RAMAUTAR SINGH Vs. RAMSEWAK LAL

JUDGEMENT

(1.) The question which arises for decision in this case is whether defendants 2 to 4 are necessary parties in the suit brought by the plaintiffs for redemption of the land in dispute.

(2.) For the plaintiffs it was alleged that his ancestor had on 15-3-17 executed a rehan deed in favour of the father of defendant 1, for a sum of Rs. 50 with respect to 15 bighas 4 kathas 11 dhurs of land. A few months later defendant 1 executed a Bazidawa in favour of defendant party 2 treating the land as bakasht. The plaintiffs deposited the rehan money under Section 83, 'T. P. Act. After due service of notice on defendant party 1, they instituted a suit for redemption of the land. Defendant party 2 was impleaded on the ground that he interfered with the possession of the plaintiffs. The learned Munsif overruled the objection of the defendant party 2 and held that they were necessary parties for the decision of the suit.

(3.) In support of the rule Mr. Lalnarain Sinha referred to the principle that in a suit for redemption, paramount title ought not to be normally drawn into controversy without the consent of the parties. It was pointed out that in the present case paramount title was in conflict with the title of the mortgagor as well as the mortgagee. For the opposite party reference was made to Zakirraza v. Madhusudan Dass, A.I.R. (5) 1918 Pat. 356 : (45 I.C. 691) and Khub Lal v. Jhapsi Kundu, A. I. R. (11) 1924 Pat. 613 : (3 Pat. 244). But these cases must be distinguished for they proceeded upon the ground that the defendants who had set up paramount title appeared and contested the allegation set out in the plaint, that issues had been framed with their concurrence and so they could not afterwards object that the issues ought not to have been litigated, since they have already acquiesced in that course. In the present case, however, it is of importance to observe that the applicants as soon as they appeared in Court objected that the issue as to paramount title ought not to be tried and they should be struck off from the action. In the present case, therefore, I am of opinion that the learned Munsif was wrong to hold that the applicants were necessary parties but ought to have struck their names from the suit. This view is supported by Loknath Singh v. Santokhi Missir, 7 P.L.T. 737 : (A.I.R. (14) 1927 (Pat. 45 : 27 Cr. L.J. 1240) in which the High Court interfered in a second appeal and dismissed the suit against the defendants who set up a paramount title but whose objection was not entertained by the lower Courts. The principle is laid down in Jaggeswar Butt v. Bhuban Mohan, 33 Cal. 425 : (3 C.L.J. 205) in which Ashutosh Mookerjee J. restated the ordinary rule that a plaintiff mortgagee cannot be allowed to frame his suit as to draw into controversy the title "of a third party, who is in no way connected with the mortgage and who has set up a title paramount to that of the mortgagor and mortgagee. It was observed that the rule was not one of convenience merely and the fact of the question of such title being determined by the Court of first instance in breach of the rule did not preclude a Court of appeal from reversing the decree.