HORILAL DUBEY Vs. KALIKA DUTT JHA

JUDGEMENT

(1.) This appeal is against an order of the trial Court dated 24.4.1990 granting temporary injunction under Order 39 Rules 1 and 2 C.P.C. against the present appellant restraining him from dispossessing the respondent-plaintiff from the house in suit.

(2.) The facts admitted between the parties are that in an execution of final decree-proceedings in a partition suit between the parties in Civil Suit No. 236-A/59, the present appellant in a court-auction held on 7.7.1979 purchased the suit house by offering highest bid of Rs. 20,600.00. A sale certificate was issued in his favour on 24.11.1982. The present respondent (plaintiff in this suit) raised an objection to the auction sale by claiming title in himself having been prescribed by adverse possession. The executing Court rejected that objection. It is thereafter that the objector brought this suit and obtained temporary injunction from the trial Court by the order under challenge in this appeal. The learned counsel appearing for the appellant-auction purchaser submits that there is no prima facie case made out in favour of the plaintiff of his having acquired title, by adverse possession and the suit filed against the auction-purchaser in execution of a decree is bad for nonjoinder of the judgment-debtors, who were necessary parties as per the provisions contained in Order 21 Rule 92 (sub-rule (4)) of the Civil Procedure Code, which read as under:-

(3.) Learned counsel appearing for the respondent-plaintiff was at pains to support the impugned order of temporary injunction. It was urged that even if there was any defect in the suit due to non-joinder of parties, the same can be cured by a suitable application under Order 1 Rules 1 and 10 C.P.C. It was also submitted that the respondent-plaintiff claimed independent title by adverse possession not against any individual; but against the whole world and, therefore, the judgment-debtors or the decree-holders were not necessary parties to the suit. Alternatively, it was submitted that in the written statement filed by the auction-purchaser in this suit, the plaintiff has been described as licensee. If that be so, only a symbolical possession could have been granted to the auction-purchaser on the basis of the sale-certificate in his favour and the plaintiff, even as licensee, has a right to protect his possession.