MOTILAL Vs. MADAN

JUDGEMENT

(1.) THE Plaintiff-appellant filed a suit in the court of the Sub-Divisional Officer, Hindoun for ejectment of the respondents as trespassers and for damages by way of compensation as well as for a permanent injunction restraining them from interfering any further with the cultivation of the said land. It was averred that the suit land was recorded in the cultivatory possession of the plaintiff, which he alone had been cultivating since long and that the defendant-respondents who had nothing to do wi:h this land unlawfully took possession of it by force and thereby caused him undue damage and an apprehension that the defendants shall in future also resort to such unlawful activities as would jeopardize the cultivatory rights of the plaintiff. THE suit was resisted by the defendants-respondants who urged that they had been cultivating the suit land in their own rights as Shikmi Kashtkars which fact was also recorded in the Khasra Girdawari prepared periodically by the village Patwari. It was also stated that the suit land was not exclusively in the Khatedari of the appellant, but that it was held in joint tenancy with Manohari and Hira as joint Khatedar along with the the plaintiff and that, therefore, without impleading the said co-tenants, who were a necessary party to the suit, the present action was not maintainable. THE trial court framed three issues, out of which issue No. 3 was whether Manohari and Hira were necessary parties to the suit and what will be its effect on the present suit. THE trial court proceeded to examine this single issue and came to a finding that as the plaintiff appellant had not impleaded the other co-tenants namely Manohari ( Hira having since died), the suit was not maintainable and accordingly it was dismissed in limini. In appeal the learned Additional Commissioner also examined this point and after applying his mind to the provisions of sec. 183 and 211 of the Rajasthan Tenancy Act, came to the same conclusion and in the result dismissed the appeal. THE plaintiff has now filed this second appeal before us. Before the appeal could be argued on other points the learned counsel for the appellant moved an application for amendment of the original suit by introducing the name of Manohari, a co-tenant of this land, as a defendant in the heading of the suit as well as the following matter in para 3 of the plaint. ***

(2.) THIS application for amendment was contested by the respondents whose main argument was that the amendment to be made now was sought at a very late stage, that it will change the nature of the suit and introduce an inconsistent plea in the pleadings. It was also pointed out that even if the amendment was allowed the present suit shall be hit by the provisions of sec. 211 of the Rajasthan Tenancy Act. The learned counsel for both the parties addressed us at some length as to whether the amendment sought to be made be or be not allowed and what will be the fate of the suit in either circumstances. The learned counsel for the respondents urged that in their written statement they had specifically raised the point that in the case of a co-tenancy unless all the tenants are joined as plaintiff, no single person can bring a suit for ejectment of a person who may have unlawfully taken possession of such a joint holding. In support of this argument he referred to the provisions of sec. 211 of the Rajasthan Tenancy Act, which lay down that where there are two or more co-sharers in any right, title or interest all things required or permitted to be done by the possessor of the same shall be done by them conjointly unless they have appointed an agent to act on behalf of all of them. It was argued that this provision of law being manadatory, an omission on the part of the plaintiff to implead the other co-tenant, as co-plaintiff was fatal to the suit and that the present amendment application, which inspite of its having been filed at a very late stage, is allowed and one of the co-tenants is made a pro-forma defendant, it will serve no useful purpose to the plaintiff whose suit shall inspite of such an amendment suffer from the same fatal defect which existed at the initial stage of the suit. In support of this contention the learned counsel cited 1950-R. D. , 118 etc. wherein it was held that in a suit for ejectment whether u/s. 180 or u/s. 183 U. P. Tenancy Act (these sections correspond to sec. 183 and 186 of the Rajasthan Tenancy Act) all the co-tenants must join as plaintiffs, otherwise the suit is liable to be dismissed. Order I rule 9 c. p. c. was held to be inconsistent with the provisions of sec. 246 of the U. P. Tenancy Act which corresponds to S. 211 of the Rajasthan Tenancy Act. In earlier decisions reported in 1940, R. D. 308, 1948 R. D. 131,1946 R. D. 278, 1948, R. D. 441 the same view was held by the U. P. Board of Revenue. In 1949 R. D. 308 it was further observed that where a suit was brought by one co-sharer only and the other co-sharer was impleaded as a defendant the other co-sharer's failure to join as a plaintiff was a fatal defect. In 1948 R. D. 214 it was further observed that all persons entitled to admit a tenant to the land must join as plaintiff in a suit u. s. 180 of the U. P. Tenancy Act (equivalent to sec. 183 of the Rajasthan Tenancy Act) otherwise the suit is liable to be dismissed. The ratio decidendi in all these cases was that no such suit can proceed unless all the co-sharers or co-tenants are joined as plaintiffs and their non-joinder would be fatal to the suit. In the present case before us the plaintiff appellant himself in his application for amendment clearly stated that Manohari was one of a joint co-tenant and that he sought to implead him only as a pro-forma defendant. In the arguments addressed to us it was pointed out that he could not be joined as a plaintiff,because his interest happened to be adverse to that of the appellant. We will not labour any landing on this controversy for the simple reason that as the law stands today, the present suit could not be proceeded with without impleading the other co-tenant Manohari as a plaintiff and that it would serve no purpose if he was to be made a proforma defendant in such cases. It is true that the application for amendment of the plaint has been filed in second appeal at a very late stage. The plea of non-joinder of a necessary party was raised in the written statement by the defendants and an application for amendment as put to us now could have been as well filed before the trial court. The appellant or his counsel should have been aware of the provisions of law in this behalf as contained in sec. 211 of the Rajasthan Tenancy Act and without dragging the litigation upto this court, should have taken steps to rectify an inherent defect in the suit. But granting it for a moment that they did not know of the aforesaid provision of law, which in itself is unpardonable, even if we condone this delay and show indulgence by allowing this amendment application, the result will be to accord permission to do a thing which is basically illegal for reasons given above and the consequence will be the same, namely the dismissal of the suit. In this view of the matter, I direct that not only the application or amendment, but also the suit as framed originally shall stand dismissed. Per Shri R. N. Hawathis second appeal has been preferred by the unsuccessful plaintiff whose suit for ejectment of the defendant-respondents from the suit-land as trespassers as well as compensation and permanent injunction has been concurrently dismissed by both the Addl. Commissioners, Jaipur (on 8. 3. 60) and the Asstt. Collector Hindon (on 31. 3. 60) on a technical ground of the suit not having been filed by all the co-tenants thereof. We have heard the learned counsel for the parties and examined the record also carefully. The suit was brought by the plaintiff-appellant with the averment that he has been and was the exclusive tenant and possessor of the suit land and had been cultivating it himself exclusively, the record in the khasra Girdawari being also the same, upto or about 2. 7. 58 when the defendant-respondents forcibly and wrongfully dispossessed him. The suit was denied in its entirety by the respondents who claimed their possession over the suit land for 6 or 7 years as a sub-tenant, with the same record in khasra Girdawari, and also alleged that the plaintiff-appellant was not the sole and exclusive khatedari tenant thereof, but that Manohari and Hira were also his co-tenants. The following issues were framed by the trial court and parties Jed their full evidence thereon : (1) Whether the plaintiff was Khatedar Kashtkar of the suit-land ; (2) Whether the defendant occupied it unlawfully on or about 1. 7. 58 : (3) Whether Manohari and Hira were necessary parties to the suit and what its effect would be on the suit; and (4) To what relief the plaintiff was entitled. The evidence led by the parties was not, however, at all looked into by the learned trial court,and the issue No. (3) 'whether Manohari and Hira were necessary parties to the suit and what effect it had thereon' was decided against the appellant on the sheer ground that the suit had neither been brought on behalf of all the Khatedars as required by sec. 183 of the Rajasthan Tenancy Act nor had other co-tenants been impleaded even as defendants nor any claim of the appellants being authorised to act on behalf of them had been made as required by sec. 211 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act) and holding that there did not remain any need of deciding other points at issue dismissed that suit in its entirety. In appeal also the learned Addl. Commissioner did not care to look into any other aspect of the case and upheld the decision of the learned trial court on the ground that both under sec. 211 and sec. 183 of the Act all the co-sharers should join as plaintiffs in a suit, as held after examining the language of corresponding U. P. Tenancy Act secs. 246 & 184 in a number of cases by the U. P. Board of Revenue, and turned down the plea of the appellants that no suit can be dismissed by virtue of the provisions of O. I, R. 9 C. P. C. only on the ground of non-joinder of parties with an observation that it related only to proforma parties. The decision of this Board in 1958 RRD 37 was also quoted to say that only one of the co-sharers could not admit anybody as a tenant. In this second appeal it has been urged on behalf of the appellant that the provisions of sec. 213 of the Act have been made wrongly applicable to this suit for the ejectment of the trespasser by the learned courts below, who have also been alleged to have erred in not giving a definite finding whether the appellant alone was in the exclusive possession of the suit land or not before deciding the case, and in dismissing the suit only on the ground of the non joinder of the parties without letting him have an opportunity of amending the plaint. The argument is that a trespasser could be sued to be ejected by any of the co-tenants and sec. 211 of the Act did not hit it. It was also stated that one of the co-tenants Hira had died about 20 years ago leaving Manohari alone as heir, who too had surrendered his rights in favour of the plaintiff and had not been in possession for a long time. It was also urged that the suit was governed by the provisions of general law and that he, therefore, possessed an inherent right under the provisions of order 6 Rule 17 C. P. C. of amending his plaint at any stage of the suit. The permission for making the following amendment in the plaint was also prayed for;