Kesar Chand vs Mukandi Ram and Others

S.P. Goyal, J.—This second appeal is directed against the judgment and decree of the learned District Judge, Patiala, dated December 8, 1979 whereby the judgment of the trial Court was reversed and the suit dismissed.

The Plaintiff-Appellant filed this suit for partition of the property in dispute. The suit was contested on a number or grounds and one of the plea raised was that the same was bad for non-joinder of the necessary parties. The trial Court negatived all the pleas of the defence and granted a preliminary decree. The learned District Judge reversed that judgment on the issue of non-joinder of the necessary parties and dismissed the suit with the finding that the staircase was admittedly joint with the Rice and Oil Mills and that according to the copy of the report of the Commissioner, Exhibit D-4, a part of the property was also in possession of the said Mills. However, on the said finding the suit could not be dismissed for non-joinder of the necessary parties. No doubt, the Rice & Oil Mills is shown to be the joint owner of the staircase but that part of the property is not liable to be partitioned. As regards the report of the Commissioner, Exhibit D-4, which was made in some prior litigation, some part of the vacant site in dispute was stated to be in. illegal possession of the Rice & Oil Mills but because of that reason it cannot be said that the Rice & Oil Mills is a co-sharer in the property in dispute who can alone be necessary party. The learned District Judge, therefore, erred in law in reversing the finding of the trial Court on the issue of non-joinder of necessary parties.

Before parting with the judgment, I feel it necessary to record that from the plea taken in the written statement regarding the non-joinder of the necessary parties no issue should have been framed by the trial Court. There is only a bald averment in the additional objection that the suit is bad for non-joinder of necessary parties. The trial Court ought to have directed the Defendant to plead necessary facts in support of this objection and in the absence of the same, no notice of this plea should have been taken. Similarly, the objection regarding the framing of the suit in the present form and estoppel are not supported by any facts. Such like pleas are now generally found in the written statement and issues are framed covering those pleas even when the necessary facts constituting the pleas have not been pleaded in the written statement. The trial Courts, therefore, should be vigilant and refuse to frame issues on such like pleas unless the necessary facts in support thereof are pleaded in the written statement.

For the reasons recorded above, this appeal is allowed with costs and the judgment and decree of the learned District Judge set aside. As the learned District Judge has not decided the remaining issues, this case will now go back to him for disposal in accordance with law. The parties, through their counsel, have been directed to appear in the lower appellate Court on October 17, 1980.