MIRZA ABDULLAH BEG Vs. ABDUL HASAN

JUDGEMENT

(1.) THE suit out of which this appeal arises was a suit instituted by one Mirza Abdulla Beg, claiming a mandatory injunction for the demolition of certain constructions which he alleged the defendants had wrongfully made. He claimed to be entitled to a certain house which he alleged bad been encroached upon. THE defendants denied his title and claimed that the house was not his house but their house. Mirza Abdullah Beg was examined, and in the course of his examination he admitted that his sister, one Kulsum Bibi, had an interest in the house. THE Court of first instance thereupon made an order, presumably under the provisions of Order I, Rule 10 of the Code of Civil Procedure, and added of his own motion Kulsum Bibi and other residents in the house as co-plaintiffs in the suit. THE learned Judge of this Court before whom the suit came in second appeal had some, doubt as to whether or not Kulsum Bibi really consented to join in the proceedings1, and he says in one part of his judgment that it does not appear that Kulsum Bibi was in any way related to Mirza Abdulla Beg, the original plaintiff. He was clearly in error in this respect. THEre is not the smallest doubt that Kulsum Bibi was the sister of the plaintiff Abdulla Beg, that both lived together in the house, and that she consented to be added as a plaintiff and adopted the proceedings which had been initiated by her brother. THE learned Munsif having added Kulsum Bibi as a plaintiff proceeded to go into the merits of the case. He found that the real owner of the property was Kulsum Bibi and not Abdullah Beg. We do not think that it was necessary for the learned Munsif to have gone into the question of the legal ownership of the house excepting so far as it was necessary to find whether the plaintiffs between them were entitled to the property. THE question of their rights inter se did not arise. It was not convenient to try such rights in a case where the plaintiffs were joining in a common action against alleged wrong-doers. Having heard the case on the merits, he decided the suit partly in favour of the plaintiffs and partly in favour of the defendants. THE defendants have not in anyway been prejudiced by the adding of Kulsum Bibi as a co-plaintiff; rather the contrary. She having been made a party to the proceedings, was bound by the decision of the Court in so far as it was in favour of the defendants. However, both parties appealed to the learned District Judge. Most of the grounds of appeal on behalf of the defendants were strictly on the merits of the case. In the last ground of appeal, however, it was contended that as the original plaintiff Abdulla Beg had no title, according to the finding of the Court, the decree should not have been granted. THE learned District Judge did not go into the merits of the case, nor did he set aside the order adding Kulsum Bibi as a co-plaintiff but summarily dismissed the suit on the ground that Kulsum Bibi ought not to have been joined, and that, inasmuch as the Court of first instance had found that Abdullah Beg had no title, he dismissed the suit not only against Abdullah Beg but also against Kulsum Bibi. Upon second appeal to this Court the decision of the learned District Judge was confirmed. We doubt very much whether our learned brother would have taken the view he did, had he been aware of the fact that Abdullah Beg and Kulsum Bibi were brother and sister living together in the very house in question. It is to be admitted here that the dismissal of the suit against Kulsum Bibi, who was added by the Court, cannot possibly be sustained. We think further that, under the circumstances of the present case, and having regard to the fact that Abdullah was living in the house with his sister, the joining of Kulsum Bibi as a plaintiff by the Court was not an unreasonable or illegal exercise of the powers conferred on the Court by Order I, Rule 10. It enabled the Court to do complete justice between the parties and prejudiced no one, all persons who were in physical possession of the house would have been bound by the result of the suit, whether that result was in their favour or in favour of the defendants. THE order that the learned Munsif made was calculated to settle disputes once for all between all parties. We think that after the evidence has been taken, that it would be deplorable if the case was now dismissed on the technical point of the want of legal title in Abdullah and the parties driven to commence their litigation all over again. We think this appeal ought to be allowed. We accordingly set aside the decree of this Court and also of the lower Appellate Court. THE case was decided on a preliminary point. Accordingly, it will be remanded under the provisions of Order XLI, Rule 23, with directions to the learned District Judge to re-admit the appeal, and to proceed to hear and determine the same on the merits. Costs here and heretofore will be costs in the cause.