SHIVJI Vs. HIRALAL

JUDGEMENT

(1.) This is defendants' 2nd appeal arising out of a suit for possession of certain parcel of agricultural land situated at village Rasawa, Tehsil Kuk-shi. The plaintiffs' case in brief was that the suit land had fallen to the share of the plaintiffs in a partition effected between them and the other members of their joint family that the suit filed by the defendants for declaration of their rights in the suit land as occupancy tenants was dismissed and that the dismissal of the suit was upheld by the High Court in Civil Second Appeal No. 262 of 1967 decided on 22-9-1970. The plaintiffs. therefore contended that the defendants were in illegal possession of the suit land and they therefore claimed possession of the suit land from the defendants. The suit was resisted by the defendants inter alia on the ground that the suit was bad for non-joinder of necessary parties. It was contended by the defendants that other co-sharers who were recorded as 'Bhumiswamis' of the suit land were not made parties to the suit and hence the suit deserved to be dismissed for nonjoinder of necessary parties. Based on this plea a preliminary issue was framed. The trial court held that the case of the plaintiffs was that they had acquired title if the suit land by virtue of a partition effected between the plaintiffs and other co-sharers that the suit instituted by the plaintiffs was not for declaration of their title to the suit land but was for recovery of possession from the defendants who were alleged to be trespassers. The trial court therefore held that other co-sharers wore not necessary parties and the suit was not liable to be dismissed for their non-joinder. On merits the trial court held that the defendants were trespassers and liable to be evicted from the suit land. In this view of the matter the trial court decreed the plaintiffs' suit. On appeal the judgment and decree passed by the trial court were upheld. Hence the defendants have filed this second appeal

(2.) The only question raised in this second appeal by Shri Sanghi learned counsel for the appellants was that the Courts below had erred in not dismissing the suit on the ground of non-joinder of necessary parties. It was urged that the partition alleged to have been effected by the plaintiffs between themselves and other co-sharers was not valid as it was contrary to the provisions of the Land Revenue and Tenancy Act then in force and that failure to implead other co-sharers by the plaintiffs was fatal to the suit. Reliance was placed on the decision of the Supreme Court reported in Kanakarathanammal v. V. S. Loganath Mudaliar, AIR 1965 SC 27l and in As-wini Kumar Roy v. Kshitish Chandra Sen Gupta, AIR 1971 Cal 252. In reply Shri Chaphekar learned counsel for the respondents contended that the suit land had fallen to the shares of the plaintiffs in a partition effected between them and the other co-sharers and that in any event a suit filed by some co-owners against a trespasser for eviction nonjoinder of other co-owners was not fatal to the suit. Reliance was placed on a decision oi' the Mysore High Court in Shivangouda Lingangouda v. Gangawwa Basappa, AlR 3967. Mys 143 and in Ram Niranjan Das v. Loknath Mandal, AIR 1970 Pat 1 (FB).

(3.) The short question that arises for consideration in this appeal is whether the plaintiffs' suit can be held to be non-maintainable for non-joinder of necessary parties. It was not disputed before me that in the suit instituted by the defendants against the plaintiffs and their brothers it was held by this Court in Civil Second Appeal No. 262 of 1967 that the defendants were trespassers and had not acquired any right, title to or interest in the suit land. The plaintiffs who are admittedly recorded as 'Bhumiswamis of the suit land along with their brothers have instituted the present suit against the defendants who are admittedly trespassers for possession of the suit land. The plaintiffs alleged that in a partition effected between them and their brothers the suit land had fallen to-their share. It; was urged that this private partition was not in accordance with the provisions of the Land Revenue and Tenancy Act then in force. Even assuming that the partition was not valid as urged on behali of the defendants the question for consideration is whether a- suit filed by some of the co-owners against a trespasser for eviction is liable to be dismissed for nonjoinder 'of other co-owners. In AIR 1970 Pat 1 (supra) a Full Bench of the patna High Court had occasion to consider, this question. It was held, after referring to a number of decisions that all those decisions unambiguously laid down that a suit" by a cosharer was competent if he sired for recovery of possession of Jand which was owned by him jointly with others even without impleading the other co-sharers. It was further observed as follows :