TIMA MALI Vs. KARTIKA MEHER

JUDGEMENT

(1.) Plaintiffs are the petitioners against a judgment of reversal in a suit for declaration of title and recovery of possession. The appellate Court has remanded the suit to the trial Court and, as such, this revision arises.

(2.) The case of the plaintiffs is that the suit lands belonged originally to one Ratnakar Panda. He surrendered, these lands to the Mafidar of Jharsuguda late Lal Haribansha Singh Deo by a surrender deed dated 21-2-1942, The Mafuidar settled these lands in favour of the plaintiffs by executing three documents of lease on 7-3-1942 and since then the plaintiffs have beea in possession of these lands. Thereafter the plaintiffs got these properties partitioned and they have perfected their title on the same. The defendant forcibly possessed these lands and amalgamated these lands with his own land and a proceeding under Section 145, Code of Criminal Procedure was started which ended in favour of the defendants. The defendant in his written statement has stated that he purchased Plots Nos. 4812 and 4813 from one Ghasi Kisan on 20-11-1946 and since then he has been in possession of those plots. Portions of R S. Plot 4814 adjoin Plot No. 4812. He improved and converted those portions into paddy land and amalgamated those lands with his own land since 1946. He denies plaintiffs to be in possession of the lands in any way and that the proceeding under Section 145, Cr. P. C. has been properly decided. The trial Court decreed the suit holding that the plaintiffs were in possession and they have been dispossessed. The lower appellate Court haa held that the suit suffers from mis-joinder of parties and, as such, is not maintainable. Therefore, an issue was framed about the mis-joinder of parties and the suit was remanded for fresh trial to the trial Court. As against that decision, the present civil revision has been filed.

(3.) In the plaint, plaintiffs have stated that there was a surrender of the lands by the original owner in favour of Maufidar. He settled these lands by deeds of lease on one day in favour of plaintiffs and since then the plaintiffs are in possession of those lands. The defendant in the written statement has stated that the suit is bad for multifariousness. The lower appellate Court has relied on the decision in Hadu Sahu v. State of Orissa, AIR 1964 Orissa 159 and has held that the suit is not maintainable. In that case twenty-eight plaintiffs who were in separate possession of different parcels of land forming part of a survey number and against whom an order of eviction had been passed under Section 7 of Orissa Act 15 of 1954 brought a suit against the State Government on the allegation that each of them had acquired prescriptive title by adverse possession to a portion of land in his exclusive possession. Each of the plaintiffs set up a claim to a parcel of land in which the other plaintiffs were not interested. It was held that the suit was bad for multifariousness. There was misjoinder of plaintiffs because each plaintiff had separately to prove his own possession for more than sixty years and there was no common question of fact or law involved. There was also misjoinder of causes of action because the order of eviction passed against one plaintiff did not serve as a cause of action against another plaintiff in respect of another land. In that case it was held by the lower Court that the oral evidence was not cogent to arrive at a conclusion that the plaintiffs have been using the suit lauds since more than sixty years. At any rate some of the plaintiffs might have acquired some such right and not all the plaintiffs and from the evidence of a few all cannot he benefited so as to get a decree in common. Basing on those findings the High Court held that the suit was bad for multifarifusness as one of the plaintiffs may be in possession for mare than sixty years and others might not have been and they were not interested in the lands of others. This Court also did not accept ihe decision cited before it, namely. Radharani Dasi v, Sukhdeb Bhattacharjee, AIR 1928 Cal 92 which lays down that subject to the control of the Court, persons can unite as plaintiffs though seeking individual reliefs in cases where the investigation would to a great extent be identical in each individual case and that the policy of the rule is to avoid needless expense where it. can be done without injustice to anyone and it carries out its object. Order 1, Rule 1 of the Civil P. C. provides that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions, is alleged to exist, whether jointly, severally or in the alternative where, if such persons brought separate suits, any common question of law or fact would arise. Section 90 of the Code of Civil Procedure provides that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court; provided nothing in this section shall apply to a non-joinder of necessary party. Basing on the aforesaid provisions, it is contended by the learned counsel for the petitioner that the decision of the lower appellate Court is wrong inasmuch as the plaintiffs have challenged it only in an order passed under Section 145 of the Criminal P. C. in which the possession of the defendant in respect of all these lands has been declared. The plaintiffs have got these lands settled by three separate documents but it was unblocked at that time and they possessed it. Subsequently they possessed separate portions and amicably divided the same. The defendant forcibly cm the ridge and amalgamated these lands with his own Jand. No in respect of ail the plaintiffs, there is one action of the defendant in that the defendant fres-passed into the lands of the plaintiffs by cutting the ridge and by amalgamating these lands with his own land. It is, therefore, contended that if each one of the plaintiffs would have brought a separate suit there would have been a common question of jaw and fact for decision in the suits, and, as such, it is covered by Order 1, Rule 1, Clause B of Civil P. C. Also the plaintiffs are jointlly interested against the same defendant having one cause of action against him and, as such, according to the provisions of Order 2, Rule 3, Civil P. C. the plaintiffs can file such a suit. It is further submitted that -he decision in the suit even if there would have been any defect or irregularity in the proceeding, does not affect the merits of she case or the jurisdiction of the Court and, as such, the provisions of Section 99 of Civil P. C. are complied with. It is further contended that the aforesaid decision in the case of Hadu Sahu (AIR 1964 Orissa 159) (supra) Section 99 of Civil P. C. was not taken into consideration in order to find out whether the decision in the suit affected the suits on merits or on the question of jurisdiction. It is contended by the learned counsel for the opposite parties that as the plaintiffs have claimed adverse possession so the principles laid down in Hadu Sahu's case are applicable. But from the plaint, it appears that the plaintiffs have title to the property by virtue of their possession from the date of the lease deed in their favour, namely, 7-3-1942. There was no issue about adverse possession of the plaintiffs. On the other hand, an issue has been framed as to whether ihe defendant has perfected his title by adverse possession.