Patna High Court
Smt. Phulpati Devi And Anr. vs Parmeshwar Rai And Ors. on 29 July, 1980
Equivalent citations: AIR1981PAT77, 1981(29)BLJR185, AIR 1981 PATNA 77, 1981 BBCJ 182, (1981) BLJ 146, 1981 BLJR 185
JUDGMENT Chaudhary Sia Saran Sinha, J.
1. This litigation has a chequered history involving jungle of facts in which the judgment dated 31-3-1958 of the Additional Subordinate Judge, Patna, in Title Suit No. 92 of 1955, instituted by the present plaintiff and one Domi Sao against the present defendants and others, which was confirmed in appeal by this Court in First Appeal No. 372 of 1953, furnishes a beacon light.
2. Within the Khagaul Municipality of the District of Patna there exists a house. Its holding number initially was Holding No. 1, Subsequently in the Municipal survey records its holding was shown as split up in two holdings-- one bearing Holding No. 1 and the other holding No. 1 (a), representing the northern 2/3rd and the southern l/3rd portions of the initial holding. Undisputedly, this holding at one time belonged to Quadir Bux and on his death it passed on to Abddul Hai, one Bibi Halima, sister of Abddul Hai, and others. In the year 1924, one Domi Sao, ancestor of defendants 3 to 8, purchased the interest of Abddul Hai in the property in suit. The interest of Halima was purchased by present defendants 1 and 2 by a registered sale deed dated 14-1-1949. The portion of the suit property purchased from Halima contained certain tenants thereon, who occupied the premises on payment of rent.
3. In the year 1949, Domi Sao as the sole plaintiff instituted two money suits 73 and 74, each of the year 1949, against the present defendants 1 and 2, who are the appellants before us, as also the tenants in occupation of the southern part of the disputed property. The relief claimed there, inter alia, was for the realisation of rent from the tenants existing on the same. The defendants of these money suits, including the present appellants, contested the suits and the same were dismissed. Domi Sao took up the matter in appeal, being Appeals Nos. 98 and 99, each of the year 1952. Subsequently as it appears, on some agreement between the parties to the appeal Domi Sao withdrew that appeal and the question of title was left open. The appeals were dismissed as withdrawn but the cost awarded to the defendants remained intact.
4. In the year 1955, Domi Sao and the present plaintiff, the latter claiming to be a purchaser from Domi Sao in respect of the 8 annas interest in the disputed property by a registered sale deed dated 7-4-1950, instituted Title Suit No. 92 of 1955 for declaration of title and confirmation of possession, there being an alternative prayer for recovery of possession in respect of the southern portion of the initial holding recorded in the Municipality as Holding No. 1 (a). Undisputedly, besides the appellants, Halima as also the tenants thereon, were impleaded as defendants in that suit. It was a contested suit. The trial court held that the two plaintiffs, namely, Domi Sao and the present respondent, had perfect title over 15 annas 4 pies interest in the disputed property, namely the entire 16 annas interest of original Holding No. 1, and that only 8 pies interest in the same belonged to defendants 1 and 2, namely, the two appellants before us. Instead of allowing the prayer for confirmation of possession a decree for joint symbolical possession was passed, which possession was obtained by the present plaintiff as also Domi Sao in Execution Case No. 5 of 1962. This judgment of the trial court in Title Suit No. 92 of 1955, Ext. 5 (a) being the judgment, was, undisputedly, affirmed in appeal by this court in First Appeal No, 372 of 1952 and this judgment has become final.
5. While Title Suit No. 92 of 1955 was pending, another event took place. The defendants of Money Suits 73 and 74 each of 1949 put the decree into execution on 10-11-1955, 4-10-1955 being the date of institution of Title Suit No. 92 of 1955. The lone judgment-debtor in these execution cases was Domi Sao, the present plaintiff not having been arrayed in any capacity in these execution cases. It resulted in the interest of Domi Sao in the property in suit being put to auction on 22-5-1956 which auction sale was confirmed on 4-7-1956.
6. Domi Sao then filed Title Suit No. 77 of 1956 against the defendants who had levied the two execution cases for declaration that the auction sale was illegal and invalid. As was submitted at the Bar, the auction sale was set aside but the aggrieved party has taken up the matter in appeal, which is still pending.
7. In the year 1965, the instant suit with which we are concerned in this appeal, was instituted by Parmeshwar Rai as the sole plaintiff impleading the two defendants-appellants the purchasers from Halima as also defendants 3 to 8, the heirs and representatives of Domi Sao, Domi Sao having died in the meanwhile. Defendants 3 to 8 by a written statement supported the case of the plaintiff but did not choose to contest the suit which was contested only by defendants 1 and 2. Prayer in the suit, as it appears, was for partition on a declaration that the 8 annas interest in the property in suit belonged to the plaintiff. The suit was decreed by the trial court and an order was passed for appointment of a Pleader Commissioner to carve out a separate Takhta representing the 8 annas interest of the plaintiff in the suit property. With the consent of the lawyers of all the parties the decision as to the right, title and interest over the remaining interest in the disputed property amongst the defendants inter se was left open. Defendants 1 and 2 have now carried this matter before this court in this First Appeal.
8. Faced with the judgment in Title Suit No. 92 of 1955, only two contentions were raised before this Court by the learned counsel for the appellants, namely, that the instant suit was barred under the provisions of Order II, Rule 2 of the Code of Civil Procedure, and secondly that all the auction purchasers at the auction held on 22-5-1956, referred to above, not having been impleaded as defendants in the instant suit, the suit was bound to fail. These two contentions were strongly resisted by Shri Gosh, learned counsel for the respondents.
9. As regards the 1st point, it was contended by the learned counsel for the appellants that the entire suit property not having been made the subject matter of dispute in Title Suit No. 92 of 1955 and the relief claimed therein being confined only to 1/3rd of the property in dispute any claim made by the plaintiff in the instant suit will be deemed to have been relinquished by the plaintiff and will not be entertainable in law. This plea, it must be said at once, must fall for the ground both on technical ground as also on merits. The sine qua non for attracting the mischief contemplated in Order II, Rule 2 of the Code of Civil Procedure is the cause of action. The best document to show as to what exactly was the cause of action in the earlier suit was the plaint of that suit. The appellants did not care to bring on record the plaint of that suit and no explanation worth the name is forthcoming for not doing so. The judgment (Ext. 5/a) and the certified copies of the decree of the suit, namely, Exts. 'C' & '6' cannot furnish this lacuna. Relying on a decision of the Supreme Court reported in AIR 1964 SC 1810 (Gurbux Singh v. Bhooralal) a Full Bench of this Court held in AIR 1967 Pat 423 (Jichhu Ram v. Peary Pasi) that in a plea of bar under Order 2, Rule 2, the plaint of the previous suit must be proved and if it is not proved it is fatal to the defence. This is a technical bar and the appellants having failed to bring on record the plaint of that title suit they can-not override this technical bar. This apart the expression "cause of action" in Order 2, Rule 2 of the Code of Civil Procedure means the cause of action for which the suit was brought. The test for finding out whether the subsequent suit would be barred because of an earlier suit is whether the claim in the subsequent suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit. Domi Sao, as stated above, instituted the above-mentioned two suits for realisation of rent from the tenants existing on the southern portion of the disputed property recorded in the Municipal Survey subsequently as Holding No. 1 (a). The suit was dismissed. The appeal preferred was withdrawn on the question of title being left open. This led to the institution of Title suit 92 of 1955, the cause of action being limited only to the tenanted portion of the disputed property, namely, Holding No. 1 (a), in respect of which portion alone rent was claimed in the two money suits. The trial court declared in Title Suit 92 of 1955 that Domi Sao and the present plaintiff respondent Parmeshwar Roy had valid title in holding No. 1 (a) to the extent of 15 annas 4 pies and that defendants I and 2, namely, the present appellants had title therein only to the extent of 8 pies. On the pleadings of the parties two other issues namely, issues Nos. 6 and 7 were also framed in Title Suit No. 92 of 1955. Issue No. 6 was whether Domi Sao had acquired 16 annas interest in the "original house" meaning thereby the entire initial holding No. I by adverse possession. Issue No. 7 was whether the sale deed dated 7-4-1950 of the plaintiff No. 2 was bona fide and whether he (plaintiff No. 1) had acquired title to the property purchased. It was held that plaintiff No. 1 had acquired only 15 annas 4 pies interest in the original holding out of which he had sold 8 annas interest to plaintiff No. 2 to which the latter had title. This finding was not an incidental one. On the pleading of the parties the decision on these two issues was necessary for the decision of title over the newly carved holding No. 1 (a). Being emboldened by these findings, the present plaintiff instituted the present suit. In the instant suit while the interest of the plaintiff to the entire suit property to the extent of 8 annas was declared and he was given a decree for partition, the question of right, title and interest of the defendants inter se in the remaining disputed portion of the property in suit was left open. The plaintiff felt inconvenience in joint possession of the property in suit. He demanded partition from the joint owners who did not accede to his request. This was the cause of action in the instant suit instituted by the plaintiff. It cannot, therefore, be said by any stretch of imagination that the cause of action of the two suits, referred to above, was the same. Rather they were distinct causes of action. This contention was, therefore, rightly rejected by the trial court, which finding is affirmed.
10. Coming to the plea of non-joinder, Order 1, Rule 9 of the Code of Civil Procedure states that no suit shall be defeated by reason of 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. There is a proviso to this rule which states as follows:--
"Provided that nothing in this rule shall apply to non-joinder of necessary party."
Necessary parties are those in whose absence the court cannot pass an effective decree at all. Where the plaintiffs can obtain complete and effective relief in respect of the subject matter of the suit, it is not necessary to join any other party. The persons whose non-joinder is complained of are the tenants on the southern portion of the property in suit. True they were amongst the auction purchasers in the auction sale on 22-5-1956, referred to above, but the suit having been instituted earlier to the levying of these execution cases the principle of lis pendens will apply. Section 52 of the Transfer of Property Act, 1882, states, inter alia, that during the pendency in any court of any suit or proceeding, which is not collusive, it being not the case of appellants that Title Suit 92 of 1955 was collusive in nature, and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. This is one aspect. The other aspect is that the decree for cost was obtained only against Domi Sao, the present plaintiff being not a party to those money suits. Obviously, therefore, interest of the plaintiff in the property in suit cannot in any way be affected by the auction sale in question. There is yet another aspect. Besides others even the persons for whose absence the instant suit is said to be bad for non-joinder of the parties were parties to Title Suit 92 of 1955. The declaration about the plaintiff respondent having 8 annas interest in the property in dispute and about his joint possession thereon was made in presence of all those defendants. An agreement was reached between the parties, as is evident from the judgment (Ext. 5/a), that the question of right, title and interest in the suit pro-party among the defendants inter se be left open and in fact it was left open. The instant suit is solely concerned with the carving out of separate Takhta for the plaintiff alone. In view of the finding arrived at in Title Suit 92 of 1955 in presence of all the persons concerned, the determination on the question of title amongst the defendants of Title Suit 92 of 1955 in future, if any, is not going to affect the right, title and interest of the present plaintiff in the suit property as claimed by him. We are well aware of the requirements of a suit for partition. What , a plaintiff of such a suit is required to establish is unity of title and possession of the plaintiff which stood determined and declared in Title Suit No. 92 of 1955 in presence of all those whose nonjoinder is complained of. In the facts and circumstances of this case those persons cannot be said to be necessary parties to the suit. This contention is thus devoid of any merit and it also fails.
11. No other point having been raised before this Court, the appeal must fail. It is accordingly dismissed with costs and the judgment and decree of the trial court are hereby affirmed.
B.P. Jha, J.
12. Learned counsel for the appellants contends that they should be allotted 8 pies interest in the front portion of the property in dispute. The parties are entitled to raise such plea before the Pleader Commissioner, I agree with the proposed judgment.