TELU Vs. KURDIA

JUDGEMENT

(1.) Surta and others filed a suit under Order 1, Rule 8 of the Civil Procedure Code (for short 'the Code') on their own behalf and behalf of other proprietors of Khewat No. 63 Patti Lohriwal of village Batta, tehsil Narwana, district Jind for declaration that they were entitled to claim partition of the joint land in the aforesaid Patti on the basis of holding of each proprietor in the village, known as Hasab Rasad Khewat, against Kurdia and 5 other named persons on their own behalf and on behalf of other proprietors of Khewat No. 63, Patti Lohriwal who wanted partition of the joint land of the Patti on the basis of their possession of the land in dispute. The trial Court gave permission to the named plaintiffs as also to the named defendants to represent the suit in their representative capacity. After proclamation was made, the case proceeded on merits. The six named defendants only appeared in response to the proclamation made and no other person came forward from the village to join the suit as plaintiff or as defendant. The six defendants filed written statement and contested the suit on merits and disputed the plaintiffs' plea for partition on the basis of ownership and came forward with the plea that they are entitled to partition on the basis of their respective possession of the land in dispute of which they were in possession since the time of their fore father. They also claimed adverse possession and pleaded that the plaintiffs were no longer co-sharers in the land in dispute. On the contest of the parties, several issues were framed. On consideration of the evidence in the case, the trial Court by a well considered judgment dated 29.10.1984 decreed the suit for declaration that the land in dispute measuring 7883 bighas 5 biswas comprised in Khewat No. 63 Khata Nos. 270 to 433, shown in the Jamabandi for the year 1959-60, situated in Patti Lohriwal in the revenue estate of village Batta could be got partitioned by the plaintiffs who are co-sharers in the column of ownership in the Jamabandi and they were entitled to have possession of their share after getting it partitioned. Various pleas raised by the defendants were negatived. The six named defendants went up in appeal before the District Judge. The learned Additional District Judge, before whom the appeal came up for consideration, without adverting to the merits of the case, proceeded to decide the appeal on a technical point which was neither raised before the trial Court at any stage till decision nor in the grounds of appeal filed before the District Court. The learned Additional District Judge proceeded to hold that proper proclamation was not made in the village regarding the proprietors in the village under Order 1 Rule 8 of the Code which was mandatory provision and on the basis of certain decisions cited before him, allowed the appeal and after setting aside the judgment and decree of the trial Court remanded the case to the trial Court for fresh trial in accordance with law after effecting proper service on the persons interested in the suit land. This is second appeal of the plaintiffs against the aforesaid order.

(2.) The suit was filed way-back in December, 1982. More than 5 years have passed so far and no co-sharer from the Patti in dispute has come forward to take part in the proceedings except the six named defendants who are impleaded in the suit. The six defendants were in possession of the joint land of the Patti much beyond their share and that is why they were objecting to the partition of the joint land on the basis of their ownership in the village and for that reason they were impleaded as defendants by name and the suit was filed in the representative capacity so that if any other co-sharer wanted to come forward and join the proceedings as plaintiff or defendants could do so. These defendants contested the suit on merits and failed in the trial Court. During trial, they did not bring any evidence or stated if the proclamation made in the village for service of the other co-sharers was either not made or was improper. Nor it was shown if any prejudice was likely to be caused to any other co-sharer and who was that co-sharer. Not only this, when they went up in appeal before the District Court, no such averment was made even in the grounds of appeal.

(3.) With this back-ground it has to be seen whether factual data considered by the lower Appellate Court regarding proclamation was correct or not and whether on the peculiar facts of this case, the six named defendants who are appellants before the District Judge could be allowed to raise this point.