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Judgment
Jwala Parsad, J.—This appeal arises out of a decision of the District Judge of Muzafferpur, dated the 24th May 1919, reversing that of the Munsif, dated the 31st October 1918, and dismissing the suit of the plaintiffs.
The plaintiff No. 2 is the son of plaintiff No 1. The plaintiffs brought the suit for a declaration that the property in suit is Kashat of the joint family of the plaintiffs acquired by purchase under a kabala, dated the 10th March (sic)90 and that no right had accrued to the defendants in respect thereof. They also prayed for confirmation of possession with respect to the property in suit and, in the alternative, for recovery of the same in case they were found to be out of possession.
The kabala referred to above was executed on the 10th March 1890 by Mr. Zira Lal in the name of plaintiff No. 1, Gajindar Singh.
The facts alleged in the plaint, on the basis of which the plaintiffs'' reliefs were founded are that the plaintiffs'' father Bal Narain Singh purchased the property on behalf of the joint family of the plaintiffs in the name of plaintiff No. 1; that out of the consideration-money mentioned in the deed, prior debts over the property due to one Thakur Sahu, Jai Singh, husband of defendant No. 1, and others were satisfied and mortgages and the documents relating to the prior debts were recovered and were in possession of the plaintiffs; that since the date of the execution of the said kabala the property in suit has been in possession and occupation of the joint family of the plaintiffs; that at the Cadastral, and at the preliminary stage of the Revisional, Survey the name of, the wife of plaintiff No. 1, Phekan Kuer, was recorded, but on an objection u/s 103(a) of the Bengal Tenancy Act the name of the defendant No. 1 was directed to be entered in the Survey Record of Rights in respect of the land in suit.
Defendant No. 1, Akal Koer, is the wife of Jadu Singh and mother of the plaintiffs wife, Phekan Koer, defendant No. 2, Niras Koer, is the sister of Phekan Koer.
Their defence was that the land in suit was purchased by Jadu Singh, husband of defendant No. 1, from Zira Lal in the name of plaintiff No. 1; that the plaintiff No. 1 got possession of the sale deed by underhand means through his wife; that the defendants have all along been in possession of the lands, and that the plaintiffs had neither any concern with the land nor were they in possession thereof.
The Munsif held that the land in suit was purchased by Bal Narain for the joint family out of the joint family fund in the name of the plaintiff No. 1. He also held that the plaintiffs were all along in possession of the property sense the execution of the sale-deed in question and the defendants were never in possession of the property. Accordingly, he decreed the plaintiff''s suit, declared their title to the property and confirmed their possession.
On appeal by the defendants, the learned Judge discussed the evidence on both sides and preferred that of the plaintiffs. He agreed with the finding of the Munsif "that the documentary evidence...was much in favour of the plaintiff." He was further of opinion that "the oral evidence favoured the side of the plaintiffs and showed that the latter''s family has been in possession of the land throughout,"
The learned Judge has baaed his conclusions upon the possession of the sale-deed with the plaintiff, the endorsements on the prior mortgage-bonds showing that the money was paid by plaintiff No. 1, the purchaser of the land, and the recent rent-receipts produced by the plaintiff and the entry of Phekan Koer''s name in the Survey Record of Bights and the landlord''s therithta. These the learned Judge calls the strongest evidence on the plaintiff''s side and in this he is evidently right. The aforesaid conclusions arrived at by the learned Judge amount to findings of title and possession in favour of the plaintiffs and against the defendants.
The plaintiff was evidently, upon the findings, entitled to the reliefs claimed by him. But the learned Judge says unfortunately for the success of the plaintiff''s case, however, he has made in his deposition a completely new case as compared with the case set forth in the plaint." For this he has referred to his statement in cross-examination: "My wife purchased the disputed land with her private money" and says that as was the plaintiff''s case in the plaint the plaintiffs have to show that the land is their joint family property...and consequently they are not entitled to the declaration to the effect asked for with consequential relief of confirmation of possession." In this view the learned Judge is wrong.
The plaintiffs claimed two reliefs, viz., (i) for a declaration of their title based upon the sale-deed in question, and (2) for confirmation of possession. The learned Judge has evidently agreed with the finding of the Munsif that the plaintiffs were "all along in possession of the property since the execution of the sale-deed (Exhibit 1)", and upon this finding the plaintiffs are entitled to a decree for confirmation of their possession in accordance with the decision in Dehu Ghunya v. Srimati Barabihira Debi 38 Ind. Cas. 543 : 2 P.L.J. 15 by Chamier, C.J., who held that in a case of this kind, namely, where declarations as to the title and for confirmation or recovery of possession are claimed ''it was sufficient for the plaintiffs "to prove that they had held the lands for many years." The defendants have been held to have no title to or possession over the property in suit. They cannot, therefore, be permitted to challenge the possession of the plaintiffs, and, in order to safeguard against any trespass upon their possession, the plaintiffs are entitled to have their possession confirmed.
In the second place, assuming that the statement in the deposition of the plaintiff was true, that the land was purchased for the benefit of Phekan Koer and the sale-deed was executed in her husband''s name, the plaintiff No. 1, as held by the learned Judge, Phekan Koer died during the Revisional Survey Proceedings in 1900 and the plaintiffs continued to be in possession of the property. The plaintiff No. 1 being her husband and plaintiff No. 2 being her son, are heirs and as such have succeeded to the property. As held by Mullick, J., in the case of Bankey Behary Lal v. Bhagwandas Marwari 34 Ind. Cas. 897, the principle of estoppel by reason of inconsistent positions does not apply to a case of this kind and the plaintiff is entitled to apply the law to the facts established at the trial, even though he failed to prove what he came to prove. The case laid by the plaintiffs in the plaint was that they have title to the property under the sale deed as a joint family property of theirs and acquired by the father of plaintiff No. 1. If, upon the evidence, it is established that the plaintiffs have title to the land upon the death of Phekan Koer, the plaintiffs, upon the facts thus established in evidence, are entitled to the reliefs prayed for by them. It may be mentioned that the plaintiffs'' case in the plaint was that, after the death of the father of plaintiff No. 1, they are in possession and occupation of the properly. In the evidence the plaintiff has maintained it throughout that he has been in possession ever since the execution of the bond. In his examination-in-chief he clearly says: "The purchase was made in 1297 F.S. and I am in possession since that time. It was purchased in ray name and in the Cadastral Survey my life''s name was entered and her name was registered in the malik''s sariskta." Again, he says that, "at the time of attestation my son''s name was recorded in Survey as my wife died after kanapuri.... I am still in possession of the disputed land." In the cross-examination he has maintained his possession and I do not think that the solitary statement "my wife purchased the disputed land with her private money," referred to in the judgment of the Court below, will make the case of the plaintiff different from what his case has been on the question of possession. The learned Judge, to my mind, has misconceived the passage quoted by it from the plaintiff''s evidence and has violated the rule of construction that the evidence on the point should be judged from all the statements of the plaintiff taken as a whole, and not by a stray statement like the one that he has selected to base his conclusions on.
The relief claimed in the plaint is for a declaration of the right of the joint family of the plaintiffs Nos. 1 and 2, father and son. After the death of Phekan Koer the property did become the joint family property of both the plaintiffs. The fact that in the plaint the property was said to have been purchased out of the money of the father Balnarain, whereas in the deposition it is stated to have been purchased by the wife of plaintiff No. 1 out of her father''s money, does not materially alter the ease. So long as the property devolved upon the plaintiffs, whether by succession from the father or wife of plaintiff No. 1, it does not matter where the purchase-money came from. The Munsif has taken the same view as I do and has discussed it in detail in the judgment and has held that the statement in the deposition referred to by the Judge does not invalidate the claim for a declaration of title prayed for by the plaintiffs.
The learned Judge would also dismiss the plaintiff''s case on account of defeat of parties, on the ground that the plaintiff No. 1 admitted that he had another brother who was joint with him. Upon the view of the Judge, already referred to, that the purchase of the land in question was made out of the private money of Phekan Koer (wife of plaintiff No. 1) and that she was the real purchaser, the brother of plaintiff No. 1 had no interest in the property and was, therefore, not a necessary party. Even if he were joint with plaintiff No. 1 he did not inherit the property after the death of Phekan Koer. The property inherited by plaintiff No. 1 from his wife would be his self-acquired property under the Hindu Law, The learned Judge was, therefore, not right in throwing out the plaintiffs'' case upon the finding of the Munsif or upon the statement of the plaintiff No. 1 in his cross examination when he had rejected that case. If, on the other hand, the view taken by the Munsif that the property was purchased out of the joint family fund by Bal Narain, father of plaintiff No. 1, for the benefit of the joint family of the plaintiffs, be accepted, then also the suit cannot be dismissed for defect of parties. The Munsif himself refused to dismiss the suit on this technical ground and, as a matter of fast, decreed the plaintiff''s suit. In this he was perfectly right, for Order I, Rule 9 distinctly lays down that, "So suit shall be defeated by reason of the misjoinder or non-joinder of parties." If the learned Judge on appeal by the defendants was of opinion, which evidently would be inconsistent with his finding that the property was of the wife of plaintiff No. 1, that the suit could not be decided without Jokhu Singh being a party to it, he had full power to bring him on the record under Order I, Rule 10, Clause (2). Under this rule the Court may at any stage of the proceedings of its own motion make any one a party whose presence the Court may consider to be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. In the present case the claim of the plaintiffs would have been well within time even if Jokhu Singh was brought on the record on the 24th May 1919 when the learned District Judge passed his decision, and will be still in time if he is now brought on the record, for the plaintiffs have been held to be in possession all along ever since the execution of the sale-deed, the Settlement Record also had recorded the name of Phekan Koer as being in possession, I do not think that the cases relied upon by the Courts below, Romesh Chandra Mandal v. Bhuyan Bhaikar Mahapatra 39 Ind Cas. 225 : 1 P.L.W. 346 and Bhagela Kuer v. Abdul Rahman 40 Ind. Cas. 79 : 1 P.L.J. 472n, apply to the present case. The latter related to the mortgage-suit in which, under Order XXX(sic), Rule 1 of the Code of Civil Procedure, every person interested in the property must be made a party. It is conceded that there is no similar provision in the CPC applying to other kinds of suits. The point did not directly arise in the case of Romesh Chandra Mandal v. Bhuyan Bhaskar Mahapatra 39 Ind Cas. 225 : 1 P.L.W. 346 inasmuch as it was held in that case that there was no defeat of party and the placitum in the report has given undue weight to the solitary passage occurring in the body of the judgment.
Now, as to whether the plaintiffs were bound to join Jokhu Singh as a party to the suit. He never in the plaint or any where admitted that he had any interest in the property or that he was in possession of the same. Unless this was the plaintiffs'' case, they were not bound to make him party to the suit. Order I, Rule 1, is clear on the point that, in order to be joined as a plaintiff, there must be a right to relief in respect of or arising out of the same act or transaction whether jointly or severally, If the plaintiff''s case is that Jokhu Singh, his brother, had no right to relief in respect of the property in suit, he was not a necessary party. Under Rule 3 of Order I, a person against whom any right to relief in respect of or arising out of the same act or transaction is alleged to exist, may be joined as a defendant. Jokhu Singh was not said to have interfered with the plaintiffs'' possession in any way nor to have any interest in the property. He was therefore, not a necessary party either as a plaintiff or as a defendant according to the case of the plaintiffs.
There is no express provision in the CPC as to who should be considered necessary parties or that every person interested in the property must necessarily be made a party. It is said, however, that the case must be governed by the principle in Order II, Rule 1, where it is said that, "Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them." That rule, obviously, does not deal with the persons to be made parties, but only requires that all matters in dispute between the parties to the suit must be comprised in it so far as possible in order that they may be disposed of in the same suit. The principle upon which the parties are to be made has been discussed in the case of Jogendra Nath Singh v. Secretary of State for India 17 Ind. Cas. 921 : 17 C.W.N. 835 : 16 C.L.J. 385. That decision is based upon the following passage in Story''s Equity Pleadings: "it is not possible to formulate precise rules of universal application to the joinder of parties, and the only principle which can be safety adopted is that all persons materially interested in the suit or in the subject of the suit should be made parties.... In each case it must be determined whether a particular person is or is not a necessary party, i.e., necessary for the determination of the question raised by the plaintiff and for the grant of the relief he claims. It may be laid down, however, as a general rule, that a person who is only indirectly or remotely interested is not a necessary party."
According to the plaint, the only persons interested were the plaintiffs Nos. 1 and 2, as the property was purchased by the plaintiffs'' father for the joint family of the plaintiffs and hence, upon the plaint, Jokhu Singh was not a necessary party. The plaintiff No. 1 made the following statement in cross-examination: "Jokhu Singh, my brother, is separate from me since 15 or 16 years. Our lands are still ijmal and we are separate in mess only. My father was the karta of the family so long as he was alive." Upon this evidence the Munsif held that Jokhu Singh was a necessary party to the suit as he has got a share in the land, but the aforesaid statement does not necessarily lead to this conclusion, for, according to it, Jokhu Singh has been separate for the last 15 or 16 years. They may have some land in ijtnal, but the land in dispute which is based upon the purchase in the name of Phekan Koer, has not been clearly specified to be held joint with Jokhu Singh. In order to apply the bar of defeat of parties, the defendants would have pushed the cross-examination further and made out a clear case that Jokhu Singh had an interest in the land in suit and was holding it jointly with the plaintiffs in spite of his separation from the plaintiffs'' family 15 or 16 years ago. No other evidence has been referred to by the Munsif or the learned Judge for the finding that Jokhu Singh bad a share in the land and was jointly interested in it, and the evidence of the plaintiff referred to above does not lead to this conclusion. The finding is, therefore, illegal.
Accepting, for the sake of argument, the finding to be valid, I think Chat "the matter in controversy so far as regards the rights and interests of the parties actually before it (Court) could be well dealt with and decided" within the terms of Order 1, Rule 9. Jokhu Singh, not being a party to the suit, is not affected by the decision of the case if be has any interest in the property, in dispute. The defendants having neither title nor possession cannot be permitted to defeat the claim of the plaintiffs for a declaration of title and confirmation of possession. So far as the parties to the suit are concerned, the absence of Jokhu Singh does not affect the determination of the rights of the parties actually before the Court, and the Munsif apparently did not consider it necessary that he should be before the Court in order to enable him "to effectually and completely adjudicate upon and settle all Questions involved in the suit," which is a condition precedent for insisting upon Bringing Jokhu Singh upon the record, as laid down by Order I, Rule 10(2). I agree with the Munsif that the plaintiff''s suit can not be thrown out because Jokhu Singh is not a party to it.
In the result, the decision of the learned District Judge is set aside and that of the Munsif is restored. The appeal, is decreed and the plaintiffs'' suit is decreed with costs throughout.