DALBIR SINGH Vs. LAKHI RAM

JUDGEMENT

(1.) This revision petition has been filed by Dalbir Singh, plaintiff and Smt. Premwati, Brij Raj Singh and Dharampal Singh, defendants Nos. 23 to 25, respectively, against the order for the Subordinate Judge 1st Class, Ballabgarh, dated 29th Dec., 1975 vide which the application under O. 1, R. 10, Civil P.C., filed by defendants Nos. 23 to 25, has been dismissed.

(2.) Defendants Nos. 23 to 25, namely, Smt. Premwati, Brij Raj Singh and Dharampal Singh, filed an application under O. 1, R. 10, Civil P.C. for transposing them as co-plaintiffs. A suit for possession is pending between the parties in the trial Court on the basis of some earlier decree. It may briefly be stated here that one Samran Singh, father of defendants Nos. 23 and 24 and grandfather of defendant No. 25, the present petitioners, was the owner of the agricultural land, which is the subject-matter of the suit. The petitioners are the heirs of said Samran Singh. Said Samran Singh had mortgaged the suit land with Shiv Singh in lieu of Rs. 1,500/- without any legal necessity as per mutation No. 64, dated 28th Sept. 1934. Later on, he sold the suit land to defendants Nos. 1 to 22 or their predecessors-in-interest in lieu of Rupees 2,500/-, as per registered sale deed dated 3rd June, 1937 without any legal necessity. Dalbir Singh, plaintiff-petitioner, had challenged the mortgage and the sale in Civil Suit No. 84 of 1944 entitled "Dalbir Singh v. Samran Singh" and that suit was decreed in his favour on 12th Feb. 1945. In that suit it was held that the sale shall not take effect after the death of Samran Singh. It was also directed that the plaintiff shall be entitled to the possession of the land in dispute after the death of Samran Singh, on payment of Rupees 2,500/- to defendants Nos. 1 to 22. It was further ordered that the plaintiff shall deposit Rs. 1,500/- for payment to Shiv Singh, mortgagee and then he shall be entitled to possession of the land after the death of Samran Singh on payment of Rs. 4,000/- in all. Samran Singh died on 29th July, 1971 and defendants Nos. 1 to 22 got the suit land redeemed from Shiv Singh vide mutation No. 50. Thus Dalbir Singh, plaintiff-petitioner, brought a suit for the possession of the suit land on payment of Rs. 4,000/- to defendants Nos. 1 to 22, who are respondents in the present petition. Defendants Nos. 23 to 25, the present petitioners, were also made defendants in the present suit and it was mentioned in the plaint that they had partitioned the joint property and the suit property had fallen to the share of Dalbir Singh, plaintiff-petitioner, alone. During the pendency of the suit the present application under O. 1, R. 10, Civil P.C. was made be transposed as co-plaintiffs. The plaintiff Dalbir Singh has not raised any objection to their transposition as co-plaintiffs. It is settled law that where the plaintiff does not oppose the application of any of the defendants for transposition as co-plaintiff, the courts shall allow such applications for transposition. Even otherwise, to avoid multiplicity of the litigation the courts can suo motu allow such transposition. In a case where the defendant can separately file similar suit it is always advisable that the courts may make him as co-plaintiff, even if no application for transposition is filed. The learned Subordinate Judge has dismissed the application of defendants Nos. 23 to 25 on the sole ground that if the application for transposing defendants 23 to 25 as co-plaintiffs is allowed it would bring a clash between the plaintiffs inter se. This could be a ground for rejection of the application if the plaintiff had opposed it. But since the plaintiff has not opposed the transposition of defendants Nos. 23 to 25 as co-plaintiffs, therefore, it can hardly be a ground to reject the application of defendants Nos. 23 to 25. The view I am taking is supported by Bhupendra Narayan Sinha Bahadur v. Rajeswar Prosad Bhakat, AIR 1931 PC 162; Monghi Bai v. Cooverji Umersey, AIR 1939 PC 170 and R. S. Maddanappa v. Chandramma, AIR 1965 SC 1812. In Bhupendra Narayan Sinha Bahadur's case (supra) it was observed by their Lordship of the Privy Council as under:-

(3.) Mr. Sarin, learned counsel for the respondents, says that since the present petitioners admitted in their written statement that the plaintiff is the sole owner of the suit property, they may not be allowed to be transposed as coplaintiffs. He has relied upon Francisco Xavier Antonio Nazore v. Sylvia Angela Alvares, AIR 1971 Goa 35 and Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co., AIR 1977 SC 680, but the facts of these authorities are distinguishable. There is no dispute regarding the proposition of law as laid down in these authorities. In Goa case the plaintiff had objected to the transposition of the defendants as co-plaintiffs and, therefore, the application of the defendants was rejected. In the Modi Mills case (supra), it was a case of amendment and not of transposition. Hence these authorities are not applicable to the facts of the present case.