VIRENDRA TYAGI Vs. SAHU RADHEY SHYAM

JUDGEMENT

(1.) SAHU Ram, opposite party No. 1, claims to be the owner-occupier of the land known as Talab Jamurui Bali situate in village Chawani, Civil Lines, Moradabad. The applicant and opposite parties nos. 2, 3 and 4 are the owners-occupiers of the neighbouring land. They have allegedly encroached upon different portions of the aforesaid land of the opposite party no. 1. The encroachments are alleged to have been made in the months of February, March and April, 1966. Opposite party no. 1 (herein after called the plaintiff) filed a suit for mandatory injunction and possession against the applicant and opposite parties nos. 2, 3 and 4 (hereinafter called the defendants) in the Court of Additional Civil Judge, Moradabad. The defendants resisted she suit, inter alia, on the ground that it was barred on account of multifariousness. The trial court upheld the plea on the ground that there was no allegation in the plaint that there was collusion between the defendants Inter se in making the encroachments. Plaintiff applied for amendment which was allowed. He alleged collusion and participation between the defendants inter se. Defendants denied the allegation and contended that the suit was still bad for multifariousness. On consideration of evidence, the trial court found that there was no collusion between the defendants and again held that the suit was bad for multifariousness. The plaintiff filed a revision. The revision was heard by the Additional District Judge, Moradabad. He took the view that the objection about mis joinder had to be decided on the allegations made in the plaint and so viewed the suit was maintainable after the amendments and that, in any case, the requirement of order 1 rule 3 were fulfilled inasmuch as if separate suits were filed the common question would be whether the plaintiff had title over the land known as Talab Jamuna Bali. On this view he held that the suit was maintainable in its present form and reversed the decision of the trial court. Aggrieved by his order, one of the defendants has come up in revision to this Court. Under order I rule 3, C. P. C. all persons may be joined as defendants against whom a right of relief is alleged to exist if two conditions are satis fied:- 1. Such right arises in respect of the same Act or transaction or series of acts or transactions.

(2.) THE case is one where if separate suits were brought against the defendants any common question of fact or law would arise. Thus, there must be a common link or nexus between the acts of the defendants. To illustrate, if A, B and C jointly make an encroachment, there is a common link. On the other hand if A alone makes the encroachment but B and C conspired with him to bring about the encroachment, there is a nexus between the act of encroachment and the act of conspiracy. In either case, the relief is available against the defendants jointly or severally and if separate suits were brought against each of them, the common question of encroachment would arise. Whether there is a common link or nexus between acts of the defendants depends on the finding of the Court based on the facts and circumstances of each case and not on the allegations made in the plaint, as held by the learned Additional District Judge, In the present case, the trial court has considered the evidence and found that there was no common link or nexus between the acts of the defendants. Each defendant has made the encroachment independently of the other and that there has been collusion between them in bringing about the encroachments. THEre fore, on the principle stated above, all the defendants could not be joined in a single suit for removal of the encroachments. THE suit was bad for multifariousness. THE view to the contrary taken by the learned Additional District Judge is clearly erroneous and cannot be sustained. THE result is that this revision petition is allowed and the order of the learned Addl. District Judge is set aside. THE decision of the trial court dismissing the suit for multifariousness is restored. THEre shall be no order as to costs.