ABRAR HUSAIN Vs. AHMAD RAZA

JUDGEMENT

(1.) This is an appeal by the plaintiffs and defendants 2 to 7 and arises out of a suit for declaration. The parties to this litigation are cosharers in village Belamau Saraiyan. The plaintiffs claimed a declaration that they and defendants 2 to 7 are the owners of groves Nos. 1035 and 971 in proprietary right, and, therefore, of the cattle market which is held on those plots, and that defendant 1 had no right to any part of the profits accruing from that market. The suit was contested by defendant 1 only. Defendants 2 to 7, who are described in. the plaint as pro forma defendants, did not file a written statement in the trial1 Court, nor did they in any way affirm or deny the plaintiffs claim or the right of defendant 1. The defence of defendant 1 was that the cattle market is held on the joint land belonging to all the cosharers, including himself, and that the income accruing from it belongs jointly to all the cosharers. The trial Court found in favour of the plaintiffs, and decreed the suit. Defendant 1 preferred an appeal in the Court of the Subordinate Judge, impleading only the plaintiffs. At the hearing the lower appellate Court considered that defendants 2 to 7 were necessary parties, and impleaded them at a time when the period of limitation for appeal had run out. Defendants 2 to 7 took exception to being joined; but their objection was overruled. The lower appellate Court found on the merits that the cattle market was originally held on plot 1035, but was extended to 971 in or after 1930. It also found that defendant 1 had obtained several decrees for profits, including the income accruing from the cattle market, and that as the land of groves Nos. 1035 and 971 belonged to all the cosharers of the mahal, he was entitled, in common with other cosharers, to his share of the profits derived from the cattle. The result was that the plaintiffs suit was dismissed.

(2.) The present second appeal was filed by the plaintiffs and defendants 2 to 7, impugning the decision of the lower appellate Court on two main grounds : (1) That it was not justified in impleading defendants 2 to 7 as respondents after the expiry of the period of limitation for appeal; and (2) that the plaintiffs and defendants 2 to 7, being the transferees of the rights of grove-holders in respect of plots 1035 and 971, are entitled to the profits accruing from the cattle market, to the exclusion of defendant 1, who had no interest in the groves other than proprietary rights in the sites thereof.

(3.) It seems to me that the lower appellate Court had a discretion to implead defendants 2 to 7 as respondents even after the expiry of the period of limitation for appeal. To my mind more than one provision of the Civil Procedure Code confers such a power on a Court of appeal. Order 1, Rule 10, Civil P.C., empowers the Court of first instance to implead any person whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and. settle all the questions involved in the suit. Under Section 107, Civil P.C., a Court of appeal has all the powers which may be exercised by the Court of first instance. Order 41, Rule 20, Civil P.C., expressly provides for joinder of parties in appeal. It provides: Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a futurer day to be fixed by the Court and direct that such person be made a respondent.