POLEGAR MEGHAVARANAM NAIDU Vs. AMMAHOMMAD MOHIDEEN SAHIB

JUDGEMENT

(1.) The appellants are defendant 4 and the legal representative of defendant 3 in a suit for contribution based on a payment, made by the plain-tiffs who own lands in the same holding of which defendants 2 to 4 are pattadars, in order to save the holding from sale for arrears of rent due to defendant 1 the usufructuary mortgagee from the zamindar. The trial Court found most of the issues in favour of the plaintiffs but dismissed the suit on the, ground of nonjoinder of parties. The learned District Judge held that it was possible to give a just decree against defendants 2 to 4 without impleading others who are alleged to be in possession but had not been impleaded and that non-pattadar defendants 5 to 31 were not liable to pay rent to defendant 1 and are therefore not liable to contribute to the plaintiffs and remanded the suit for disposal by the trial Court. The two main arguments in appeal before this Court are: (1) that the suit is bad for non-joinder of parties; and (2) that the suit is barred by limitation.

(2.) The question of non-joinder depends on the following averments in the written statement of defendants 8 to 30 : "These defendants submit that there are several others who are in enjoyment of lands pertaining to Schedule C properties and they are essential parties to the suit". It seems to me that on such a pleading no issue such as that which was framed by the learned District Munsif really arises. If the defendants wish to object to a suit on the ground of non-joinder of parties, it is to my mind clearly incumbent upon them to state who are the parties that should have been joined and what is the nature of their interest in the suit. It is true that one of the defendants in his evidence gives the names of certain people who are alleged to be in possession of certain pieces of property included in the holding. Whether they are in possession as tenants or as licensees or benamidars we do not know. But whatever be the facts, I do not think that it was incumbent on the plaintiffs to make researches to discover the identity of supplemental defendants who in their opinion were not necessary, at any rate until the defendants raising the objection had given such information as would enable the plaintiffs to implead them. No do I think that it was necessary for the plaintiffs to take the trouble themselves by serving interrogatories upon the defendants to ascertain the names of possible supplemental defendants. Holding therefore as I do that this issue regarding non- joinder was raised on inadequate materials, it seems to me unnecessary to go therefore into the question whether the suit was liable to be dismissed by reason of the nonjoinder of persons whose names even now are not formally before the Court.

(3.) The question of limitation is one in which there is more substance. So far as this suit asks for personal reliefs against the defendants it seems to me clearly to fall either under Art. 61 or under Art. 99, Lim. Act, and it is immaterial which of these two Articles is applied since the period of limitation in both is three years from the date of payment. Both the Courts below have accepted the view which is taken in Aaanda Mohan Roy V/s. Maniruddin Mahomed 1917 36 IC 392 that the phrase date of payment in. Col. 3 of both these Articles means the date on which the payment into Court was made effective by the appropriation of money to the sale which is to be set aside. That view seems also to be adopted in the later case, Gahar-Ali- Havaldar V/s. Abdul Owabab Shikdar 1928 56 Cal 192, in which it is observed that the criterion as to the date of payment must be the date on. which the plaintiff lost dominion over the money which he paid, and then it is assumed that the plaintiff continues to have dominion over the money which he has paid into Court to set aside a sale or in satisfaction of a decree until that money is appropriated by formal proceedings of the Court. With all respect, I find myself unable to agree either with the conclusion arrived at in this case or with the reasons upon which it is based.