Patna High Court
Aneshwar Prasad And Anr. vs Misri Lall And Ors. on 27 July, 1960
Equivalent citations: AIR1961PAT28, AIR 1961 PATNA 28
JUDGMENT Raj Kishore Prasad, J.
1. This plaintiffs' appeal, which arises out of a suit for redemption brought by them against the respondents is from the Judgment of Mr. J. C. Sinha,' then. Subordinate Judge, third Court, Gaya, who reversed the decree of the trial Court against defendants 7(a), 7(b), 7(c), 9, 9fa) and 9(h), and, dismissed the suit as against them, on the ground that they, being trespassers in possession of the mortgaged properties in suit, were not necessary parties to the suit.
2. The suit was decreed against all the defendants by the trial Court, but, on appeal, it was dismissed as against the fust mentioned defendants, who only were the appellants in the court of appeal below. The decree as against the other defendants was not challenged, and, therefore, it stood affirmed.
3. The sole question for determination, in the appeal, is whether the above mentioned defendants had been improperly joined as parties to the suit, and, whether the suit has rightly been dismissed against them by the court of appeal below?
4. Put shortly, the material facts are these: Mungeshwar LaI3 and Darbari Lall were admittedly uterine brothers. On 26-1-1944, Mungeshwar executed a rehan in favour of defendants 1 to 3, in respect of the properties, mentioned in schedules 2 and 3 of the plaint. On 20-3-1944, Mungeshwar again executed another rehan in respect of schedule 3 property only, in favour of the same mortgagees, that is, defendants 1 to 3. On 16-5-1949, Musammat Deo Kuer, widow, of Mungeshwar, who was by that time dead, executed an ijara in favour of the plaintiffs regarding schedule 4 properties which consisted of schedules II and III properties. On 29-8-1949, Deo Kuer, along with her daughter, defendant 4, and, her Nati, defendant 5, sold schedule 5 properties to 'the plaintiffs. The plaintiffs, therefore, brought the suit for redemption of the two rehans of 1944 in favour of defendants 1 to 3.
5. In the plaint, it was pleaded that Mungeshwar Lall and Darbari Lall were separated brothers. This fact, however, was challenged by the heirs of Darbari Lall, and of his another deceased brother, defendants 7 to 10, and they pleaded that both the brothers were joint. The trial Judge, however, found that Mungeshwar Lall and Darbari Lall were separate, and, this finding was not challenged in the court of appeal below, or, in this Court, and, therefore, that finding is final.
6. The plaintiffs, in paragraph 3 of their plaint, gave the reasons for impleading defendants 6 to 1.0 also as parties to the suit. It was alleged that defendants 6 to 10 falsely and incorrectly claimed to have redeemed the ijaras in suit without any title, and, therefore, to settle the matter at rest defendants 6 to 10 were also impleaded as defendants. It was further mentioned, therein, that defendants 1 to 3 and 6 to 10 being in collusion of one another, had all combined and made a common cause against the plaintiffs.
7. A joint written statement was filed on behalf of defendants 7(a), 7(b), 7(c) and 9, and, they admitted in paragraph 21 of their written statement, that Darbari Lall redeemed the ijaras of defendants 1 to 3 in 1949, and, that they have been coming in possession of the lands in suit to the knowledge of all including the plaintiffs. They, however, did not plead in the written statement that the suit was bad for misjoinder of parties, also because they were unnecessary parties to the suit, as they had a paramount title, and, therefore, they should not have been made parties to it. In paragraph 6 of the written statement, no doubt, they pleaded that the suit was bad for misjoinder of parties, but, they alleged that it was so because Dwarka Prasad or his sons and widow, who had never any concern with the suit lands, had also been made parties to the suit.
8. The trial Judge, who heard the suit, in the first instance, on a consideration of the evidence of both sides, recorded, inter alia, the following findings:
1. That Darbari Lal redeemed the rehans in suit;
2. That the plaintiffs' ijara was good and valid;
3. That the plaintiffs acquired ' good title to the lands in suit, and, that Deo Kuer, widow of Mungeshwar, had full disposing power over the suit lands;
4. That the alleged redemptions by Darbari Lal were collusive and fraudulent meant only to defeat the rights of the plaintiffs;
5. That the plaintiffs were entitled to redeem the rehans not only from defendants 1 to 3, but also from defendants 7 series and 9, who have made common cause, in this matter, with defendants 1 to 3;
6. That the suit was not bad for misjoinder of parties (Issue No. 4) because all persons who had any alleged interest in the rehans have been impleaded in the suit; and
7. That the suit way not bad for multifariousness (Issue No. 5).
9. On these findings, therefore, he passed a decree for redemption in favour of the plaintiffs against all the defendants, including the present appellants.
10. Against the said judgment and decree, out of defendants 6 to 10, only defendants 7(a) to 7(c) and 9 to 9(b) appealed to the court of appeal below. They did not, however, challenge any of the above findings of the trial court, except only on issues Nos. 4 and 5 above.
11. The only point raised by them, before the court of appeal below, was that they were not necessary parties to the suit for redemption, and that the suit as against them was not maintainable unless the plaintiffs also claimed against them a declaration of title arid recovery of possession on payment of the requisite court-fee. They, however, challenged the findings of the trial court on issues Nos. 4 and 5, which were about misjoinder of parties and multifariousness and which were answered in favour of the plaintiffs.
12. The learned Subordinate Judge, who heard and decided the appeal, held that Darbari Lal being a separated brother had no interest to protect, and, therefore, merely because the appellants before him were in possession of the rehaned properties in suit, they were not necessary parties to the suit. He, therefore, held that defendants 6 to 10 were not necessary parties to the suit, and as such, no decree could be passed against them. He, accordingly, while affirming the decree as against the other defendants, set aside the decree as against defendants 7 series and 9 series, who were appellants before him, and, dismissed the plaintiffs' suit as against them.
13. On second appeal to this Court, Mr. R. P. Katriar, who appeared for the plaintiffs-appellants, argued that the view taken by the court of appeal below is erroneous, because defendants 7 series and 9 series, were necessary parties to the suit, as rightly held by the first court, and, therefore, the plaintiffs' suit should not have been dismissed as against them. In support of his contention, he relied upon a Bench decision of this court in Khub Lal Upadhya v. Jhapsi Kundu, ILR 3 Pat 244: (AIR 1924 Pat 613), which was subsequently followed by a Division Bench of the Allahabad High Court in Jaddu Koeri v. Deep Chand Koeri, (S) AIR 1955 All 172.
14. In reply, however, it was attempted to be argued by Mr. Kumar Bahadur, who appeared for defendants 7(a) to 7(c) and 9 to 9(b) -- respondents, that merely because these defendants were in pos session of the mortgaged properties, they cannot be said to have such interest in the mortgage security, or, in the right of redemption as would make their joinder as co-defendants to the suit for redemption absolutely necessary under Order 34, Rule 1, C. P. C. In support of his contention besides relying on Order 34, Rule 1, C. P. C., he also relied on a decision of a learned Single Judge of the Nagpur High Court in Balaji Vinayak Buti v. Vithoba, AIR 1924 Nag 191. He, however, did not rely on another Single Judge decision of the same High Court in Adam Khan v. Dattaram, AIR 1921 Nag 67, which was relied upon by the court of appeal below in its judgment.
15. To meet this point, it was contended, on behalf of the appellants, by Mr. Katriar, in reply, that it was not open to those defendants, now respondents, to raise the objection of the suit being bad for misjoinder of parties on account of their joinder as defendants, when they did not plead so in their written statement, or, at or before the settlement of the issues in the trial court, or, as a matter of fact, at any stage of the suit in the first court. He, in support of his contention, relied on Order 1, Rule 13 of the C. P. C., and, also on the decision of the Allahabad High Court, above-mentioned, and, on the decision of the Nagpur High Court in AIR 1921 Nag 67 just mentioned and referred to in the judgment in appeal.
16. Let us first know who the several defendants were: Defendants 1 to 3 were the prior mortgagees, plaintiffs being the subsequent mortgagees and purchasers of the equity of redemption. Defendant 4 was the daughter of Deo Kuer, and, her husband, Mugeshwar Lal, deceased, and defendant 5 was the son of defendant 4.
17. Defendant 6 was one Dwarka Prasad, who was alleged to have redeemed the ijaras in suit on behalf of Deo Kuer with the money given to him by her. Dwarka Prasad died and, his widow and sons were substituted who are now respondents 19 to 21 to the present appeal.
18. Original defendants 7 to 10 were the brothers of Mungeshwar Lal. Darbari Lal, defendant 7, a brother of Mungeshwar, having died, his sons were substituted as defendants 7(a) to 7(c). Defendant 9, Jageshwar Lal, another brother of Mungeswar having also died, his sons were substituted it appears, as defendants 9 to 9(b). There defendants 7(a) to 7(c) and 9 to 9(b) were the appellants in the Court of appeal below; but when defendant 9(b), who was also an appellant there, died during the pendency of the appeal in the court of appeal below, his widow, sons and daughters were substituted as appellants 6 to 14 in the court of appeal below.
19. The aforesaid defendants 7(a) to 7(c) and 9 and 9(a) and the heirs of 9'b) are now respondents 1 to 14 to the present appeal.
20. The first question to be decided, on the arguments of both sides, is, whether the then appellants, now respondents, were entitled to raise the objection of the suit being bad on account of joining them as parties to the suit? Or, in other words, whether the suit was bad for misjoinder of parties on their account?
21. This objection, that the suit was bad for misjoinder of parties on their account, as rightly pointed out on behalf of the appellants, was not raised at all either in their written statement, or, at or before the settlement of the issue, or, as a matter of fact, at any stage of the suit, in the trial court, by the aforesaid defendants 7(a) to 7(c) and 9 to 9(b). Nowhere in the written statement there is any whisper even by them about this objection.
22. The question, therefore, is, what is the effect in law of not taking this objection? To answer this, we have to look to the C. P. C. The relevant provision of the C. P. C. on this question is Rule 13 of Order 1, which is in these terms:-
"13. All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived".
23. Here, there can be no doubt that Rule 13 of Order 1 was not at all complied with. The question, therefore, is what is the effect of this non-compliance?
24. The above Rule 13 refers to two kinds of objections, the one for non-joinder of parties, and, the other for misjoinder of parties. These objections must be taken at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, otherwise the objection shall be deemed to have been waived. This is the true scope of Rule 13 of Order 1.
25. It should be borne in mind, however, that a misjoinder or non-joinder of parties is not fatal to the suit, as would be clear from Rule 9 of Order 1 of the Code.
26. In the present case, as stated earlier, no doubt, an objection on the ground of misjoinder of parties was taken in the written statement by these defendants, but that misjoinder they pleaded was on account of impleading Dwarka Prasad, defendant 6, and his son and widow, on which objection an issue, Issue No. 4, "Is the suit bad for misjoinder of party?" was raised. This issue No. 4, therefore, obviously must relate only to the objection on the ground of misjoinder of parties on account of impleading defendant 6 and his heirs as parties to the suit.
It cannot possibly include the present objection, which was never taken at any stage of the suit. It is not the case of these defendants that this objection of the suit being bad for their misjoinder had subsequently arisen. In this view, therefore this objection of the suit being bad for their misjoinder, in view of Rule 13 of Order 1 of the Code, must be deemed to have been waived by them.
27. In Adjai Coal Co. Ltd. v. Parma Lal Ghosh, AIR 1930 PC 113 : 57 Ind Arm 144, the Privy Council referred to Rule 13 of Order 1, when disallowing an objection on the ground of misjoinder, which was raised for the first time before them. In rejecting this objection, Lord Thankerton, who delivered the opinion of the Board, observed:
"....that in effect these defendants' objection is on the ground of misjoinder, an objection which conies too late in view of Order 1, Rule 13, C. P. C., Act V of 1908."
28. If, therefore, the objection, raised in the court of appeal below, be considered to be an objection on the ground of misjoinder of parties, as it must be, then that objection should have been taken at the earliest possible opportunity, and, certainly, at or before the settlement of the issues, and when such objection was not taken, it shall be deemed to have been waived, and, it could not be entertained in appeal for the first time, as it came too late, in view of Rule 13 of Order 1 of the Code.
29. The above view is supported also by the decision of the Allahabad High Court in (S) AIR 1955 All 172, at p. 176, relied upon by the appellants.
30. My concluded opinion, therefore, is that it was not open to these defendants, now repondents, to raise the objection of the suit being bad for misjoinder of parties on account of their being impleaded as parties, when they did not raise it. at any stage of the suit, and, therefore, they must be deemed to have waived it, and as such, it could not be entertained in appeal, and, accordingly, they should not have been permitted to raise this objection in the court of appeal below.
31. The question posed by me, therefore, must be answered by saying that the effect of non-compliance of Rule 13 of Order 1 of the Code is to disentitle these defendants now respondents, to raise the objection of misjoinder on their account in the court of appeal below or even here.
32. Let us now examine the second contention of the respondents that they were not necessary parties to the suit within the meaning of Rule 1 of Order 34, Civil P. C.
33. Order 34, Rule 1 reads thus:-
"1. Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.
EXPLANATION -- A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage".
34. The object of Rule 1 of Order 34, requiring all persons, having an interest, either in the mortgage-security, or, in the right of redemption, to be joined as parties, is to avoid multiplicity of suits. This rule applies, only to suits relating to a mortgage, that is to say, to suits for foreclosure, sale and redemption, as indicated by the marginal note to the rule. It is true, as held by the Supreme Court, in Commr. of Income-tax v. Ahmedhhai Umarbhal and Co., AIR 1950 SC 134, that marginal notes in Indian Statute, as in an Act of Parliament, cannot be referred to for the purpose of construing the Statute; but, as observed by Upjohn, L. J., in Stephens v. Cuckfield Rural District Council, (1960) 2 All ER 716 at p. 720, "While the marginal note to a section cannot control the language used in the section, it is at least permissible to approach a consideration of its general purpose and the mischief at which it is aimed with the note in mind".
In order to avoid a circuity of action, the object of the above provision is that all claims affecting the equity of redemption should be disposed of in one and the same suit, as otherwise the party seeking the redemption might be sujected to a multiplicity of suits.
35. The question, therefore, is, What is the meaning of the words, "having an interest either in the mortgage-security or in the right of redemption", occurring in Rule 1 of Order 34 of the Code? Ift other words, Can trespassers in possession of the mortgaged property be considered to be such "persons having an interest either in the mortgage-security or in the right of redemption", within the meaning of Rule 1 of Order 34 of the Code, as would make them necessary parties to a suit for redemption?
36. In AIR 1921 Nag 67, Mittra, A.C.J., sitting singly, held that a trespasser in possession of the mortgaged property is not a necessary party to a. suit for foreclosure, and, the mortgagee is not entitled to a decree for possession or foreclosure as against him, and, that, at the utmost, the mortgagee-can on]y get a declaration that his mortgagors had a title to the mortgaged property at the date of the mortgage. In that case, it was held that the plaintiff of that suit could not ask for a decree for possession against defendant 3 of that suit as he was a mortgagee by conditional sale.
In that case, however, it was conceded by the plaintiff that defendant 3 was not a necessary party, and, further that he could not ask for a foreclosure decree against defendant 8, nor was a decree for foreclosure passed against him. In these circumstances, the observation of Mittra, A. C. J., based as it was on the concession of the plaintiff, must betaken to be a mere obiter dictum,
37. In AIR 1924 Nag 191, the just mentioned decision of the same court in AIR 1921 Nag 67 was referred to with approval, Kinkhede, A. C. J., sitting singly, observed that merely because a person is in possession of the mortgaged property, he cannot be said to have such interest in the mortgage-security, or, in the right of redemption, as would make his joinder as co-defendant to a suit to enforce a mortgage absolutely necessary under Order 34, Rule 1 of the Code. In that case, an earlier decision of that court in Sukha Ganda v. Chamra Saspasthy, (1904) 17 CPLR 29, in which it was held that if a person in possession of mortgaged property is joined as a co-defendant to a mortgage suit not because he has any right of redemption but because he is in possession of some of the mortgaged property, such a person should be discharged from the suit, was followed, In the case in hand the plaint did not disclose the nature and the mode of acquisition of the interest in which defendant 2 of that suit was in possession. His Lordship, therefore, found that the trial was defective from the very beginning, and that real points, necessary for the proper determination of the controversy between the parties, had not been placed before the Court and, therefore, he remanded the suit to the trial court with the above observations.
In my opinion, the point raised here did not arise, and, was not actually decided there, because the nature of the possession of defendant 2 of that suit had yet to be investigated on remand, and, therefore, whatever was observed was in the nature of an obiter dictum, without having any relation to facts like those of this suit.
38. For the above reasons, none of the two decisions, relied upon by the respondents, can be considered to be authoritative decisions on the point raised on behalf of the respondents.
39. The scope of Rule 1 of Order 34 of the Code was examined in AIR 1924 Pat 613 : ILR 3 Pat 244 by a Letters Patent Bench of this court, presided over by Sir Dawson Miller, C. J., and Sir B. K. MuIJick, J. The distinguished Chief Justice, Sir Dawson Miller, who delivered the judgment of the Court and with whom Mullick, J. agreed, ob-served:-
"Although it is, as a general rule, desirable in mirtgage suits to exclude all issues between the parties except those immediately concerned with the mortgage suit itself, I do not think that it can for a moment be doubted that the Court may, in certain eases, if it should think fit, allow other issues to be determined in such a suit even if they should depend upon separate causes of action, and in fact it seems to me quite clear on reading Order II, rule 4, that the Court may, in proper cases, grant leave for that to be done".
In that case, a suit for redemption was brought by the plaintiff of that suit seeking to redeem the mortgage and obtain possession of the property upon paying the sum found due on taking an account. In addition to the zarpeshgidars, certain other persons, who were then defendants 10 to 14, in that suit, were impleaded as defendants, although no specific relief was claimed as against them. With regard to them, it was alleged in the plaint that they had been recorded by the Zarpeshgidars as tenants of certain lands in the direct possession of the Zarpeshgidars, although in fact they had acquired no interest therein as tenants and that the entries so recorded were also false. In this connection, the distinguished Chief Justice said:-
"These defendants may be referred to as the tenant-defendants. There was no particular reason why in a suit for redemption the court should determine any issue relating to the status of the tenant-defendants. Any right they might assert as tenants might properly have been determined in a subsequent suit. On the other hand if they appeared and contested the allegations set out in the plaint, as in fact they did, and set up a paramount title, and if issues were framed with their concurrence, as in fact happened, I hardly think that they could afterwards object to this course if the issues should be decided against them".
Later on, the learned Chief Justice, while dealing with the case of the aforesaid tenant-defendants respondents, observed:-
"It appears. therefore, that they were claiming to be in actual possession of some of the mortgaged property, and looking at the proviso to rule 4 of Order II it is clear that the plaintiff in a suit for redemption may ask to be put in possession of the mortgaged property. Where the defendants raising a paramount title are those in possession and likely hereafter, if their differences are not settled by the mortgage suit, to resist the possession of a successful plaintiff in the mortgage suit, it would, in my opinion, in many cases, be convenient to allow the issues which have been raised to be determined in the mortgage suit, so that after determination of those issuses the plaintiff will know whether he may or may not get undisturbed possession of the property instead of having to bring a separate suit later on, and in a case like the present I can see nothing embarrassing in allowing these issues to be determined.
In any case it was a matter which was within the discretion of the court and although, as I have said, no formal request was made for the leave of the Court, nevertheless where both parties are at arms' length, where both parties are setting up varying titles to the mortgaged property, one claiming to be in possession and the other claiming that he has no right or title to be there, it seems to me that is just the sort of case in which the Court might well grant leave; and it the parties raise issues such as that which was raised in the present case and the court acquiesces in that course and allows those issues to be tried, I think it may well be said that the issues were raised with the leave of the Court. But assuming even that there was some irregularity in allowing the question of the status of the defendants to be determined in the present suit then that was an irregularity merely and on turning to Section 99 of the C. P. C. it seems clear that an irregularity such as that which I have indicated is no ground at all for setting aside the decision of the lower court on appeal unless the irregularity is one which affects either the merits of the case or the jurisdiction of the court".
40. In my opinion, the above decision of this court is on all fours with the facts of the present case, and, the ratio of that case fully supports the contention of the appellants that, here also, on the present case, these defendants respondents had rightly been impleaded as parties to the suit, and, that it was for that reason that they did not object to their joinder as defendants to the suit, rather they joined the trial, on the question as to whether their alleged redemption was bona fide, as alleged by them, or, collusive and fraudulent, as contended by the plaintiffs. These defendants not only did not raise any objection on the ground of the suit being bad for misjoinder on their account, rather they appeared and contested the allegations set out in the plaint, and set up paramount title, and issues were framed with their concurrence, and, the issues were decided against them, which thev did not challenge in the lower appellate court, and, as such. I hardly think they could after-Wards be permitted to object to this course.
41. The abovementioned decision of this court was followed and relied upon by a Division Bench of the Allahabad High Court in (S) AIR 1955 All 172, referred to above.
The above view is also supported by two decisions of the Madras High Court -- a single Judge decision in Veeraraghavalu Naidu v. Suryanarayana Panda, AIR 1936 Mad 338 and a Division Bench decision in Kasi Chettiar v. Ramasami Chettiar Firm, AIR 1937 Mad) 176, in which the just mentioned earlier case was referred to with approval.
42. I express my cordial assent to the principles laid down in the above cases.
43. It would not be profitable to go through the long roll of cases on this question; but when the authorities are sifted and winnowed, and, also on a review of the above considered authorities, the principles, which emerge from them, and, which can be extracted therefrom, may be re-stated thus:
44. The words, "persons having an interest either in the mortgage-security, or, in the right of redemption", mean that only those persons should be joined as parties to a suit relating to a mortgage who were either interested in the mortgage-security or in the right of redemption. For that reason, as a general rule, a prior mortgagee is not a necessary party to an action to redeem a subsequent mortgagee, unless his presence is necessary to ascertain the amount due to the latter.
Nor. a fortiori, can the rights of strangers be debated in an action for redemption, as the parties to the mortgage-dee 1 or persons claiming under them are the only proper parties to such actions. As, however, not only the mortgagor but also all persons who have acquired any interest in the mortgaged premises arc entitled to redeem, they should all be joined as parties.
45. Ordinarily, therefore, a person, who sets up a title paramount to that of the mortgagee should not be joined as a party to a suit on the basis of the mortgage, for he is neither interested in the mortgage-security, nor, in the right of redemption. Consequently, ordinarily the title of a person who has set up a claim adverse to the mortgagor or the mortgagee, or, had set up adverse claims to the mortgaged property, should not be investigated in a suit to enforce a mortgage. The joinder of such a person is irregular, and, it can only tend to confusion, but this rule is not an inflexible or invariable rule. Such a joinder, however, does not affect the jurisdiction of the court to try the issue as to paramount title raised in the same suit.
46. The question whether issues of title paramount should or should not be decided in a mortgage suit is dependent on each particular case. In each case the Court can exercise its discretion whether it will lead to inconvenience or confusion in trying the issue as to paramount title in the same suit. The court is not bound to adjudicate on it, but the fact that the defendant objects to the trial of such an issue would not preclude the Court from lying it if it thinks necessary in the interests of all parties that such a trial should take place. It is very desirable that the Court should as far as possible avoid multiplicity of litigation. The effect of joining a person who claims a title paramount need not necessarily result in a dismissal of the suit.
47. When, however, a defendant, who sets up adverse claims to the mortgaged property does not object to his joinder as a party to the suit, rather invites the Court to decide his claim, and, when such claim has been gone into by the trial court, the appellate Court should not reverse the decision of the trial Court on that ground alone unless the derision has affected the jurisdiction of the Court or caused a prejudice to the parties by the trial on the merits.
48. Accordingly, a person claiming a title paramount to the mortgagor or the mortgagee, or, a trespasser in possession of the mortgaged property, will not ordinarily be impleaded in a suit on the basis of the mortgage, but this rule, being not an inflexible or invariable rule, will depend on the contingencies of each case. The rule is based on convenience and to avoid unnecessary complications in a mortgage suit. If, however, it is necessary to decide the question of paramount title set up by the defendant in order to afford appropriate relief to the plaintiff, and, to avoid multiplicity of suits, such a question can be gone into in a mortgage suit.
49. There is, however, no question of want of jurisdiction in such cases. It can, at the most, be one of misjoinder, but when it is alleged that the person claiming adversely, or, by title paramount is, for instance, a benamidar of the mortgagee, or, is in possession and likely to resist the claim of a successful plaintiff in the mortgage suit or has really got no interest in the mortgaged property and has been set up by the defendant mortgagee to defeat the plaintiff's claim for redemption, it may be convenient to join him as a party to the mortgage suit. If it is not done then it is possible that the decree for redemption which is obtained by the plaintiff may become infructuous as he will not be able to obtain possession over the property which stands in the name of another person and who is setting up a paramount title at the instance of the mortgagee. In such cases after obtaining a decree for redemption he will have to institute another suit for possession of the mortgaged property against that person,
50. I would, therefore, answer the second question posed by me by holding that trespassers in possession of any, or all the mortgaged properties, strictly speaking, no doubt, are not necessary parties, within the meaning of order 34, Rule 1, to a suit based on a mortgage; but, certainly, they are proper parties, and, it cannot be laid down, as a general rule, that they should never, in any case be made parties, or, that if they are impleaded as parties, then their joinder as codefendants to such a suit, must necessarily entail its dismissal as against them, in all cases, even if there is acquiscence on their part. The question, therefore, whether such persons have been properly joined or not to such a suit for redemption, as here, will depend on the facts of each case.
51. In the present case, admittedly the defendants are in possession of the mortgaged properties, sought to be redeemed, and on the finding of the first court, which was not challenged on appeal by the defendants respondents in the court of appeal below, or, even here, their alleged redemptions were collusive and fraudulent, meant only to defeat the rights of the plaintiffs, who were held to be entitled to redeem the Rehans, not only From defendants 1 to 3, the mortgagees, but also from defendants 7(a) to 7(c) and 9 to 9(b), now respondents, who were in possession of the mortgaged properties.
No doubt, on the above mentioned unchallenged finding, they were trespassers in possession of the mortgaged properties without any lawful title, but, there is also no doubt, as it is plain, that the decree for redemption obtained by the plaintiffs will become infructuous, as they will not be able to obtain undisturbed possession over the property which is admittedly in wrongful possession of these defendants, now respondents, if they are not parties to the suit and the decree.
The case under consideration, in my opinion, was an eminently fit case where these defendants should have been made parties to the suit, and, their alleged claim of redemption investigated, and tried and decided before a decree for redemption was passed in favour of the plaintiffs,
52. There is another aspect of the matter also. These defendants pleaded in their defence that they had redeemed the ijaras in suit and that they were in possession of the mortgaged lands, and, they themselves invited a decision about their alleged redemption from the trial court, and, that question was decided against them, and, as such it was not open to them on appeal in the Court of Appeal below to raise the question that the suit was bad for misjoinder of parties on their account, If a party on being impleaded does not object he cannot after being cast in the suit change front and complain of the error in impleading him. Having taken the chance of a favourable verdict, he cannot be permitted to undo the effect of an adverse verdict by being permitted to retire from the suit. This position in law was conceded by Mittra, A. C. J., of the Nagpur High Court, in AIR 1921 Nag 67 at p. 68.
53. Here, the findings of the trial court against these defendants respondents were not challenged by them in appeal, but they wanted to get rid of them by raising the question that they were unnecessary parties to the suit, which objection, however, came too late, because they did not take it in the Court of first instance at any stage of the suit.
54. For these considerations, in my opinion, the contentions raised on behalf of the appellant are well founded, and, therefore, they must be given effect to.
55. I would, therefore, hold that defendants 7(a) to 7(c) and 9 to 9(b), or, the heirs of the deceased defendant 9(b), the appellants in the court of appeal below, now respondents 1 to 14 had no right to raise the objection of nonjoinder of parties on their account, as they did not take it earlier in the suit, and, therefore, they must, he deemed to have waived it, and, as such the court of appeal below had no jurisdiction to entertain that objection on appeal for the first time,
56. In the result, the appeal succeeds, the judgment and decree of the court of appeal below are set aside, and, those of the trial court are restored, and the plaintiffs' suit is decreed also as against defendants 7(a), 7(b), 7(c) and 9, 9(a) and the heirs of 9(b), who , are now respondents 1 to 14. The appellants will be entitled to their costs of this Court and of the Court of appeal below from the just mentioned defendants respondents t to 14 only. In all other respects the judgment and decree of the trial court, which were not challenged in the court of appeal below, are affirmed.