Karnataka High Court
Sri Chikkappa vs Ramappa on 6 November, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:39533
RFA No. 1447 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1447 OF 2006
BETWEEN:
1. SRI CHIKKAPPA
S/O SRI.HUCHAPPA
AGED ABOUT 42 YEARS
OCC:AGRICULTURE
R/O DUGGAVATHI VILLAGE
HARAPANAHALLI TQ
DAVANGERE DIST-577001.
2. SRI GUDDAPPA
S/O SRI.HUCHAPPA
AGED ABOUT 39 YEARS
OCC:AGRICULTURE
R/O DUGGAVATHI VILLAGE
HARAPANAHALLI TQ
DAVANGERE DIST-577001.
Digitally signed by 3. SRI KENCHAPPA
R MANJUNATHA
Location: HIGH S/O SRI.HUCHAPPA
COURT OF AGED ABOUT 36 YEARS
KARNATAKA
OCC:AGRICULTURE
R/O DUGGAVATHI VILLAGE
HARAPANAHALLI TQ
DAVANGERE DIST-577001.
...APPELLANTS
(BY SRI.JAYA VITAAL RAO KOLAR, SR. ADVOCATE A/W
SMT.RADHA.V.D, ADVOCATE)
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RFA No. 1447 of 2006
AND:
1. RAMAPPA
S/O KENCHAPPA @ TOOGAPPA
AGED ABOUT 60 YEARS
OCC:AGRICULTURE
R/O DUGGAVATHI VILLAGE,
HARAPANAHALLI TALUK-583131.
2. DUGGAVATHI LAXMAVVA
W/O LATE KARIYAPPA
AGE MAJOR, AGRICULTURIST
R/O SOWLANGA, HARNALLI ROAD
HONNALI TALUK-577001.
3. DUGGAVATHI NINGAPPA
S/O LATE KARIYAPPA
AGE MAJOR, AGRICULTURIST
R/O SOWLANGA, HARNALLI ROAD
HONNALI TALUK-577001.
4. DUGGAVATHI PARUSAPPA
S/O LATE KARIYAPPA
AGE MAJOR, AGRICULTURIST
R/O SOWLANGA, HARNALLI ROAD
HONNALI TALUK-577001.
5. G UJJAPPA
S/O CHANNABASAPPA
AGE MAJOR, AGRICULTURIST
R/O DOOR NO 2009/206,
TARALABALU BADAVANE IN
DAVANGERE TOWN-577001.
6. IRANI KOTRABASAPPA
S/O CHANDRASHEKARAPPA
AGE MAJOR, AGRICULTURIST
R/O OKKALIGARA PET IN
DAVANGERE TOWN-577001.
7. D K KHALEEL
S/O ANGADI KHASIM SAB
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RFA No. 1447 of 2006
AGE MAJOR, OCC:AGRICULTURE
R/O DUGGAVATHI VILLAGE
HARAPANAHALLI TALUK-583131.
8. MANJUNATH
S/O KARNAYAKANAHALLI MAHADEVAPPA
AGE MAJOR, OCC:AGRICULTURE
R/O BELAVANOOR VILLAGE IN
DAVANAGERE TALUK AND DIST-577001.
9. SHIVAPPA
S/O BEDARA PAKKERAPPA
AGE MAJOR, OCC:AGRICULTURE
R/O BUDIHALL VILLAGE
HARAPANAHALLI TALUK-583131.
10. SANNA NINGAPPA
S/O CHALUVADI LESI DODDA BASAVVA
MAJOR, OCC:AGRICULTURE
R/O HALLADAKERI
HARIHAR TOWN IN
DAVANAGERE DIST-577001.
11. JAYAMMA
W/O HANUMANTHAPPA
MAJOR, OCC:AGRICULTURE
R/O HONNALI TALUK IN
DAVANAGERE DIST-577001.
...RESPONDENTS
(R1 TO R4 - SERVED
NOTICE TO R6 TO R11 DISPENSED WITH V/O DTD 26.06.2007
R5 CALLED OUT-ABSENT)
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF
CPC AGAINST THE JUDGEMENT AND DECREE
DATED.07.04.2006 PASSED IN O.S.NO. 291/2002 ON THE FILE
OF THE CIVIL JUDGE (SR.DN.) HARIHAR, DISMISSING THE
SUIT FOR DECLARATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1447 of 2006
JUDGMENT
Heard Sri.Jaya Vitaal Rao Kolar, learned Senior Counsel for the appellants.
2. There is no representation on behalf of the respondents, though served with the notice of the appeal.
3. The present appeal is filed challenging the validity of the judgment and decree passed in O.S.No.291/2002 on the file of the Civil Judge (Sr. Division), Harihar.
4. Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking in the Court below.
5. Facts which are utmost necessary for disposal of the present appeal are as under:
The suit for declaration and consequential relief of mandatory injunction and possession was filed by the plaintiffs in respect of the landed property bearing Sy.No.110 measuring 4 acres 4 cents (herein after -5- NC: 2023:KHC:39533 RFA No. 1447 of 2006 referred to as suit property) situated at Duggavathi village, Harapanahalli Taluk, bounded on East by land of Sanna Siddappa, West by land of Koravara Laxmavva, North by land of Durugada Hanumappa and South by land of Hasi Hanumappa. The plaintiffs' contended that their father Sri.Huchappa had three brothers by name Kenchappa @ Toogappa, Kariyallappa and Durgappa.
Plaintiffs also contended that suit property originally measured 6 acres 6 cents and it is the ancestral property of the father of the plaintiffs and his brothers. During the life time of the father of the plaintiffs, there was a family partition and in the said partition, father of the plaintiffs and his brothers got 1 acre 50 cents each. It is further contended that two of the uncles of the plaintiffs sold their respective share of 1 acre 50 cents in favour of father of the plaintiffs and thereby father of the plaintiffs possessed 4 acres 4 cents of the land which is the suit property.
6. It is further contended that the revenue entries were mutated in the name of the father of the plaintiffs -6- NC: 2023:KHC:39533 RFA No. 1447 of 2006 soon after the aforesaid partition and sale. Thereafter father of the plaintiffs enjoyed the property. The plaintiffs further contend that the defendants failed to partition the property after the death of the father of the plaintiffs which necessitated the plaintiffs to file the suit. Plaintiffs further contended that there was an alienation by second defendant in favour of the third parties in respect of the portion of the suit property ignoring the rights of the plaintiffs in the said property and therefore, a declaration is sought for declaring that the alleged alienation did not bind the rights of the plaintiffs and sought for decreeing the suit.
7. As per plaint averments, fifth defendant is the owner in possession of the property in entirety as of now.
8. Upon service of suit summons, defendant Nos.1 and 5 appeared before the Court and filed their written statement. Defendant Nos.1 and 2 did not choose to file written statement.
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9. In the written statement of the first defendant, it is contended that the relationship is admitted including the relationship, the plaint allegation were denied. In the written statement of the fifth defendant, it is contended that land measuring 4 acres 4 cents was in the name of Agasibaglu Kenchappa and land measuring 2 acres 2 cents in the name of Agasibaglu Kenchappa and Haluvagalu Basavva in Sy.No.110B of Duggavathi village, Harapanahalli Taluk and Kenchappa sold 2 acres 2 cents of land to Jayamma on 28.07.1967 and remaining land of 2 acres 2 cents of land was sold to Shivaputrappa on 28.07.1967 and said Sanna Ningappa i.e., defendant No.10 and Jayamma sold 4 acres 4 cents of the above said land to one Shivappa by virtue of a sale deed to defendant No.9 on 12.01.1972. Several alienations have taken place and ultimately it is the fifth defendant who is the owner of the entire property by virtue of the sale transaction and thus sought for dismissal of the suit.
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10. Based on rival contentions of the parties, learned trial judge raised the following issues:
1. "Whether the genealogical tree is true and correct?
2. Whether plaintiffs prove that they are the owners of the suit properties?
3. Whether defendant No.1 proves that his father was purchased the suit property?
4. Whether defendant No.5 proves that he is a purchaser of the property?
5. Whether the suit of plaintiff is barred by time?
6. Whether Court fee paid is insufficient?
7. Whether suit is bad for non-joinder of necessary parties?
8. Whether plaintiffs are entitle for the relief sought for?
9. What decree of order?
11. In order to prove the case of the first plaintiff Chikkappa is examined as PW.1, two more witnesses namely Mannappa and Vadra Nagappa were examined as PW's 2 and 3 respectively. Plaintiffs relied in all 23 documents which were exhibited and marked as Ex.P1 to -9- NC: 2023:KHC:39533 RFA No. 1447 of 2006 Ex.P23 comprising of certified copy of the sale deeds as Ex.P1 to Ex.P9. Encumbrance certificates as Ex.P10 -
Ex.P13 and Mutation Register Extracts as Ex.P14 to ExP16, RTC extracts as Ex.P17 to Ex.P22 and Settlement Register extract as Ex.P23.
12. As against the evidence placed on record by the plaintiffs, the fifth defendant-Ujjappa got examined himself as DW.1 and he has relied on 5 documentary evidence which were marked and exhibited as Ex.D1 to Ex.D5. Ex.D1 to Ex.D4 are the certified copies of the sale deeds and Ex.D5 is he encumbrance certificate.
13. On conclusion of the recording of the evidence, the learned trial judge heard the parties in detail and after considering the material evidence on record, held issue Nos.1, 2 and 7 in the affirmative and remaining issues in the negative and dismissed the suit.
14. Being aggrieved by the same, the unsuccessful plaintiffs have preferred the present appeal.
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15. Sri.Jaya Vitaal Rao Kolar, learned Senior Counsel representing the plaintiffs, reiterating the grounds urged in the appeal memorandum contended that in the event of Court reaching the conclusion that necessary parties are not impleaded and suit has to fail on that ground, an opportunity must be provided to the plaintiffs for impleading the necessary party and proceed with the suit. Moreso, having held the issue Nos.1 and 2 in affirmative in favour of the plaintiffs.
16. In this regard he has placed reliance on the following judgments wherein it is held as under:
(i) Subbanna vs. Kamaiah reported in ILR 1988 Kar 786 10.6. However, it is necessary to point out that the trial Court, on holding that the sixth respondent being an unmarried daughter on the date of filing of the suit is a necessary party to the suit, ought to have adjourned the suit and directed the plaintiff to implead her instead of dismissing the suit. Rule 9 of Order 1 of C.P.C. specifically provides that no suit shall be defeated by reason of the mis-
joinder 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. A proviso has been added by Central Act 104 of 1976 to the effect that "nothing in this rule shall apply to non-joinder of a necessary
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 party." But sub-rule (2) of Rule 10 of Order 1 C.P.C., empowers the Court to direct the plaintiff to add a person to the suit who ought to have joined whether as plaintiff or defendant whose presence before the Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit. The instant case was admirably the one in which the trial Court ought to have adjourned the suit and directed the plaintiff to implead the sixth respondent instead of dismissing the suit solely on the ground that respondent-6 has not been impleaded even though all other issues were decided in favour of the plaintiff. In case, even after such a direction the plaintiff had failed to implead the 6th respondent then only the trial Court could have resorted to dismissing the suit for not joining the necessary party. This should have avoided the delay in effecting the partition by metes and bounds and it would have also avoided multiplicity of proceedings.
(ii) Hanumappa vs. Honnappa and Others reported in 1998(1) Kar.L.J 630
11. I have applied my mind to the contentions of the learned Counsel for the parties. It is one of the trite principles of law that technicalities are not to be allowed to hamper the course of justice and to frustrate the object of the Act. The writ jurisdiction is discretionary and where it appears to the Court that real injustice is imminent from the orders of the subordinate authority or Courts, it may take cognizance of fact. As regards the question of delay even on the facts as stated by respondent's Counsel that the petitioner or his father or respondents in the appeal were served with the notice but they abstained from hearing and they did not appear. Then in that case, the order in the appeal can be
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 said to have been passed no doubt on merits but ex parte. It is also one of the basic settled principles of law under the law of limitation, where Limitation Act applies in the matter of setting aside ex parte order, that application for setting ex parte decree in every suit or proceeding, it is provided that limitation may start from the date of knowledge of the parties, where summons was not duly served. Here the party had no knowledge of the order passed. No doubt even if it is taken that he was served with the notice of the appeal and thereafter absented, the decree was passed but no notice of that decree was issued to the present petitioner, the date of knowledge is material. Even otherwise, if there has been some delay or there has been delay in filing the writ petition, it is at the stage of admission, the Court can throw out the petition, on the ground of laches and delay. But when notice was being issued and appearance was put, matter has been heard on merits, this Court is not always bound to dismiss the writ petition on the ground of laches and I do not think it proper to dispose of the writ petition or dismiss the writ petition on the ground of laches. The other point that has been urged is that necessary parties have not been impleaded. In the present case the parties had been acting in the representative capacity. The respondent 3 when he filed the appeal, he did not implead his other brothers and it is only his name did appear in the appeal. Therefore, the petitioner cannot be said to have committed anything wrong when he impleaded the present respondent 1 as representing the other heirs and acting in the representative capacity, as he has been acting in course of proceedings in the first appeal. The petitioner in this case has not claimed anything adverse to his brothers or other
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 legal representatives of the grantee. Learned Counsel stated that it was filed for the benefit of those others i.e., for the benefit of his own brothers as well. In such circumstances, I do not think it just and proper to dismiss the writ petition on these technical grounds. No doubt it would have been proper if those brothers of the petitioner would have been impleaded as co-respondents. At this stage if I so order for their impleadment, it may delay the disposal. I take the statement of the petitioner's Counsel on its face value that the petition had been filed by the petitioner for the benefit of his own brothers that is other legal representatives of grantee. That as regards the merits of the case, a perusal of Saguvali Chit per se reveals that by this document, ownership of the land had not been granted in favour of the grantee and it was a free grant as mentioned in the deed itself, for no upset price. There has been no dispute on the point between the parties. The deed also indicates that there has been non-alienation clause to the effect that the granted land shall not be alienated for a period of 15 years. If this clause would not have been there, it might have been argued on the basis of Section 70 of the Mysore Revenue Code, that the occupancy rights granted are heritable and transferable. But they are subject to any law or condition under the rules framed under the Code. As there is non-alienation bar of 15 years and the grant also contains such a bar that land shall not be alienated for 15 years. In the present case, the alienation has been made within the period of almost 7 years from the date of grant, that is during the period of operation of non-alienation clause, alienation had been made by the grantee and so
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 definitely, the alienation had been illegal, null and void.
(iii) K.C.Laxmana vs. K.C.Chandrappa Gowda and Ors reported in AIR 2009 Kar 112
7. Non-Joinder of Necessary Party:
(a) Learned senior Counsel for defendant No. 2contended that, the suit is bad for non joinder of necessary party i.e., Subraya Gowda another coparcener. He contended that, in a suit for partition of joint family property, all the members of the joint family are, both necessary and proper parties. It was contended that, to pass an effective decree for partition, all the coparceners are necessary parties and since the suit was not properly framed, the decree passed is illegal and calls for interference.
(b) Per contra, learned Counsel for the plaintiff contended that, there is no plea in the written statement regarding non joinder of necessary party, which should have been raised at the earliest opportunity and cannot be permitted to be raised in the second appeal. Learned Counsel invited my attention to Rule 9 of Order I CPC, which provides that no suit shall be defeated by reason of non-
joinder of parties and to Rule 13 which states that, 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 ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived. Alternatively, it was contended that, Subraya Gowda the only other coparcener was not aggrieved by the alienation made under Ex.P1 and even otherwise, he has deposed as DW-3 in the suit and in favour of the defendants. Learned Counsel also submitted that, the subsequent event may also be taken into consideration i.e., Subraya Gowda has
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 passed away during the pendency of the proceedings and his legal representatives are on record, as the legal representatives of respondent No. 2/defendant No. 1 and that, even they are also not making any claim by seeking a share in the suit property. According to the learned Counsel, the non impleading of Subraya Gowda is not fatal to the suit.
(c) In view of the rival contentions, the point for consideration is:
"Whether the non-impleading of Subbaraya Gowda, can result into dismissal of suit, on account of non-joinder of a necessary party?"
There is no dispute that, defendant No. 1 has two sons i.e., plaintiff and Subraya Gowda. A partition of joint family property (other than suit property) has taken place amongst them, on 23.3.1990 as per Ex.P9, in which all the three coparceners were allotted with the share. Alleging that, the suit property was not subjected to partition under Ex.P9 and the partition that took place under Ex.P9 is a partial partition, claiming 1/3rd share in the suit property, the suit was filed. There is no plea in the written statement regarding non-joinder of Subraya Gowda as a necessary party. Considering the scheme of Order I and Order II CPC, the Hon'ble Supreme Court in the case of Prem Lala Nahata and Another Vs. Chandi Prasad Sikaria, reported in AIR 2007 SC 1247, has held as follows:
"13. It is well understood that procedure is the handmaid of justice and not its mistress. The scheme of Order I and Order II clearly shows that the prescriptions therein are in the realm of procedure and not in the substantive law or rights. That the Code considers objections regarding the frame of suit or joinder of parties only as procedural, is further clear from Section 99 of the Code which specifically provides that no decree shall be reversed in appeal on account of any mis-joinder of parties or causes of
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 action or non-joinder of parties unless a Court finds that the non-joinder is of a necessary party. This is on the same principle as of Section 21 of the Code which shows that even an objection to territorial jurisdiction of the Court in which the suit is instituted, could not be raised successfully for the first time in an appeal against the decree unless the appellant is also able to show consequent failure of justice."
So far as the law with regard to non-joinder of a necessary party, under Order 1, Rule 9 and Order 1, Rule 10, CPC, no suit shall fail because of misjoinder or non-joinder of parties. Court can proceed against the persons before it. The Court has power under Order 1, Rule 10(4) to give direction to implead a person who is a necessary party. In view of objection as to non-joinder having not been taken in the written statement and an issue to the said effect having not been settled by the Trial Court, the objection regarding non-joinder is deemed to have been waived. Be that as it may.
Subraya Gowda has deposed as DW-3 and supported the alienation of suit property made under Ex.P1 by defendant No. 1 in favour of defendant No.
2. Inspite of knowledge of Ex.P1, he did not claim any right or share in the suit property. The plaintiff has only prayed for decree of 1/3rd share in the suit property. No relief against Subraya Gowda was prayed. In fact the plaintiff has conceded the 2/3rd remaining share in the suit property in favour of other coparceners. Defendant No. 1 having executed Ex.P1 is deemed to have alienated his share. The alienation made under Ex.P1 was voidable at the instance of the non consenting of coparceners. DW-3 by his conduct, has approved and has consented for the alienation made by defendant No. 1 under Ex.P1 in favour of defendant No. 2. The subsequent event is also material. DW-3 has passed away. His legal representatives have been brought on record of this appeal as legal representatives of defendant No. 1,
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 after his demise. Their share and rights if any, can be the subject matter of consideration in the final decree proceedings. Hence, the non-joinder of DW- 3/brother of plaintiff, has no legal effect on the suit and on the preliminary decree of partition ordered in the matter. Hence, there cannot be dismissal of the suit, on the ground of non-joinder of Subraya Gowda.
(iv) Mannalal Serwgie vs. Ishwariprasad Jain and Another reported in AIR 1966 Calcutta 447
19. It would be convenient now to come back to the Full Bench decision, Kailash Chandra Mitra v. Brajendra K. Chakravarti, AIR 1925 Cal 1056. The facts in that case were shortly as follows: "The plaintiff was entitled to 4 as share of a Taluq under which there was a tenure which formerly belonged to one Gour Sundar Singh and which by successive devolutions and assignments had come into the possession of about 20 persons. The plaintiff had sued for his share of the rent of the tenure for a certain period, live persons some of whom had acquired their interest by succession and others under assignments from some of the heirs of Gour Sundar Singh. All these persons were in possession during the period in suit along with others who were not made parties. The plea taken in defence was non-joinder of parties. As there were two lines of cases in this Court taking contrary views, the matter was referred to a Full Bench on the question-
"whether a suit for rent is maintainable against some of the heirs or successors-in-interest of a deceased tenant without bringing all the heirs or successors-in- interest on the record."
B. B. Ghose, J. said as follows:-"It would scarcely serve any useful purpose to examine the various conflicting authorities. The question should be decided on well-recognised general principles, it is argued that the tenancy as well as the liability for
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 payment of rent has been inherited by the representatives of the deceased tenant as one body and this body as a whole is liable for the rent on the contract of their predecessor. If the landlord omits to implead any one of them in his suit for rent, the suit is defective and must be dismissed for not having been brought against the body of representatives as a whole. This argument seems to me to be grounded on a misconception. The heirs did not take the tenancy as an entire body forming as it were a partnership or a corporation, the individual members of which have no definite interest. They took as tenants-in-common, each having a definite share in the whole, which he might deal with in any way he pleased. As a matter of fact, as already stated, some of the heirs of the original tenant had assigned their interest to third persons. The liability of a tenant to pay rent arises from the fact of possession of the land as a tenant where there is no express contract, and all persons in possession of land as tenants are under an implied obligation to pay the rent for the land to the landlord, whether they got into possession by right of succession or assignment. A tenant-in-common is entitled to possession of every part of the estate and there is privity of estate between him and the landlord in the whole of the leasehold. The law imposes a liability on a tenant-in- common based on privity of estate for all covenants running with the land, and as his estate is an estate in the whole of the leasehold, there is no reason why he should not be liable for the entire rent, ..... Thus, whether a contract is implied for payment of rent by all tenants-in-common in possession of a leasehold, or whether it is held that the law imposes the liability for payment of rent by reason of privity of estate, any one of such tenants may be sued for the entire rent due to the landlord..... It is hardly necessary to add that a decree in such a suit will not have the effect of a decree for vent under Chap. XIV of the Bengal Tenancy Act."
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 Mukherji, J., agreed with this majority judgment on the point of liability. He said as follows:-
"Each one of the persons on whom a share of the estate may vest by assignment or inheritance becomes a tenant-in-common in the whole of the estate by reason of the indivisibility of the estate without the landlord's consent. Each one of such co- tenants has a privity of estate with the lessor in respect of the whole estate..... I am accordingly of opinion that each one of the defendants in the present suit is liable for the entire rent and there can be no objection to the maintainability of the suit on that ground."
21. Before concluding this point of nonjoinder, I must state that Mr. Bhabra appearing on behalf of the appellant has rightly pointed out that in the Written Statement it has merely been stated that the suit was bad for "non-joinder and mis-joinder of parties", without giving any particulars as to who was not joined. It is now firmly established that where a defendant objects to the maintainability of a suit on the ground of non-joinder of necessary parties, he should specifically state as to who are the persons who ought to have been impleaded but are not so impleaded. (See Fazl Ali J., in Narain Pandey v. Surajbhan Lal, AIR 1937 Pat 414). In any, event, under O.1 R.9 of the Civil Procedure Code, no suit shall be defeated by reason of nonjoinder of parties. If necessary, the Court should grant an opportunity to the party to join a party in whose presence the suit should have been decided. I would answer the three points formulated above in the following way:
1. Iswariprasad is liable as heir of Prasadi-lal in respect of the arrears of rent in suit, whether he had entered into possession or he had not entered into possession. In fact, however, he did enter into possession.
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2. The suit is not bad for non-joinder of parties. Iswariprasad is liable for the whole of the rent, but upon payment will be entitled to claim contribution from his co-debtors.
3. Since the liability of Iswariprasad is for the entire rent, and the rent accrued, not in the lifetime of Prasadilal but after his death when Iswariprasad had already entered into possession, he would be liable for the entire rent but would be entitled to sue for contribution as aforesaid.
(v) Tarapada Mandal and Another vs. Hajia Khatum Bibi and Another reported in AIR 1956 Calcutta
625.
10. It was also pointed out on behalf of the contesting respondent that in the written statement no specific defence was taken on this point, although it was stated in a part of the written statement that the suit was bad for defect of parties without stating which of the parties were left out. No issue was also framed on this point and in the course of the evidence all that transpired is that Abul Kasem left as his heirs a widow and a sister. It further transpired in evidence that this widow and this sister transferred their interest by a kobala Ex.4 dated 9-3-1943 to Rezia Khatun defendant 3. On behalf of the contesting respondent it has been contended that Rezia Khatun accordingly represents the interest of Abdul Kasem or was the successor-in-interest of Abul Kasem. It is contended on the other hand that she does not fully represent Abul Kasem's interest as she did not purchase all the interests of Abul Kasem and the mortgage clearly stipulated that if the debts were not satisfied out of the properties, the other properties, moveable and immovable of the mortgagors would be followed. It is certainly true that there is such a stipulation in the mortgage so that Rezia Khatun does not represent completely the
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 interest of Abul Kasem but she is the successor-in- interest of Abul Kasem so far as the mortgaged property is concerned. Partly for that reason and partly also because the written statement did not specifically raise this point and merely rested content with the statement that the suit was bad for defect of parties without giving any reason as to why it was bad for defect of parties, the defect, if any, on this ground should not be allowed to defeat the whole suit.
(vi) Shivangouda Lingangouda vs. Gangawwa Basappa reported in AIR 1967 Mysore 143.
5. There is a catena of decisions which have taken the view that one of the co-owners can bring a suit for ejecting a trespasser from the property owned by him and others either jointly or as co- owners, the basis being that he has a right to hold every inch of the joint property until a division takes place. The judicial opinion on this point is uniform - see the decisions in Ahmad Sahib v. Magnesite Syndicate Ltd., AIR 1915 Mad 1214, Tuljaram Harkisondas v. Harkisan Jagjivan, AIR 1929 Bom 244, Currimbhoy and Co., Ltd. v. L. A. Creet, AIR 1930 Cal 113, Sambhu Gosain v. Piyari Mian, AIR 1941 Pat 351, Ambika v. Rameshwar, AIR 1946 Oudh 221, Mt.Ram Kali v. Pahilwan Singh, AIR 1953 All 331, Biharilal v. Wasundarabai, AIR 1956 Madh-B 35 and Rama Motibhai v. Dalwadi Tupoo Ram, AIR 1956 Bom 264. No decision taking a contrary view has been brought to my notice. The ratio of the decision of the Madras High Court in Adhilakshmi Ammal v. T. Nallasivan Pillai, AIR 1944 Mad 530 or that of this Court in Somalinge Gowda v. Kalyanamma, S. A. No. 269 of 1959 (Mys) does not bear on the point under consideration. They dealt with cases where one co-owner sought to set aside the alienation made by other co-owner or where one co-owner sues for possession of property which is in the possession of another co-owner.
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9. I am also unable to agree with Mr. Deshpande that in a suit of this character, even if the Court is to decree, it can only decree the plaintiff's share in the suit property. The plaintiff has not sued for a partition of the property. She has sued for the possession of the entire property for the benefit of all the co-sharers. No partition can be granted to her in the absence of other co-sharers. I am unable to read the decision of the Madras High Court reported in AIR 1944 Mad 530 or the decision of this Court in S. A. No. 269 of 1959 (Mys) as laying down a rule that in a case where one co-owner brings a suit for ejectment of the trespasser, he can be granted a decree for possession only in respect of his share of the property taken possession of by the trespasser. That would be amounting to partitioning one item of joint property.
17. The respondent though served with notice of appeal, remained absent before this Court.
18. In light of the arguments put forth on behalf the appellants, the following points would arise for consideration:
1. Whether the plaintiffs have made out a case where an opportunity should have been provided for the plaintiffs to cure the defect in the frame of the suit?
2. Whether the impugned judgment needs interference at the hands of this Court?
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NC: 2023:KHC:39533 RFA No. 1447 of 2006
3. What order?
19. In the case on hand, the material evidence on record would clearly establish that the plaintiffs are claiming the right under their father who has got the property in a partition along with their uncles.
20. The material on record would also establish that two of the uncles of the plaintiffs have sold their respective shares which they have got in partition and thereby father of plaintiffs became the owner of 4 acres 4 cents.
21. However, he allowed the first defendant to manage the property on account of his oldage.
22. First defendant without there being any right whatsoever, started alienating the property and ultimately several alienations took place in respect of the suit property and thereby fifth defendant became the owner of the entire suit property measuring 4 acres 4 cents along with remaining property of another uncle of the plaintiffs.
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 As such fifth defendant now owns 6 acres 6 cents which were originally possessed by the ancestors of the plaintiffs.
23. The only contesting defendant is the fifth defendant. He has been served with the notice of the appeal and remained absent.
24. The material on record would go to show that fifth defendant has not challenged the issues which were held against him especially issue Nos.3 to 6.
25. In the absence of any such appeal by the contesting defendants, the relevant issues having been also held in favour of the plaintiffs, there is sufficient force in the arguments put forth on behalf of the appellants that an opportunity needs to be provided to implead the other sharers of Sri.Huchappa who are none other than the sisters of the plaintiffs. Taking note of the fact that Huchappa during his life time did not choose to partition the property and he got the suit property not only on his behalf but also on behalf of the minor members of the joint family who are none other than the plaintiffs, he held
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 the property as the manager of the Hindu joint family.
Therefore, he could not have allowed the first defendant to manage the entire property ignoring the right of other sharers.
26. It is settled principles of law and requires no emphasis that unless a partition takes place in respect of properties held by joint family, each and every coparcener of the joint family would be having right over every inch of land. As such alienation made by any one of the coparcener would not bind the other sharers in respect of their shares. Therefore, the fifth defendant ultimately becoming the owner of the entire suit schedule property would not bind the shares of the plaintiffs as they were not parties to such alienation. Nor the first defendant or the second defendant have acted as the kartha and sold the suit property on behalf of the other coparceners for the benefit of the joint family.
27. Though issue of limitation was raised before the trial Court, in the absence of any material evidence placed
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 on record by the defendants, the question of limitation is held in favour of the plaintiffs.
28. Under such circumstances, following the principles of law enunciated in the aforesaid judgments, this Court is of the considered opinion that the plaintiffs' be permitted to implead the other sharers and proceed with the case in accordance with law and for which purpose, the matter needs to be remitted back to the trial Court as the written statement of the daughters are necessary for adjudication of their claim in accordance with law.
29. At this stage, Sri.Jai Vitaal Rao Kolar, learned Senior Counsel submitted that daughters are not having any contra interest against the plaintiffs and therefore, their share can also be granted in this appeal itself.
30. However, if the daughters are sailing along with the plaintiffs, after they are impleaded in the suit, they may choose to transpose themselves as plaintiffs or support the claim of the plaintiffs by filing application and
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 seek their respective share. The said exercise cannot be carried out by this Court at this stage in this appeal taking note of the fact that all the respondents though served with the notice of the appeal, remained absent before this Court.
31. Accordingly, a case is made out that the matter requires to be remitted to the trial Court for disposal in accordance with law providing an opportunity for the plaintiffs' to implead all the sharers in the suit.
Accordingly, point No.1 is answered affirmative.
Consequently, point No.2 also answered in the affirmative.
RE.POINT NO.3:
32. In view of the binding of this Court on point Nos.1 and 2 as above the following:
ORDER i. The appeal is allowed.
ii. The impugned judgment and decree passed in O.S.No.291/2002 dated 07.04.2006 is hereby set aside.
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NC: 2023:KHC:39533 RFA No. 1447 of 2006 iii. Matter is remitted back to the trial Court for fresh disposal in accordance with law.
iv. The plaintiffs are at liberty to file necessary applications to implead necessary parties to the suit. The trial Court thereafter, shall afford reasonable opportunity for the parties to put forth their case and dispose of the case in accordance with law.
Appellants/plaintiffs shall appear before the trial Court without further notice on 27.11.2023.
v. Taking note of the fact that the suit is of the year 2002, the fresh disposal of the suit shall be completed on or before 31.07.2024 after impleading necessary parties.
No order as to cost.
Ordered accordingly.
Sd/-
JUDGE NS List No.: 1 Sl No.: 42