Khet Singh vs Pusau

Sanjay Yadav, J—Heard on admission.

This is defendant's second Appeal directed against judgment and decree dated 20.1.2005 passed by Third Additional District Judge, Damoh in Civil Appeal No. 21A/03, reversing the judgment and decree dated 31.3.2003 passed by Fourth Civil Judge Class II in Civil Suit No. 78A/01.

Plaintiffs brought an action for declaration of title and permanent injunction over the property bearing Khasra No. 32/2 (old)/173/1(New) admeasuring 1.36 hectare, Khasra No. 40(old)/181(New) admeasuring 1.30 hectare Mouza Gawari, Tehsil and District Damoh on the ground that the suit land which was part of family property and recorded in the name their father and Indrani Bahu wife of his brother Bahadur and that Indrani Bahu sold 1/3rd of her share to Hira Joja wife of Ratan Singh (mother of defendant No. 1) and Lachchi Bai wife of Ramdayal on 16.6.1971 which was purchased by the plaintiffs on 25.7.1973 and since then, they are in possession thereof and that defendants have no right, title and interest in the suit as would entitle them to create any hindrance and for permanent injunction.

Defendants No. 1 and 2 filed their separate written statement and denied the plaint allegation. Defendant No. 2 also took an objection as to non joinder of necessary party, the owner of land bearing Khasra No. 173/2 and that the suit was time barred.

Trial Court framed following issues:

While answering issue No. 7 against the plaintiffs, the trial Court observed that besides the defendants other progenies of Hirabai and Lachchibai were necessary parties, accordingly, non-suited the plaintiffs. The Appellate Court however, held it otherwise and reversed the finding that the suit was barred for non impleading of necessary parties by adverting to the provisions of Rule 3 and Rule 9 of order 1, Code of Civil Procedure, 1908 and taking into consideration the nature of relief sought, observing that -

Clause (a) of Rule 3 Order 1 CPC envisages that all persons may be joined in one suit as defendants where any right to relief in respect of or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative. Furthermore, Rule 9 of Order 1 CPC envisages, no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Proviso to Rule 9 stipulates that nothing in this rule shall apply to non-joinder of a necessary party.

In the case at hand, as evident from the evidence adverted to that, it was the defendant No. 1 who allegedly inherited the suit property and not other brothers, that being so, other brothers were not necessary party, therefore, the verdict by the trial Court has rightly been reversed.

The Appellate Court further found:-

On these findings, the plaintiffs'' suit has been decreed. And, though it is contended that the judgment suffers from perversity, however when the findings are meticulously tested on the material evidence on record, the findings cannot be faulted with.

There being no substantial question of law which arises for consideration, Appeal fails and is dismissed. No costs.