SHAMNATH Vs. JULGU

JUDGEMENT

(1.) THE instant FAO has arisen against the judgment of 18.7.2014, rendered by the learned Additional District Judge, Shimla, camp at Rohru, whereby the appeal preferred by the plaintiff/respondent herein was accepted and the judgment and decree rendered by the learned Civil Judge (Jr. Div) Court No. II Rohru, District Shimla was set aside and the case was remanded to the learned Lower Court with a direction to decide the same afresh in accordance with law.

(2.) THE plaintiff/respondent herein uncontrovertedly stands recorded as co -owner in the undivided holdings comprising the suit land. The appellant/defendant has raised/reared an apple orchard, besides has raised a house thereon. The dependence in the plaint by the plaintiff/respondent herein qua the fact of the appellant/defendant having reared an apple orchard thereon as also his having raised a house on the suit property, is anvilled upon a demarcation report prepared by the Assistant Collector 2nd Grade, in sequel to his in the presence of the appellant/defendant having demarcated the suit property. The defendant/appellant had concerted to nonsuit the plaintiff/respondent, by his canvassing in the written -statement the plea of his having acquired title to the suit property by adverse possession. However, even when the said plea was canvassed by the defendant/appellant in the written -statement, he omitted to, at the earliest stage, institute an appropriate application for begetting impleadment of all the co -owners in the undivided holdings comprising the suit property, for facilitating their participation in the suit, even when he had in the written -statement palpably pleaded the factum of the suit being bad for non -joinder of necessary parties, as such communicating the fact of other co -owners too having an interest in the suit property. The non -participation in the suit, of the aforesaid, sequelled the rendition of a decree qua the suit property, in their absence, concomitantly entailing the sequel of their rights in the suit property hence being gravely and severely affected. However, the said omission on the part of the defendant/appellant to, at the earliest stage, institute an appropriate application before the learned trial Court to beget addition of all the co -owners in the array of plaintiffs/Proforma defendants while theirs being necessary parties, has been endeavored to be extenuable on the score of there existing an averment in paragraph 5 of the plaint of the plaintiff having instituted a plaint against the defendant, on behalf of other co -owners, hence there being no necessity to seek impleadment of other co -sharers either in the array of plaintiffs or in the array of proforma defendants. However, even if the said averment in the plaint may tentatively render open an inference, that the assertion or espousal of a stand by the defendant/appellant in the written -statement, of his having acquired title to the suit property by adverse possession constitutes an assertion against the other co -owners as well besides rendering unnecessary the participation of other co -owners in the array of plaintiffs or in the array of proforma defendants. Nonetheless, the effect of the above averment stands waned as well as overcome by the factum of the defendant having acquiesced to the factum of rendition of an order for addition of other co -owners by the learned trial Court on an application instituted before it under Order 1 Rule 10 CPC by the plaintiff for begetting addition in the array of Proforma defendants or in the array of plaintiffs, constituted by his act of abstaining or omitting to assail it before the competent Court. In face thereof, when the orders rendered by the learned trial Court, on an application instituted before it, by the plaintiff/respondent herein under Order 1 Rule 10 CPC hence having attained finality as well as conclusiveness, as a natural corollary, then with the addition of other co -owners in the array of Proforma defendants, a right of participation to them in the lis has hence accrued or ensued, obviously then for facilitating their fair, just and effective participation in the lis, especially when their rights, in the suit property, in case the espousal of the defendant in his written -statement of his having acquired title to the suit property by adverse possession stands revered or vindicated, would obviously come to be trammeled as well as crippled, renders their participation to be imperative as well as essential. Consequently, the decree of dismissal of the suit of the plaintiff rendered by the learned trial Court in case gains approbation from this court even when there was want of participation or absence of the proposed defendants, in the array of proforma defendants or in the array of plaintiffs, would fetter as well as benumb the rights of the aforesaid, who are co -owners in the undivided holdings alongwith the plaintiff against whom, too acquisition of title to the suit property by adverse possession has been canvassed by the appellant/defendant to have been begotten. Moreover, the factum of the defendant in his written -statement having canvassed the factum of the suit being bad for non -joinder of necessary parties, yet his having omitted to even when he projected a right of his having acquired title to the suit property by adverse possession, institute an appropriate application for facilitating the participation of the other co -owners in the array of plaintiffs or in the array of Proforma defendants, which has been extantly undone, cannot stand impeachment, especially when his aforesaid omission portrays his acquiescence to the factum of necessity as well as imperativeness of their participation for rendering an efficacious executable decree qua the suit property. Further, the learned trial Court though seized of the Jamabandi qua the suit property with a disclosure therein of the suit property being jointly owned by other co -owners alongwith the plaintiff, has yet in a most cursory and mechanical manner overlooked as well as slighted its effect. In case it had at the initial stage, given the factum of the framing of an appropriate issue, anvilled upon the pleadings of the defendant in the written -statement of the suit being bad for non -joinder of necessary parties, in as much, as other co -owners in the suit property alongwith the plaintiff having been omitted to be joined in the array of plaintiffs or in the array of proforma defendants, facilitated its proof by adduction of evidence at the instance of such party to the lis upon whom the onus of proving the issue was cast, no injustice would have accrued to the other co -owners as now palpably has. The learned first Appellate Court while noticing the aforesaid infirmity had done justice by ordering for the transmission/remand of the lis to the learned trial Court after affording of an opportunity to the parties to the lis, to implead all the recorded co -owners as parties to the lis.

(3.) IN aftermath when in the face of the aforesaid nature of controversy which has beset the parties at lis, the retrial of the suit is considered just and essential for hence facilitating a re -determination of the lis inter -se the parties at contest amongst whom now the proforma defendants who previously were not arrayed in the array of either plaintiffs or proforma defendants now stand arrayed as party defendants. In nutshell the impugned order rendered by the learned First Appellate Court does not merit any interference obviously then it is upheld. However since now issue qua non -joinder and mis -joinder of necessary parties stands overwhelmed by the factum of all the necessary parties having come to be joined in the lis, the learned trial Court shall not render fresh findings on the issue occurring at Sr. No. 4, however, it shall render fresh determination on all other issues inter -se the extant parties to the lis. Parties are directed to appear before the learned trial Court on 16/07/2015.