Patna High Court
Bindeshwari Prasad Mandal And Ors. vs Kunji Lal Mandal And Ors. on 8 March, 1967
Equivalent citations: 1968(16)BLJR80
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, J.
1. This 'civil revision and, the second appeal filed by the plaintiffs arise under these circumstances. The plaintiffs claim to have purchased on the 12th April 1943 about nine bighas of land from Harkeshwar Mandal (defendant No. 22), his alleged one-third share in Khata No. 79, the total area of which is about thirty-seven bighas, One Gossain Mandal had purchased in the same year, that is 1943, some land from Mahanthi Mandal, deceased husband of defendant No. 19. Finally, the plaintiffs claim to have purchased on the 9th, February, 1948 about seven Bighas of land from Gossain Mandal in Khata No. 616, the total area of which is about forty-seven-bighas. The common ancestor of the various sets of defendants was one Labdhu Mandal. According to the plaintiffs' case, he had six sons named Govind, Gokhul, Bansi, Pithu, Kankal and Bhajan. Their case, further, is that Gokhul, Pittu and Bhajan died issueless. Govind had two sons, Dorik and Choa. Defendants 1 to 9 of the defendants first party are said to be the defendants of Dorik and Choa. Defendants 22 to 24 of the category of the defendants fourth party are the descendants of Bansi. Kankal had two sons, Raudi and Lalji. Defendants 10 to 18 of the defendants second party are the descendants of Raudi and defendants 19 to 21 of the third party are the descendants of Lalji. The plaintiffs' case is that all these branches were in separate possession of some lands for the sake of convenience but there was never any partition of the lands by metes and bounds between the three existing branches, the remaining three branches having become extinct on three sons of Labdhu Mandal dying issueless. They, therefore, filed a partition suit for carving out, out of the joint lands, the areas that they had purchased from some of the co-sharers. The suit was mainly contested by defendants 1 to 9. Defendant No. 1 died during the pendency of the suit; but, for the sake of convenience, in this judgment, he will be referred to as defendant No. 1. Their case, in the main, is that the lands had been partitioned amicably by metes and bounds in the year 1319 Fasli. The parties have been dealing with the lands, transferring and purchasing them separately, since then. In their defence had joined some of the other defendants out of the defendants second to fourth parties. Some have supported the case of the plaintiffs. In defendants' group, the minor defendants are defendants 15 to 18, 20, 21, 24; 28 and 29. It seems that the natural guardians under whom these minors were placed in the plaint did not file their appearance on, behalf of their wards. Pleader; guardians were appointed as guardians ad litem. A com promise is said to have been entered into between the plaintiffs and the defendants and have agreed to the passing of a partition decree in their favour on the basis that the plaintiffs had one-third share, as claimed to have been purchased by them. Without detailing the facts with reference to which another plea was taken by the defendants first party, suffice it to say that, according to them, Dorik was the son of Bhajan who had not died issueless and, therefore, in the year 1319 Fasli, there were four divisions of the lands giving one-fourth share to each branch.
2. The learned Subordinate Judge who tried the suit decreed it by his judgment dated the 20th March, 1952. He decreed it on contest against the defendants first party and in presence of the other defendants who had filed the compromise petition. The learned Subordinate Judge accepted the case of the plaintiffs, rejected the case of previous partition set up by the contesting defendants and also seems to have rejected their case that there were four, existing branches in the family of Labdhu Mandal, each entitled to one-fourth share. Accordingly it appears, he granted a decree to the plaintiffs on the basis of one-third share to each of the three branches. The defendants first party went up in appeal which was registered and numbered as Title Appeal 23 of 1952.
3. In this title appeal, the minor defendants who were represented by the pleader guardians ad litem in the trials Court were shown as respondents under those very guardian's, as, obviously, they had to be. The defendants first party appellants were asked to deposit a total sum of Rs. 64 as guardians' cost for the four sets of pleader guardians, Rs. 16 per each set. They failed to make the deposit within the time granted by the lower appellate court. The result was that the names of the minor respondents who were, as stated above, defendants 15 to 18, 20, 21, 24, 28 and 29 were struck off by an order of the lower appellate court on the 16th September 1952. On the 18th January 1954, the major respondents who were also the natural guardians of the minors aforesaid but were not representing them in this litigation filed an application supporting the case of; the defendants first party appellants. During the hearing of the appeal, when it was taken up in the first instance by the learned Additional District Judge, Mr. Brahmadeva Narain, a point was argued on behalf of the plaintiffs-respondents there that the whole appeal had become incompetent as the names of the minor respondents, for failure to deposit the guardians' cost, were struck off. Realising the difficulty in their way, the defendants first party appellants filed an application in the lower appellate Court on the 16th January 1956 that the said minor respondents were not necessary parties to the appeal, as they had not contested the suit nor was any relief claimed by the appellants as against them. Yet the appeal was dismissed by Mr. Brahmadeva Narain, as incompetent on the 25th January 1956. On merits, however, he held that the case of previous partition set up by the contesting defendants was true and the lands had been partitioned amicably long long ago but the decree for partition had to be maintained, as the appeal arising out of the partition suit had become incompetent in whole in absence of some of the parties, who were no longer parties to the, appeal. The defendants first party came up to this Court in Second Appeal No. 244 of 1956.
4. In this Court, the front was again changed by some of the major defendants belonging to the category of the defendants second to fourth parties some of whom had supported the case of the defendants first party in their written statement, later had sided with the plaintiffs by entering into a compromise with them but unscrupulously went again against them in Second Appeal No. 244 of 1956. On the 9th December 1956, an application was filed under 'Order I Rule 10 and Section 151 of the Code of Civil Procedure hereinafter called the Code, by Dasrath Mandal (respondent No. 5), Awadh Mandal (respondent No. 7), Mossammat Janakmai (respondent No. 9), Mosammat Binda Devi (respondent No. 11) and Bherthi Mandal (respondent No. 14), stating that they were the natural guardians of their respective wards who were minor respondents in the court of appeal below and whose names had been expunged. A prayer was, therefore, made that the names of those minors under the guardianship of their respective natural guardians be added as party respondents to the appeal. This application was directed; to be put up for consideration at the time of the hearing of the appeal itself.
5. The appeal was heard in this Court by Ahmad, J., as he then was. Taking a sympathetic attitude towards the parties, in view of the oscillating conduct of the natural guardians, of the minors, his Lordship was pleased to remand the case to the lower appellate court for a fresh decision on a consideration of the argument which was advanced before him with reference to the provisions of law contained in Rules 4, 20 and 33 of Order XLI of the Code on the basis of the petition which was filed in this Court on the 9th December 1958. The direction given was-
In these circumstances, therefore, I think the case should be remanded to the lower appellate court for the consideration whether the law as provided in the aforesaid Rules 4, 20 and 33 of Order 41 of the Code of Civil Procedure, or any of them, is applicable to the facts of this case, and, if so, whether the aforesaid minors should be added as party respondents to the appeal, as prayed for in the application made in this, Court on the 9th December, 1958.
It was, further observed-
...It is also necessary to point out that, in case the lower appellate court comes to the conclusion that, in the interests of justice, it is just and proper that the minor defendants should be brought on record, then in that case, the appeal shall be heard de novo in the presence of all concerned, otherwise the minors may have a grievance left that they are not bound by the findings given by the lower appellate court at their back.
6. After remand, another learned Additional District Judge, Mr. S.C. Chakravarty, who came to deal with this appeal, added the minors aforesaid as party respondents to the appeal placing them under the pleader guardians ad litem by his order dated-the Ist May 1963. He has purported to do; so in exercise of his powers under Order XLI, Rule 20 or his inherent powers in accordance with Section 151 of the Code. Thereafter, he proceeded to hear the appeal afresh on merits. By his judgment and decree dated the 12th July 1963, he has allowed the appeal filed by the defendants first party holding that their case of previous partition was true and the plaintiffs' suit must fail on this account. In the alternative, he has also given a finding that, if the suit could be decreed, it could be decreed on the basis that there were four branches in the family of Labdhu Mandal and each branch had one-fourth share. The plaintiffs have filed the civil revision against the order dated the 1st May 1963 adding the minors as party respondents to the appeal and the second, appeal from the judgment and decree dated the 12th July 1963. Both have been heard together and this judgment will govern both of them.
7. I will take up the civil revision first. The argument put forward on behalf of the plaintiffs-petitioners is that, in view of the decision of the Privy Council in V.P.R.V. Chockalingam Cheity v. Seethai Ache A.I.R. 1927 P.C. 252 the Court of appeal below has committed an irregularity or illegality in exercise of its jurisdiction in addition the minor respondents as party to the appeal under Order XLI Rule 20 of the Code or in exercise of its inherent powers. This argument is refuted on be-half of the contesting defendants opposite party and it is contended that the Court could add, and has rightly added, the minor respondents as party to the appeal. On their behalf, reliance is placed upon the case of Notified Area Committee Buria v. Govind Ram Lachhman Dass , Suraj Prakasji Puri v. Sant Lall Singh A.I.R. 1940 Pat. 137, United Provinces v. Mt. Atiqa Begam A.I.R. 1941 F C. 16 and Alablai Vajsurbhai v. Bhura Bhava A.I.R. 1937 Bom. 401.
8. I may state at the outset that the court of appeal below has not exercised its powers either under Rule 4 or Rule 33 of Order XLI of the Code in varying the decree in favour of the minor respondents. On the facts and in the circumstances of this case, it is difficult to say as to which decree was in favour of the minors, whether the one passed by the trial court decreeing the plaintiffs' suit for partition or the one which has been passed by the lower appellate court dismissing their suit. The minors, of course, had no personal say in the matter. Their natural guardians had behaved as unscrupulous, persons. Neither they on their own behalf filed any appeal in the lower appellate court feeling aggrieved by the decree of the trial court nor was any appeal filed on behalf of the minors. The same is the position so far as they, are concerned in respect of the decree of the lower appellate court. None of them has come up to this Court feeling aggrieved by that decree. In Mt. Parwati Kuer v. Manna Lal Khetan , it was held? by a Full Bench of this Court that, if the name of one of the appellants has been struck out for failure to remove a technical defect and if the appeal proceeds to hearing at the instance of the other appellants, the decree can be varied in favour of that appellant also, under Order XLI, Rule 4 of the Code whose name has been struck out. For exercise of the powers under Order XLI, Rule 4, it may be so, although I may make a reference to the decision of the Supreme Court in Rameshwar Prasad v. Shambehari Lal Jagannath , where it has been held that, if the appeal of a deceased appellant had abated for non-substitution of his legal representative in time, the powers under Order XLI, Rule 4 of the Code could not be exercised in favour of the legal representative at the instance of the surviving appellants. I have made reference to these two decisions not because the question before me is one in relation to the exercise of the powers under Order XLI, Rule 4 of the Code but to emphasise the point that. Where due to the fault, latches, gross-negligence or a deliberate act of the appellants, the appeal becomes defective and some of the persons joined as parties to the appeal are expunged from the record, the Court of appeal can not bring those parties whose names had been expunged as party respondents to the appeal in exercise of the powers either under order XLI, Rule 20 of the Code or the inherent powers. To this extent, in my opinion, the ratio of the decision of the Privy Council in V.P.R.V. Chockalingam Chetty's case AIR 1927 P.C. 252 still holds the fields. The defendants first party who were the appellants in the lower appellate Court had filed their appeal against the minor respondents also. On their failure to deposit the guardians' cost, the names of the minor respondents were expunged. Not only that, when, during the hearing of the appeal, it was argued on behalf of the plaintiffs-respondents in the lower appellate Court that the appeal had become incompetent, they (the defendants first party appellants) took the stand by filing their petition on the 16th January 1956 that the minor respondents were not necessary parties to the appeal. In the lower appellate Court, at that point of time, they did not make any prayer for bringing them back as party respondents. The appeal failed as being incompetent. In this Court also, no prayer was made by the defendants appellants in Second Appeal No. 244 of 1956 to add the minor respondents as parties to the appeal. The natural guardians of the minor respondents were prevailed upon to file an application on the 9th December 1958 of the kind to which reference has been made by me earlier.
9. The attention of their Lordships who decided the case of Suraj Prakash Puri AIR 1940 Pat. 137 was not drawn to the decision of the Privy Council in V.P.R.V. Chockalingam Chetty's case AIR 1927 P.C. 252. On the special facts of that case, the High Court held that, under Order XLI, Rule 20 of the Code, it had power in second appeal to add as respondents to the appeal persons who were parties to the suit in the original court and who were not impleaded as respondents in the lower appellate court. In the case of the United Provinces A.I.R. 1941 F.C. 16, the question of adding the Govt. as a party arose under entirely different circumstances because the validity of an act was being challenged. In that connection. It was observed by Sulaiman, J. at page 28 column 2 that Order XLI, Rule 20 of the Code, no doubt, permits of making a person respondent, who was a party to the suit in the original Court, and who has not been made a party to the appeal, but is interested in the result of the appeal. This view, however, is not exclusive or exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances and which has been saved by Section 151 of the Code. The Bombay case, namely, Alabhai Vajsurbhai v. Bhura Bhava AIR 1937 Bom. 401 and many other cases including the case of V.P.R.V. Chockalingam Chetty AIR 1927 P.C. 252 were considered by the Full Bench of the Punjab High Court in the case of Notified Area Committee Buri . In that case, the Party left but from a suit was so left out because of a mistake which had cropped up in the certified copy of the decree of the lower appellate Court granted to the Committee. In that situation, the opinion was expressed that -
For the reasons given above, I am of the opinion that no inflexible rule of interpretation of the Words 'interested in the result of the appeal' as given in Order XLI, Rule 20, Civil Procedure Code, has been given by their Lordships of the Privy Council in V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 P.C. 252, ...and that it must be decided on the facts and circumstances of each particular case whether the person sought to be added in that case is one interested in the result of the appeal. The Privy Council case can not, at any rate, be taken to be an authority for the proposition that a party left out or not impleaded in appeal on account of bona fide mistake can not be so impleaded under the inherent powers of the Court, more especially when the error is on the part of the Court or its officials in supplying an erroneous copy either of the decree or of the Judgment.
Earlier in the Judgment, K.L. Gosain, J., delivering the Judgment; of the Full Bench, said at page 281, while dealing with the Privy Council decision in V.P.R.V. Chockalingam Chetty's case AIR 1927 P.C. 252, that -
There was no plea of any slip or omission or bona fide mistake.
In that case. At page 282, his Lordship took the help from the provisions of Section 5 of the Limitation Act to see as to whether a left out party could be added under Order XLI, Rule 20 of the Code. If I may say so with respect. I agree with the said line of approach adopted by K.L. Gosain, J. Finally, his Lordship observed at page 283, Column I that-
If the Court can allow extension of time for the purpose of filing a new appeal against a respondent who has acquired a valuable right by lapse of period of limitation for filing an appeal, it does not stand to reason that in an appeal already filed a respondent whose name has been omitted by a bona fide mistake from the array of parties can not be allowed to be added and the Court is powerless in this particular respect.
Applying the principle of law, therefore, laid down by the Full Bench of the Punjab High Court on which reliance was placed on behalf of the opposite Party, it is clear to me that, on the facts and in the circumstances of this case, the defendants first party who were appellants in the Court of appeal below could not have asked it to re-implead the minor respondents in the appeal by condoning the delay under Section 5 of the Limitation Act, as it was because of their failure to deposit the guardian's cost that their names had been expunged from the category of respondents. In such a situation, I for one can not subscribe to the view that the Court of appeal will be justified in adding the expunged parties as respondents to the appeal in exercise of its powers under Rule 20 of Order XLI of the code or in exercise of its inherent power which is not meant to bring about an abuse of the process of the Court but only to prevent it. I am, therefore, of the view that the learned Addl. Dist. Judge has committed an error in adding the minor respondents as parties to the title appeal filed by the defendants first party.
10. But the question is, on the special facts of this case can I say that he has committed an error of jurisdiction or that this is a fit case where I should upset the order of the court of appeal below in exercise of my revisional powers.? The prayer made in Second Appeal No. 244 of 1956 before Ahmad, J. for adding the minor respondents as parties to the appeal was not rejected outright in this Court, as on the view I have expressed, it could and should have been rejected. The case was remitted back to the Court of appeal below for a consideration of the prayer made in the petition filed in this Court on 9th December 1958. The changing roles of the natural guardians of the minor respondents inclined Ahmad, J. to remit the case back to the Court of Appeal below for a consideration as to whether the aforesaid minors should be added as party respondents to the appeal, and the learned Addl. District Judge, on remind, thought it fit in exercise of his powers under order XLI, Rule 20 or his inherent powers to add them as party respondents to the title appeal. In such a situation, I am unable to say that the learned Addl. District Judge has definitely committed an error of jurisdiction in adding the minor respondents as parties to the appeal. In any event, I do not feel persuaded to exercise any revisional powers to upset this orders for the reason that two Addl. District Judges hearing the appeal on merits have found as a fact in favour of the defaults first party and have held that their case of previous partition was true. In such a situation and on the special facts of the case, in my judgment, I do not think I shall be aiding justice by interfering, with the order dated, the 1st May 1963, made, by the Court of appeal be low adding the minor respondents as parties to the appeal and then maintaining, the dismissal of the title appeal, as being incompetent and thus maintaining the decree for partition made by the trial court.
11. In the second appeal, no argument of substance could be advanced on behalf of the plaintiffs-appellants. Having perused, the judgment of the trial court and the judgment of the lower appellate Court which is under appeal. I have come to the conclusion that not only there is no error of law in the latter judgment but it seems to be correct on facts also. As I have stated above, on facts, this was the view which had been taken by another Addl. District Judge, when he had dealt with the appeal on the earlier occasion. There were numerous family members in the family of Labdhu Mandal, belonging either to three or to four branches. The parties had been separately dealing with the properties since the year 1921. Defendant No. 22 who transferred nine bighas of dated in the year 1943 in the name of his son-in-law, one of the plaintiffs, had himself mortgaged some land out of the suit lands in the year 1932 claiming it to be the land in his separate and exclusive possession. The learned Addl. District Judge has rightly pointed out that the parties in the different branches fell out in or about the year 1943 in Order to claim more shares and get the partition reopened. With that end in view as many as three or four sale deeds were brought into existence near about the same time in the year 1943 and, thereafter, the present suit was filed in the year 1949 when the plaintiffs purchased about seven bighas of land from Gosain Mandal in the year 1948. That being so, I do not think that this litigation, which has a chequered history of about eighteen years, should be allowed to be prolonged either by remanding the case to the lower appellate Court, as was, argued on behalf of the plaintiffs-appellants, or, in exercise of my revisional powers, as I have stated above, by upsetting the order of the Court of appeal below adding the minors as party respondents to the appeal and then dismissing the title appeal of the defendents-first party as incompetent.
12. In the result, I dismiss both the second appeal and the Civil revision; but I shall make no order as to costs in either of them.