Khana. This witness, however, admitted that defendant and his mother has taken possession of the suit properly about 17/18 years back. Defendant while appearing as his own witness too deposed that he and his mother had occupied the suit property 23 or 24 years back when they came from Pakistan in the year 1948. The statement of these two witnesses leave no manner of doubt that property was in occupation of the defendant and his mother long before the institution of the suit and this fact was well known to the plaintiff as well. It is on the basis of the statement of Abdul Mazid PW2 and the defendant that the Court below has come to the conclusion that mother of the defendant is also in occupation of the property, who is running a school and maintaining a place of worship-a Gurudawara. This being the factual position, she indeed has acquired some right in the property and so has been rightly held by the Court to be a necessary party to the matter under enquiry. Precisely for this reason it has been held that she is a necessary party and so no effectual decree can be passed in her absence.
Order 1 Rule 9 reads as:-
"O.l R.9, Misjoinder and non-joinder:- No suit shall be defeated by reasons of the misjoinder or non-joinder 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:
Provided that nothing in this rule shall apply to non-joinder of a necessary party."
9. As noticed above, before Act No. 104 of 1976 proviso now added to Order 1 Rule 9 CPC was non-existent yet the Court had the occasion to examine this provision in Adiveppa Channappa Kittur v. Rachappa Balappa Hosmane, AIR (35) Bombay 211 (F.B.) and the Court held as under:-
"The rule, therefore, appears to be that all persons who have an interest in the mortgage debt should be necessarily joined in the same action to enforce the security as there cannot be an effective decree giving discharge to the defendants unless all parties entitled to the mortgage moneys happened to be made parties to the cause at the date of the institution of the suit, and if any of the mortgagees refuse to join as plaintiffs, then they should be made defendants in the suit, so that all parties interested in the subject matter of the suit should be before the Court either in the form of plaintiffs or defendants. In the absence of the suit being framed as indicated above, the suit is not maintainable and it being not maintainable at the date of the institution of the suit addition of parties after the period of limitation has expired cannot avail the plaintiff in such a suit inasmuch as there is no cause of action under S.3, Limitation Act, and in those circumstances O.1, R.9, Civil P.C. cannot cure the defect and resuscitate the suit which in fact disclosed no cause of action at the date when it was instituted."
10. Similarly, in Rameshwar Bux Singh and Ors. v. Ganga Bux Singh and Ors., A.I.R. (37) Allahabad 598 the Court held that as the party did not exercise the discretion in terms of Order 1 Rule 9 CPC at the earliest no indulgence needs to be shown in view of this conduct. Court, thus, declined to exercise its discretion under Order 1 Rule 9 CPC by observing that to allow plaintiff to add parties at this stage would be to reopen the whole trial and to send the case back for a fresh investigation, a course which ought to be discountenanced.
11. The apex Court while examining a suit filed by trustees of endowment property of family deity for possession of certain rooms against one of the Shebaits held in Profulla Chorone Requitte and Ors. v. Satya Choron Requitte, AIR 1979 Supreme Court 1682 that all the Shebaits were necessary parties and since all of them have not been impleaded such a suit is not properly constituted and so was liable to be dismissed on this score alone.
12. Thus, presence of necessary party is essential before any effective decree can be passed by a Court else any such decree will remain ineffective and inexecutable. Precisely for this reason the Court below declined the prayer made even after having held the plaintiff to be the owner of the property. Thus, finding no merit in the appeal the same is dismissed.
No order as to costs.