Patna High Court
Janak Yadav And Anr. vs Sarbajit Rai on 26 April, 1984
Equivalent citations: AIR1984PAT307, AIR 1984 PATNA 307, (1984) ORISSA LR 749 1984 BBCJ 715, 1984 BBCJ 715
JUDGMENT Chaudhary Sia Saran Sinha, J.
1. This Second Appeal, at the instance of the defendants, is directed against a judgment of reversal and involves for consideration a short substantial question of law namely, whether the plaintiff's suit was liable to be dismissed for non-joinder of one Mosst. Jileba Kuer?
2. One Pitamber Raut had three sons, namely, Sarbjit (who is the plaintiff), Sarjug, who died leaving behind his wife Jileba, and one Bhuil, who, undisputedly, died issueless. The plaintiff's case was that after the death of Pitamber his three sons came in joint possession over the ancestral property, which, undisputedly, included the suit land. Bhuil died in a state of jointness with his two brothers. Sarjug too, according to the plaintiffs case, died at Rangoon some time in the year 1935 A. D. leaving his widow Jileba Kuer but no issue. The property of Sarjug, on his death, passed by the right of survivorship to the plaintiff and Jileba was only a maintenance-holder-Jileba was a pardanashin lady of weak Intellect and of old age and, taking advantage of the same, the two appellants got two sale deeds executed by her each on 4-7-1977 with respect to the suit land by practising fraud and without payment of consideration. Impleading the two defendants, who are appellants before this Court, the plaintiff, therefore, instituted the instant suit for a mere declaration that the two sale deeds were void, inoperative and they did not confer any title to the defendants in respect of the suit land,
3. The defendants contested the suit by filing a common written statement alleging, inter alia, that the suit was not maintainable and was liable to be dismissed for non-joinder of Jileba Kuer. while not disputing that Bhuil died in a state of jointness with the plaintiff and Sarjug, the defendants averred that there was a Private partition between Sarbjit and Sarjug some time in the year 1936 in which they partitioned their properties and came in separate possession. Thereafter, in the year 1957, Sarjug died at Rangoon and accordingly his widow Jileba Kuer came in possession of his properly and having a necessity, she executed the two sale deeds alleging that the properties transferred by the two sale deeds were in her possession.
3A. On 9-11-1978, issues were framed. Although, one of the issues framed was that the suit was not maintainable, no specific issue was framed regarding the suit being bad for non-joinder of Jileba Kuer. On 19-4-1979, both the parties were prcsent, their lawyers were heard regarding the issues and the issues were recast. No issue, however, was framed on that date, also as to the suit being bad for non-joinder of Jileba Kuer.
4. The trial Court dismissed the plaintiffs suit. There is no discussion in the judgment of the trial court as to the effect of non-joinder of Jileba Kuer.
5. The plaintiff took up the matter in appeal. The lower appellate Court found that Sarjug died in a state of jointness with the Plaintiff. It disbelieved the defendants' story of separation between Sarjug and plaintiff in 1936. It further found that Sarjug died in the year 1935, as alleged by the plaintiff and not in the year 1957 and that Jileba Kuer had, therefore, no right to execute the two sale deeds. The result was that the appeal was allowed and the judgment and decree of the trial Court was set aside and the plaintiff's suit was decreed. There is no discussion in the judgment of the lower appellate Court also about Jileba Kuer being a necessary party to the suit or otherwise. The defendants have now taken up the matter in second appeal before this Court.
6. Jileba Kuer executed the two sale deeds in favour of the appellants. The simple prayer made in the plaint by the plaintiff was that the two sale deeds, abovementioned, were inoperative and void and they did not create any title in the appellants in respect of the suit properties. It is undisputed that Jileba Kuer appeared as a witness on behalf of the defendants being D. W. 2 and she supported the case of the defendants. We do not find Jileba Kuer filing any petition before any of the two Courts below for her being added as a party. The trial Court did not frame any issue regarding non-joinder and the plaintiff was thus not allowed an opportunity to adduce evidence on this point of non-joinder. Two courses were open to the trial Court -- (i) to decide the suit as between the parties before it, leaving with the plaintiff the risk of not having brought the other defendants before the Court, or (ii) to have used the power given to it under Order 1, Rule 10 (2), Civil P. C., (C. P. C.), if the Court considered it necessary and to direct that Jileba be added. Nothing was done. The appellants too kept quiet and after they lost the matter in the lower appellate Court, they have now raised this point.
7. Order 1, Rule 10 (2), C. P. C., lays down, inter alia, that "the Court may at any stage of proceedings, either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." No such petition appears to have been filed before any of the two courts below nor did the Courts below take any action on their own motion.
8. Order I, Rule 9, C. P, C., lays down as follows:--
"No suit shall be defeated by reason 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 right and interests of the parties actually before it." There is a proviso to this rule which runs as follows:--
"Provided that nothing in this rule shall apply to non-joinder of a necessary party."
Question is whether, in the facts and circumsatnces of this case, Jileba Kuer should be regarded as a necessary party to the suit so as to entail the dismissal of the suit for her non-joinder? The term "necessary party" has not been defined in C. P. C. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Whatever may be the dispute or difference between the plaintiff and Jileba Kuer, the short point involved in the instant title suit was whether the two sale deeds executed in favour of the appellants by Jileba Kuer created any right in the appellants as against the plaintiff? If we keep in view the limited relief sought for in the instant suit, it cannot be said that Jileba Kuer was such a person in the absence of whom no order can be made effectively. In such a situation, though Jileba can be regarded as a proper party to the suit in the facts and circumstances of the case particularly in view of the limited relief sought for in the instant suit, she cannot be regarded as a necessary party so as to entail the dismissal of the suit.
9. Two decisions were cited by the learned counsel for the appellants to support his case that Jileba was a necessary party to the suit. The facts of these two cases are different. In AIR 1954 Raj 287 (Poonam Chand v. Motilal), the plaintiff brought a suit against his brother M and the alienees from him on the allegation that there was a partition in the family and the property in dispute came to the share of the plaintiff's branch and, therefore, M had no authority to sell the property to the alienees. During the pendency of the appeal, one of the respondents, who was a necessary party, died leaving behind his three minor sons, only two of whom were brought on the record within the period of limitation. It was held that the estate of the deceased respondent, who was a necessary party, was sufficiently represented by the two minor sons and the appeal did not abate by reason of the fact that the third minor son was not brought on record within the limitation period. In AIR 1974 Kant 115 (Rajabibi v. Ameerali), the suit instituted was a suit for ejection against a trespasser repudiating the claim of the other co-sharers and claiming exclusive title in himself. It was held that such a suit will not be maintainable in the absence of the other co-sharers and that non-impleading of the co-sharers in a suit of this nature was a fatal defect as the co-sharers are not only proper parties but are necessary parties. The matter in controversy in the instant suit related to the two sale deeds and the plaintiff brought on record, the two appellants who claimed title thereunder. If the Court can deal with the matter in controversy so far as regards the rights and interests of the parties actually before it, the Court can proceed with the suit. It cannot be said, in the facts and circumstances of this case, that no effective decree can be passed in the instant suit in the absence of Jiteba Kuer. Order I Rule 10 (2), C. P. C., gives a clue as to who should be deemed to be a necessary party. The terms "all the questions involved in the suit" occurring in Order I, Rule 10 (2), C. P. C., means question as between the parties to the litigation, that is to say, questions with regard to the right set up and the relief claimed on one side and denied or with-held on the other and not the questions which may arise between co-plaintiffs and co-defendants inter se or to questions between the party to the suit and a third party. In the facts and circumstances of this case, it cannot be held that Jileba Kuer was a necessary party to the suit whose absence will entail dismissal.
10. No other point having been raised before this Court, it must be held that there is no merit in this second appeal which must fail and is accordingly dismissed, The judgment and decree of the lower appellate Court are hereby confirmed. In the facts and circumstances of this case, the parties are directed to bear their own costs of this second appeal.