Madhya Pradesh High Court
Manik Rao vs Safakat Hussain & Ors. on 15 March, 2018
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HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(SINGLE BENCH: HON.SHRI JUSTICE PRAKASH SHRIVASTAVA)
Second Appeal No.467/1998
MANIK RAO & OTHERS Appellants
Vs.
SAFAKAT HUSSAIN(Decd) THROUGH L.Rs. & ors. Respondents
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Shri B.S.Gandhi, learned counsel for the appellants.
None for respondents.
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Whether approved for reporting :
JUDGMENT
(Delivered on 15/3/2018) This Second Appeal under section 100 of the CPC is at the instance of the defendants challenging the concurrent judgments of the two courts below. Trial court by the judgment dated 18.7.1994 had decreed civil suit No.66-A/94 and the first appellate court by the judgment dated 29.6.1998 by dismissing the Appeal has affirmed the judgment of the trial court.
2. The respondents had filed the suit for injunction and damages with the plea that respondent Nos.1 to 3(original plaintiff Nos.1 to 3) had purchased 100 mango trees from Shankarlal, Kesharrao, Yashwantrao and Dhanpatrao vide three separate registered sale deed dated 16.12.1976. Out of these, nine mango trees were located on the northern maid of survey No.227 belonging to respondent No.1, therefore they were using and utelizing these mango trees as the owner in possession thereof but the appellants on 13.5.1980 2 and 27.5.1980 by unauthorisedly plucking the mango fruits from these trees had caused the damage of Rs.1300/- and had threatened the respondents for reaping the mango crop in future, therefore the present suit was filed.
3. The appellants by filing the written statement had taken taken the plea that they were owners in possession of disputed 9 mango trees located in survey Nos.228 and 229 belonging to them.
4. The trial court had decreed the suit holding that respondent Nos.1 to 3 had purchased the mango trees from the earlier owner and that the appellants had unauthorisedly plucked the mango crop from the disputed trees. Accordingly the trial court had passed the decree directing the appellants to pay damages of Rs.300/- and restrained the appellants from use and utelization of the nine disputed mango trees. The first appellate court has affirmed the judgment of the trial court.
5. This court vide order dated 12.2.1999 had admitted the Appeal on following substantial questions of law :-
"(i) whether the suit of the respondents was bad for misjoinder of parties ?
(ii) whether the appellate Court below erred in holding that suit did not abate on account of death of one of the co-plaintiffs i.e. Saifuddin, even when he was exclusive owner of part of the suit property purchased by him under a separate sale deed ?"
6. So far as the first question of law is concerned, learned 3 counsel for appellants submits that plaintiff No.4 was unnecessarily joined in the suit, hence the suit is liable to be dismissed on the ground of misjoinder of parties. On perusal of the record, it is noticed that trial court had framed the issue No.6 in this regard and has found that though the plaintiff No.4 is not the owner of the disputed trees but he had taken the disputed trees for profit, therefore he was impleaded and entitled to the permanent injunction only for that limited period. Nothing has been pointed out to dispute the said factual position, hence it cannot be held that the suit suffer from misjoinder of parties and question No.1 is answered accordingly.
7. So far as question No.2 is concerned, the plaintiff No.3- Saifuddin had died during the pendency of the suit and his L.Rs. were not brought on record. This issue has been dealt with by the first appellate court and it has been found that even after the death of plaintiff No.3-Saifuddin, the right to sue survives in favour of other plaintiffs in view of the Order XXII Rule 2 of the CPC. In terms of Order XXII Rule 2 CPC if there are more than one plaintiffs and any of them dies but right to sue survives to the surviving plaintiffs, the suit can proceed at the instance of the surviving plaintiffs. In the present case the plaint averment contained in paragraph Nos.2 and 3 of the plaint reveal that the disputed 9 trees were situated on the northern side of the maid of the land of the plaintiff No.1. Even otherwise all the three plaintiffs were jointly taking the crop from the disputed mango trees, therefore after the death of one of the plaintiffs, the right 4 to sue will survive in favour of other plaintiffs.
8. The impugned order passed by the learned court below reflects that respondents-plaintiffs had purchased the trees from the earlier owners who were reaping the mango crop from the disputed trees. It has been found that predecessor- in-title of the respondents-plaintiffs were in possession of the suit trees through whom the respondents-plaintiffs had received these trees. It has also been found that since the plaintiffs and their predecessor-in-title were receiving the crop from the trees in question which were situated on the maid of the land of the plaintiffs, therefore ownership right had accrued in their favour. These findings are not under challenge in this Second Appeal.
Having regard to the aforesaid, the question No.2 is also answered in favour of the respondents-plaintiffs and Appeal is found to be devoid of any merit which is accordingly dismissed.
(Prakash Shrivastava) Judge mk Digitally signed by MUKTA KAUSHAL Date: 2018.03.16 17:43:25 +05'30'