Patna High Court
Ramautar Singh And Ors. vs Ramsewak Lal And Ors. on 27 February, 1950
Equivalent citations: AIR1951PAT352, AIR 1951 PATNA 352
JUDGMENT Ramaswami, J.
1. The question which arises for decision in this case is whether defendants 2 to 4 are necessary parties in the suit brought by the plaintiffs for redemption of the land in dispute.
2. For the plaintiffs it was alleged that his ancestor had on 15-3-17 executed a rehan deed in favour of the father of defendant 1, for a sum of Rs. 50 with respect to 15 bighas 4 kathas 11 dhurs of land. A few months later defendant 1 executed a Bazidawa in favour of defendant party 2 treating the land as bakasht. The plaintiffs deposited the rehan money under Section 83, 'T. P. Act. After due service of notice on defendant party 1, they instituted a suit for redemption of the land. Defendant party 2 was impleaded on the ground that he interfered with the possession of the plaintiffs. The learned Munsif overruled the objection of the defendant party 2 and held that they were necessary parties for the decision of the suit.
3. In support of the rule Mr. Lalnarain Sinha referred to the principle that in a suit for redemption, paramount title ought not to be normally drawn into controversy without the consent of the parties. It was pointed out that in the present case paramount title was in conflict with the title of the mortgagor as well as the mortgagee. For the opposite party reference was made to Zakirraza v. Madhusudan Dass, A.I.R. (5) 1918 Pat. 356 : (45 I.C. 691) and Khub Lal v. Jhapsi Kundu, A. I. R. (11) 1924 Pat. 613 : (3 Pat. 244). But these cases must be distinguished for they proceeded upon the ground that the defendants who had set up paramount title appeared and contested the allegation set out in the plaint, that issues had been framed with their concurrence and so they could not afterwards object that the issues ought not to have been litigated, since they have already acquiesced in that course. In the present case, however, it is of importance to observe that the applicants as soon as they appeared in Court objected that the issue as to paramount title ought not to be tried and they should be struck off from the action. In the present case, therefore, I am of opinion that the learned Munsif was wrong to hold that the applicants were necessary parties but ought to have struck their names from the suit. This view is supported by Loknath Singh v. Santokhi Missir, 7 P.L.T. 737 : (A.I.R. (14) 1927 (Pat. 45 : 27 Cr. L.J. 1240) in which the High Court interfered in a second appeal and dismissed the suit against the defendants who set up a paramount title but whose objection was not entertained by the lower Courts. The principle is laid down in Jaggeswar Butt v. Bhuban Mohan, 33 Cal. 425 : (3 C.L.J. 205) in which Ashutosh Mookerjee J. restated the ordinary rule that a plaintiff mortgagee cannot be allowed to frame his suit as to draw into controversy the title "of a third party, who is in no way connected with the mortgage and who has set up a title paramount to that of the mortgagor and mortgagee. It was observed that the rule was not one of convenience merely and the fact of the question of such title being determined by the Court of first instance in breach of the rule did not preclude a Court of appeal from reversing the decree.
"The interpretation which we put upon Section 85, leads necessarily to the conclusion that the proper scope of a mortgage suit is to cut off the equity of redemption and to bar the rights of the mortgagor and those claiming under him ; the only proper parties to such a suit are the mortgagor and the mortgagee and those who have acquired interest under them subsequent to the mortgage. It is not competent for the mortgagee to make as party defendant, one who claims adversely to the title of the mortgagor and mortgagee. He is a stranger to the mortgagee, has no connection with the mortgage, and as his adverse claim of title cannot in any way be affected by the mortgage suit in which he has no interest, he cannot be made a party for the purpose of litigating such claim of title."
Reference should also be made to Rameshwar Rai v. Harakh Lal, 20 Pat. 841 : (A.I.R. (29) 1942 Pat. 226) in which the learned Judges after examining a number of authorities deduced the general rule that in a mortgage suit paramount title ought not ordinarily be drawn into controversy without the assent of the parties.
4. For the opposite party it was, however, objected that the question of misjoinder of parties or of causes of action is not a question of jurisdiction with which the High Court ought to interfere. This argument is not in my opinion untenable. It is true that High Court will not be justified in interfering on the sole ground that the trial Court has made a mistake in law. But here I think that it has done more than that. For it has entirely misunderstood the nature of the judicial discretion which it is called upon to exercise. In Velappa Nadar v. Chidambara Nadar, 43 M.L.J. 277 : (A.I.R. (9) 1922 Mad. 174) Venkatasubba Rao J. held that a decision, on an issue in a suit to the effect that the suit is not bad for misjoinder of parties and causes of action is subject to the revisional jurisdiction of the High Court under Section 115, Civil P.C. The learned Judge reached the conclusion after examining a number of authorities.
5. In my opinion this rule must be made absolute and defendants 2 to 4 should be struck off from the suit as not being necessary parties thereto. The application is allowed. There will be no order as to costs.
Narayan, J.
6. I agree.