JOGESH CHANDRA BANERJEE Vs. HAYDER ALI

JUDGEMENT

(1.) In 1914 the residuary share of an estate was sold at a revenue sale and the plaintiffs purchased the rights of the auction-purchaser. They were unable to get possession of any portion of the estate as purchaser of this share. They then brought eight suits for declaration of their title and for joint possession against co-sharers who were in exclusive possession of different portions of the land of the estate. At the trial the main issue between the parties was whether the separate shares entered in the Collectorate register were recorded as separate accounts under Section 10 or under Section 11 of Act 11 of 1859. The plaintiffs contention was that separate accounts were opened under Section 10 which relates to separation of shares held in common. The contention of the defendants in each suit was that the separate accounts were opened under Section 11 which relates to the separation of shares consisting of land. On this issue the plaintiffs succeeded and obtained decrees in the first Court. On appeal the lower appellate Court though upholding the decision of the Munsiff on the main issue decreed the appeals and dismissed the suit on the ground that they were not maintainable. I should mention that they only appealed in seven of the suits, as one had been compromised in the first Court.

(2.) In our opinion the lower appellate Court has misunderstood the nature of the cause of action on which the plaintiffs based these suits. This is to some extent due to the unsatisfactory way in which the plaints have been prepared. The plaintiffs real cause of action is set out in paragraph 5 of the plaint. But in pargraph 9 where they give the date of the cause of action they gave the dates of three different events which are independent of the cause of action set out in paragraph 5. The plaintiffs real cause of action was that when they attempted to take possession by virtue of their purchase of each particular piece of land which was subject of a separate suit they were in each resisted by the defendants to the suits. These defendants in each suit are the persons who have been recorded as possessing the land in the Record of Bights prepared at the last Survey Settlement. In discussing the cause of action the first error in which the lower appellate Court has fallen is to confuse the defaulting proprietor with the plaintiffs predecessor. It is obvious that when he refers to the plaintiffs predecessors he moans the defaulting proprietors who owned the residuary share of the estate before the revenue sale. Bat they were not the plaintiffs predecessors. The predecessor of the plaintiffs was the actual auction-purchaser and he admittedly never had any possession delivered by the Collector after his purchase at the revenue sale. The lower appellate Court seems to think that the plaintiffs cause of action arose at some time unknown when the co-sharers of the estate by mutual arrangement divided the land among themselves so that each held certain specific land as representing his respective share. But this could not be the plaintiffs cause of action as they, having the rights of fie purchaser at the revenue sale, wore unaffected by any arrangement which the other co-sharers had made before the revenue sale. The effect of this mutual arrangement between the co-sharers was that they were individually possessing separate plots of land and individually asserting independent title to the land. At the trial they did not traverse the plaintiffs allegation as to their cause of action arising from their individually refusing be allow them to take possession of the separate parcels of land which is the subject of a separate suit. It was in fact traversed in one written statement only, that in suit 715 but even there the contention was not pressed at the trial and no issue was framed on this point. On the facts as alleged in the plaint and not disputed the plaintiffs have good cause of action against each separate set of defendants in each suit. Their cause of action was based on the fact that when they tried to take possession of the land which was the subject of one suit they were resisted by the defendants in that suit. Their cause of action was not as the lower appellate Court seems to hold on any concerted action of the other proprietors which took place before the auction purchase. In fact there was no evidence given at the trial on either side to show that there had been any combination by the plaintiffs co-sharers to prevent their taking possession. On the pleadings there was separate cause of action and there has been no splitting up of joint cause of action. We think it would have been better if in each of these suits the other co-sharers had been joined as pro forma defendants and the matter decided in their presence. But that was a defect of nonjoinder to which no objection was taken at the trial and it is not fatal to the plaintiffs suits. It is merely in the present case a formal objection since it has not been shown that any of the co-sharers have been in any way prejudiced by their nonjoinder in any of these suits. We hold therefore that the ground on which the suits have been dismissed was not established and that the suits as framed were maintainable. We think that the defects in the plaints were to some extent responsible for the mistake which has been made by the learned District Judge and we take that into consideration in respect of the order which we make as regards costs.

(3.) We decree these appeals and we set aside the judgment and decrees of the lower appellate Court dismissing these suits. The judgment and decrees of the Munsiff are restored in toto in respect of each of these suits. The parties will bear their own costs in this and in the lower appellate Court.