RANBIR SINGH Vs. BATAIYA

JUDGEMENT

(1.) This appeal has been referred to this Bench by a learned Single Judge of this Court which arises out of a suit filed by the five plaintiffs for ejectment, and possession over a grove alleging that the defendants were trespassers. The suit was contested by the defendants on the ground that the plot was not a grove of the plaintiffs and the plaintiffs, therefore, had no right in it. The trial court dismissed the suit with costs. Out of the five plaintiffs, only one Ranbir Singh filed an appeal in the court below which was heard by the Temporary Civil Judge of Orai. The court below took the view that since the suit had been filed by five of the plaintiffs, and their interest was not separable, only one of the plaintiffs was incompetent to file an appeal and dismissed the appeal on that ground. Ranbir Singh has consequently filed this Second Appeal and the contention of the learned counsel for the appellant is that the court below was wrong in dismissing the appeal on that preliminary ground. The contention is that it is not necessary to implead all the plaintiffs in appeal like this and the court has ample power under Order 41, Rule 4 C. P. C. to reverse the decree in favour of all the plaintiffs.

(2.) Before entering upon the discussion of legal questions, learned counsel for the respondents raised a question of interpretation of the plaint. His contention was that although throughout the body of the plaint, the claim of all the five plaintiffs was that they were owners of the grove but in the relief sought the first prayer is that possession of the property be granted in favour of the plaintiff (muddai). The argument of the learned counsel is that in this plaint there was no joint relief claimed in favour of all the plaintiffs, We are unable to agree with this contention. This plaint was filed on a printed paper. In the body of the plaint at several places the singular word "muddai" has been cut out and in its place plural word "muddaiyan" has been substituted. It appears that in the relief it has been left out by some mistake. There is no allegation in the body of the plaint that only one of the plaintiffs, and which of them, is entitled to possession of the whole property. We are, therefore, satisfied that the statement of the case by the lower appellate court that all the plaintiffs claimed to be joint owners and claimed possession of the plot is correct.

(3.) The next contention is an important point in the case on account of which the case has been referred to a Division Bench. The learned single Judge thought that there was a conflict of opinion in this Court and in the other High Courts on the point whether an appellate court can grant a decree in favour of all the plaintiffs or defendants even though all the plaintiffs or defendants had not appealed and non-appealing plaintiffs or defendants had not been made parties to the appeal. Before the learned single Judge, two cases were relied upon on behalf of the appellant, Mahamangal Rai v. Kishun Kandu, AIR 1927 All 311 and Parmeshri Kunwar v. Dhuman Kunwar, AIR 1929 All 393. Both these are single Judge decisions of this Court and it has been clearly held in these cases that the words of Order 41, Rule 4 C. P. C. are quite clear and they authorise the appellate , court to pass a decree in favour of all the plaintiffs or defendants even though some of them have not appealed and are not parties to the appeal. As against this Balkaran v. Malik Namdar, AIR 1924 All. 873 and the case of Nanak v. Ahmad Ali, AIR 1946 Lah 399 (FB), wore cited for the proposition that it was essential that the non-appealing plaintiffs or defendants were also made parties and unless they were before the court the appellate court was powerless to pass a decree in their favour,