LAXMINARAIN MULCHAND KOTHARI Vs. VITHALDAS KANHAIYALAL

JUDGEMENT

(1.) THIS second appeal arises out of a suit for declaration of title and possession in respect of a Bagichi (consisting of some structure and open land ). It was alleged in the plaint that this suit property together with other properties was mortgaged with the plaintiff's ancestors on May 16, 1925. The plaintiff's father resided in bombay. His Munim Vithaldas Kothavi looked after his business at Khilchipur where the suit property is situate. The munim temporarily permitted some persons (not named in the plaint, nor made parties) to use the suit property for recreation. The plaintiffs father died on December 8, 1951, and the munim predeceased him. When the plaintiff came to Khilchipur he found the 18 defendants in possession of the suit premises. The plaintiff nor his ancestors had ever permitted any individual or corporation or institution but had given permission only to particular persons and after they ceased to exist, the permission also determined. The defendants' possession was alleged to be that of trespassers.

(2.) THE suit was dismissed by the trial Judge on two grounds. It was held that the suit was bad for non-joinder of necessary parties. Secondly, the suit was barred by limitation. The first appellate Court upheld the judgment and decree of the trial judge on both these grounds.

(3.) IT is contended by Shri Patankar that this suit was based on the specific allegation that the 18 persons (defendants) were in wrongful possession and decree against them was claimed. As such it was unnecessary to add any other person as defendant. In my opinion, this contention must be accepted. The contesting defendants, it is admitted by Shri Inamdar, did not give the names of any other person as being in possession of the suit premises. The objection was vaguely raised in the written statement. It is a different question whether a decree, if passed in favour of the plaintiff against the defendants, would be effective or not in the absence of any other person or persons who may be in possession. Shri Inamdar's argument is that on the suit premises a recreation club is being run and unless all the members of that club were made parties to the suit, no effective decree could be passed. It is true that a club is not a legal entity, unless it is incorporated or is a registered society. But here it is not known whether in fact there are any members other than the defendants. The suit, therefore, cannot be held to be bad for non-joinder of necessary parties.