AYUB Vs. BHANWARCHAND

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit for declaration that the plot of land in dispute situated in Nagaur belongs to the plaintiffs, and also for possession of the same.

(2.) THE plaintiffs, who are the followers of 'Khatargachh' sect of Nagaur through their trustees Bhanuar Chand and others filed the suit in the court of civil Judge, Nagaur on 20.3.1955 alleging that the plot in question belonged originally to one Ibrahim Kheradi, and others, who sold the same to Chadwa Gulani Mohammed, Imam Bux etc. for Rs. 125/ - on Maha Badi 13, 8. 1881 by a sale deed which has been placed on the record and marked Ex. 6 Gulam Mohammad and others obtained a 'Patta' of this land in their names, a copy of which also has been placed on the record by the plaintiffs and has been marked Ex. 2. The plaintiffs go on to state that on Asoj Badi 9.8.1901 Gulam Mohammad and others mortgaged this plot with possession in favour of Guran Heerachand; Roopchand and Khemchand of 'khatargachh' sect of Nagaur and executed a will their favour; (marked Ex. 5), The plaintiffs had also pleaded that even otherwise they succeeded as heirs to Guran Roopchand and thus became the owners of the plot in question. The plaintiffs further alleged that en 19.7.1948; they made an application for grant of, Patta' of the land in question in their favour to which the defendants who are the managers of Masjid Khari, situated in Teliwada, Nagaur filed an objection. The objection was dismissed and later on the plaintiffs' application for grant of, Patta' which was also dismissed. It is stated that taking advantage of the dismissal of the plaintiffs' application for 'Patta' the defendants unlawfully encroached upon the plot in question on 2. 1957 by fixing 'Pattis' on it and also applied to the Municipal Board, Nagaur for grant of permission to raise construction over the land. In these circumstances the plaintiffs brought the present suit for the reliefs already mentioned above.

(3.) MR . M.M. Vyas, learned Counsel for the appellants urged in the first instance that the suit had been filed by Khatargachh sect of Nagpur through its trustees which it is not, a legal entity and is therefore not maintainable. On the other hand, Mr. Parekh learned Counsel for the respondents also raised a preliminary objection that 'khatargachh' sect which was the plaintiff and in whose favour the decree had been passed by the lower court has not been impleaded a party to this appeal, but Bhanwarchand and others have been impleaded as respondents in their personal capacity and not even as trustees of 'Khatargachh' sect, and, therefore, the appeal is not maintainable. I do not see any force in the aforesaid contentions raised by the learned Counsel for both the parties. The suit has been brought by Bhanwar Chand and others as trustees representing the Khatargachh sect of Nagaur and the procedure prescribed under Order 1 Rule 8, C.P.C. was followed. In these circumstances it cannot hi said that the frame of the suit is wrong. As regards to the objection by, the learned Counsel for the respondents, it is correct that Khatargachh sect of Nagaur has not been mentioned in the array of respondents, nevertheless, the trustees in whose favour the decree has been passed have been impleaded as respondents in the case and it maybe reasonable to presume that they have been impleaded in the capacity of trustees or representatives even though they have not been described as such in the title of the memo of appeal. I am, therefore, of opinion that the appeal is not liable to be thrown out on the ground of non -joinder of necessary parties.