RAJABIBI AND OTHERS Vs. S. AMEERALI AND ANOTHER

JUDGEMENT

(1.) THIS is a second appeal by the legal representatives of the first defendant against the decree passed by the Civil Judge, Bangalore in R.A. 45 of 1969, reversing the decree passed by the Munsiff, Ramanagaram, in O.S. No. 171 of 1966. The first respondent -plaintiff instituted the suit for a declaration that he is the owner of the suit property and for permanent injunction or in the alternative for possession and for cancellation of the khata in respect of the suit site made by the second defendant in favour of the first defendant and for an appropriate direction to the Second defendant to change the khata of the suit in the name of the plaintiff. The case of the plaintiff is that the suit property belonged to one Syed Yedulla. He died in the year 1944. His further case is that on his death, his two sons Syed Yacoob and Syed Mohammed became the owners of the suit property and were in possession of the same. It is further averred that the said two brothers sold the suit property in favour of the plaintiff on the 15th of June, 1960. It is his further case that the second defendant the Municipality did not change the khata in spite of his request and maintained khata in the name of the first defendant. Though there is also a prayer for injunction, the prayer that was pressed by the plaintiff was the prayer for declaration of title and possession and not for a permanent injunction. The first defendant resisted the suit on various grounds. While admitting that Syed Yedulla was the original owner of the suit property, he contended that Syed Yedulla and his wife conveyed the suit property and another property in favour of one Syed Bakar on the 10th of August, 1942 and that the said Syed Bakar in turn sold the suit property to the first defendant on the 20th of June, 1954, under the sale Ext. D -1. The case of the first defendant is that he is in possession and enjoyment of the suit property ever since he purchased the same from Syed Bakar. The Court of first instance dismissed the suit of the plaintiff. On appeal, the learned Civil Judge has made a decree in favour of the plaintiff declaring that the plaintiff is the owner of the suit property and directing the first defendant to deliver possession along with mesne profits. He has directed enquiry regarding mesne profits under O. 20. R. 12(1)(c) of the Civil P.C. It is the said decree that is challenged by the legal representatives of the first defendant.

(2.) THE first contention that was urged by Shri Kadidal Manjappa, learned counsel appearing for the appellant, is that the suit is not maintainable in the absence of the other co -sharers. It has come in evidence that Syed Yedulla died in the year 1944 leaving behind him his widow, his two sons Syed Yacoob and Syed Mohammed and two daughters. The widow died a couple of years thereafter, leaving behind her two sons and two daughters. As Syed Yedulla was admittedly the owner of the suit property, on his death it is not only the two sons that could succeed to his estate. His wife as well as his two daughters would also become sharers. It is, therefore, clear that immediately after the death of Syed Yedulla not only his two sons but also his widow and two daughters have inherited the property as co -sharers. As for as these facts are concerned, they are not in challenge before me. The plaintiff has claimed exclusive title in himself to the suit property on the basis of the sale deed executed by Syed Mohammed and Syed Yacoob on the 15th of January, 1960. The plaintiff has not filed the suit for and on behalf of the other co -sharers. It is now the admitted position that the first defendant was in possession of the suit property on the date of suit. In view of these circumstances it was contended that the suit as now brought without impleading the other co -sharers is not maintainable. The Supreme Court has in Kanakarathanammal v. Loganath Mudaliar, : AIR 1965 SC 271 held that when there are other co -sharers in respect of the suit properties, the suit by one of the co -sharers alone without impleading the other co -sharers is not maintainable. Their Lordships held that as the other co -sharers are necessary parties to the suit, non -impleading of them is a fatal defect and that the provisions of Order 1, Rule 9, Civil P.C. do not save such a suit. The said decision was considered by this Court in Shivangouda v. Gangawwa, : (1966) 2 Mys LJ 148 : (AIR 1967 Mys 143). Justice Hegde (as he then was) held that a suit for ejecting a trespasser by one of the co -owners without impleading the other co -owners is maintainable and the decision of the Supreme Court in Kanakarathanammal's case : AIR 1965 SC 271 was distinguishable. His Lordship held that if a suit is brought by one of the co -sharers for ejectment against a trespasser, it would be maintainable without impleading the co -sharers as a party, provided the co -sharer who has instituted the suit has not repudiated the right of the other co -sharers but has claimed relief for the benefit of all the co -sharers. It, therefore, follows that if one of the co -sharers instituted a suit for ejection against a trespasser, repudiating the claim of the other co -sharers and claiming exclusive title in himself, such a suit would not be maintainable in the absence of the other co -sharers. It is because on the facts his Lordship Justice Hegde came to the conclusion that the suit in that case must be regarded as having been brought by the plaintiff without repudiating the rights of other co -sharers that it was held that the suit was maintainable. But, in the present case, the plaintiff has claimed exclusive title in himself and has brought the suit for a declaration that he is exclusive owner of the property and for possession, repudiating the claim of the other co -sharers. Hence, the dictum laid down by the Supreme Court in Kanakarathanammal's case : AIR 1965 SC 271 applies to the facts of the present case. I have, therefore, to hold that in the absence of the other co -sharers, the suit is not maintainable.