Judgement Consolidated Appeal from six decrees of the High Court (March 21, 1904) reversing six decrees of the District Judge of Gorakpur (May 14, 1900) which had dismissed the first respondents ejectment suits. The High Court held that he was entitled to recover possession as claimed subject in regard to some of the villages in suit to certain mortgages thereon. Law. Rep. 37 Ind. App. 60 ( 1909- 1910) Imdad Ahmad V. Raja Pateshri Partap Narain Singh 11 The plaints alleged that the first respondent was owner of an impartible raj called the Basti Raj, of which in A.D. 1729 Jai Singh was the reigning Raja; that Kishen Singh, one of his younger sons, obtained the properties in suit as his maintenance portion of the raj, according to a custom in the Basti Raj, as his hak babuai right instead of a cash allowance, the same reverting to the original estate after his death without issue and that of his widow. The plaints further alleged that after Kishens death his widow, Chain or Jian Kunwari, who died in 1812, took possession thereof and executed in favour of Chet Singh, her husbands great-nephew, a deed of gift contrary to the custom; that Raja Jobraj Singh, the successor of Raja Jai Singh, took and maintained possession of some of the villages so given to Chet Singh, but with regard to those in suit they remained with Chet Singh and afterwards with his widow, except so far as they were alienated by them respectively; and no action was taken by the Raja for their recovery. The plaints further alleged that later on Chet Singh made a deed of sale of some of the villages to his wife, and the ancestor of the plaintiff was about to institute a suit for their recovery. On March 24, 1848, however, Chet Singh executed a document called a sipurdnama in favour of Raja Indar Dawan Singh, a successor of Jobraj and grandfather of the plaintiff, to the effect that all his property, including that which he had alienated to his wife, belonged to the raj and would revert to the raj on the death of his widows. After the death of Chet Singh and one of his widows, named Gulab Kunwari, all the property came into the possession of his second widow, named Rup Kunwari, who on January 6, 1858, executed a document called a warasatnama in favour of Raja Mahesh Sitla Bakhsh Singh, the father of the plaintiff, confirming, and to the same effect as, the said sipurdnama executed by Chet Singh. Rup Kunwari died on January 15, 1887, when a dispute arose between Sitla Bakhsh and the first defendant, the nephew and heir of Chet Singh, as to the right to her property, with the result that the latter was placed in possession by the District Magistrate, and Sitla Bakhsh was directed to bring a suit in the Civil Court. The plaints prayed to recover possession either in reversion as grantor on failure of Kishen Singhs male issue, on the death of his widow in 1812, or as grantee under the sipurdnama and warasatnama. The District Judge found in reference to the custom that the weight of evidence was in favour of the view " that a partition, not necessarily on equal terms, takes place upon the accession of a new Raja, than that estates for maintenance are granted, and the evidence utterly fails to shew that property thus falling to the younger brothers is burdened with any restriction on alienation, or that anything less than the fee simple of such property is granted. The plaintiff has failed to prove that the raj is an impartible raj, or that limited estates are granted for maintenance to the younger members of the family as alleged." The High Court did not expressly overrule this finding, but observed, " it is clear and it is admitted on all sides that Chet Singh acquired a good title to the property now in dispute by adverse possession, and it is unnecessary for us to determine whether or not that custom has been established. If it existed Chet Singh acquired the property contrary to and in spite of it, and nothing occurred subsequently to re-impress it with the character of impartibility." This adverse possession was found to have run from the death of Jian Kunwari on February 17, 1812, and it was held that any claim by the plaintiff under the custom was barred by limitation at Chet Singhs death in 1849, a view which accorded with that of the District Judge. The High Court accordingly treated the genuineness of the sipurdnama and warasatnama as the real question for determination, and on this point overruled the finding of the District Judge that they were not proved to have been duly executed. The High Court found that the evidence " establishes to our satisfaction " both documents, and that "it was unnecessary to have recourse to the presumption which s. 90 of the Evidence Act allows a Court to make in such a case." With regard to the title which accrued to Sitla Bakhsh as grantee under these documents and the first Law. Rep. 37 Ind. App. 60 ( 1909- 1910) Imdad Ahmad V. Raja Pateshri Partap Narain Singh 12 respondents right to maintain these suits as his heir the High Court made these observations " If it came to him under the sipurdnama it would not be impressed with the character of impartibility, nor be subject to the alleged custom upon which the plaintiff relies. It was severed from this raj and held by Chet Singh as his absolute property and so became subject to the ordinary rules of descent under the Hindu law. Consequently upon the death of Raja Mahesh Sitla Bakhsh Singh it devolved upon the plaintiff and his only brother Babu Bhuneshri Partap Narain Singh as members of a joint Hindu family. After the conclusion of the arguments, which lasted for several days, and when judgment was being considered, it occurred to one of us that Babu Bhuneshri Partap Narain Singh ought to have been a party to the suit, inasmuch as if the genuineness of the sipurdnama be established he is entitled to an interest in the property. After the conclusion of the arguments, which lasted for several days, and when judgment was being considered, it occurred to one of us that Babu Bhuneshri Partap Narain Singh ought to have been a party to the suit, inasmuch as if the genuineness of the sipurdnama be established he is entitled to an interest in the property. We pointed out this to the learned advocates of the parties and entertained an application which was made on behalf of the plaintiff for the addition of the name of his brother to the array of parties in the several suits and appeals. Babu Bhuneshri Partap Narain Singh, on the matter coming to his notice, filed petitions in each of the appeals and therein expressed his willingness to be joined as a party and prayed that the relief sought by the plaintiff in the several suits might be granted. The defendants objected to this application mainly on the ground that under s. 22 of the Indian Limitation Act the suits were barred as against Bhuneshri Partap Narain Singh when the question as to his joinder in the array of parties was raised, and that it would not be proper for the Court to add him as a party of its own motion if the effect of doing so would be to preclude the defendants-respondents from relying on the bar of the statute. It was pointed out to us that in the suits out of which appeals Nos. 246, 247, 252, and 265 arose objection was taken by the defendants in their written statements to his non-joinder. This objection, however, was admittedly not pressed at the trial. If it had been, the plaintiff would undoubtedly have applied for and obtained leave to implead his brother. Under the circumstances we determined of our own motion to add Babu Bhuneshri Partap Narain Singh as defendant and respondent in the several suits and appeals. This does not, as we understand the law, preclude us from considering and giving effect to the provisions of the Limitation Act if they create a bar to the suits." Upon the point of non-joinder thus raised the High Court later in their judgment ruled as follows "We now come to the question of the non-joinder as a party to the suit of the plaintiffs brother Babu Bhuneshri Partap Narain Singh. As we have mentioned, the question of non-joinder was raised in several of the written statements, but it was never pressed. During the argument of the appeals the question was never broached by any one, and it was not until the point occurred to one of us when preparing our judgment that any objection on the score of the non-joinder was raised. It has been argued on behalf of the respondents that a suit now instituted byBabu Bhuneshri Partap Narain Singh would be statute-barred and that the Court ought not to add him as a party, if doing so would have the effect of depriving the respondents of the benefit of limitation. It has been further contended on behalf of the respondents that the plaintiff-appellant being a joint tenant cannot alone maintain a suit for the whole or any part of the joint family property, and that consequently the suits were bound to fail. On behalf of the appellant it was contended that the plaintiff as the head of the family was as such entitled to eject trespassers and that the Statute of Limitation did not furnish any bar to the suit by reason of the addition to the array of parties of Babu Bhuneshri Partap Narain Singh; that in fact any co-sharer has a right to eject a trespasser, and a fortiori the head of the family. The plaintiff did not in express terms sue on behalf of his brother as well as himself. To do so would in fact have been inconsistent with the principal claim which he set up, namely, that the property formed part of an impartible raj, and in accordance with the custom prevailing in the raj reverted to the raj on the death of a collateral member of the family without male issue. He claimed, however, in the alternative to be entitled to the property by virtue of the sipurdnama, and obviously in putting forward this claim he must have done so for the benefit of his brother as also of himself, for the property in that case devolved upon them as the only sons of Raja Mahesh Sitla Bakhsh Singh, without being impressed Law. Rep. 37 Ind. App. 60 ( 1909- 1910) Imdad Ahmad V. Raja Pateshri Partap Narain Singh 13 with the character of impartibility. Rep. 37 Ind. App. 60 ( 1909- 1910) Imdad Ahmad V. Raja Pateshri Partap Narain Singh 13 with the character of impartibility. Babu Bhuneshri Partap Narain Singh, when the point in question was raised, was not merely willing to be a party to the proceedings, but in the petitions which he has filed asks the Court to decree the plaintiffs claim. To determine the suit against the plaintiff on this tardily raised point is not a course which one would be disposed to adopt. If the question had been raised at the trial the plaintiff would have no doubt obtained the consent of his brother to his name being added in the array of parties to the proceedings. Mr. Mayne in his work says It would seem that one co-sharer may sue to eject a mere trespasser when his object is to remove an intruder from the joint property without at the same time claiming any portion of it for himself(6th ed. p. 371). He refers to the case of Radha Proshad Wasti v. Esuf. (( 1881) I. L. R. 7 Calc. 414.) In that case Garth C.J., in the course of his judgment, observes ‘When a tenant has been put into possession of ijmali property with the consent of all the sharers, or what is the same thing, has been placed there by the managing shareholder, who has authority to act for the rest, no one or more of the co-sharers can turn the co-sharer out without the consent of the others. But no man has a right to intrude upon ijmali property against the will of the co-sharers or of any of them. If he does so, he may be ejected without notice, either altogether if all the co-sharers join in the suit, or partially if only some of the co-sharers wish to eject him; and the legal means by which such a partial ejectment is effected is by giving the plaintiffs possession of their shares jointly with the intruder, as explained in the case of Hulodhur Sen v. Gooroo Doss Roy (( 1873) 20 Suth. W. R. 126.) per Jackson J. "The point arose in a case not unlike the present, namely, the case of Guruvayya Gonda v. Dattatraya Anant. (( 1903) I. L. R. 28 Bomb. W. R. 126.) per Jackson J. "The point arose in a case not unlike the present, namely, the case of Guruvayya Gonda v. Dattatraya Anant. (( 1903) I. L. R. 28 Bomb. 11.) In that case a suit was originally brought by two plaintiffs to recover possession of a house, the second plaintiff being described as the manager of the family. Subsequently, at a late stage of the suit, the defendants having raised an objection of non-joinder of parties, the other members of the family, who were satisfied to be represented by the plaintiff No. 2 as the manager of the joint family, were joined as co-plaintiffs after the expiry of the period of limitation prescribed for the suit. The First Court allowed the claim; but on appeal the Lower Appellate Court reversed the decree and dismissed the suit as time-barred under s. 22 of the Limitation Act. It was held on appeal by Sir L. H. Jenkins C.J. and Jacob J., reversing the decree of the Lower Appellate Court and restoring that of the First Court, that s. 22 of the Limitation Act does not in itself purport to determine directly whether the joinder of the parties after the institution of the suit shall in all cases necessarily involve the bar of limitation, if the period prescribed for such a suit has then expired. Jacob J., who delivered the judgment of the Court, observed that such a result must depend upon consideration of the question whether the joinder was necessary to enable the Court to award such relief as may be given in the suit as framed. Later on he observes ‘It is further clear that the plaintiff No. 2 was from the outset joined as manager of the joint family in view of the alternative prayer of declaration of their ownership and for consequential recovery of possession of the property, failing proof of the oral leases. The question therefore before us is rather whether the claim could have been decreed in the suit of plaintiff No. 2 as manager, or whether the non-joinder of the other co-sharers, minors and adults, was a defect which could be overlooked by reason of the delay on the part of the defendants in taking objection to it. The question therefore before us is rather whether the claim could have been decreed in the suit of plaintiff No. 2 as manager, or whether the non-joinder of the other co-sharers, minors and adults, was a defect which could be overlooked by reason of the delay on the part of the defendants in taking objection to it. If fresh parties are merely joined for the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination (by application of the provisions of s. 22 of the Limitation Act) of the date of the institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit, and would not therefore attract the application of the general provisions of the Limitation Act. He then proceeds The main question in this appeal is whether, had the additional plaintiffs not been joined, it would have been competent to the Subordinate Judge to pass a decree for ejectment against the defendants, on the facts alleged and proved, in favour of the original plaintiffs. He then cites some authorities and concludes by saying We must hold that the bar of limitation was not established, as the defendants objection to non-joinder of parties having been taken at a late stage of the suit may be disregarded. Law. Rep. 37 Ind. App. 60 ( 1909- 1910) Imdad Ahmad V. Raja Pateshri Partap Narain Singh 14 "This decision appears to us to be consonant with justice and we are prepared to follow it. We are unable to discover any substantial difference in the facts of that case and those in the case before us. In both the suit was to eject trespassers by co-sharers, in the one, one of the plaintiffs being described as manager of the family; in the other, the sole plaintiff being described as Raja that is head of the family. In both cases the members of the family who were not represented were placed in the array of parties after the expiry of the period of limitation prescribed for the suit. In the suit out of which this appeal has arisen and in three other of the suits the objection was raised by the defendants but was not pressed. It was this Court which pointed out this defect in the matter of parties. In the suit out of which this appeal has arisen and in three other of the suits the objection was raised by the defendants but was not pressed. It was this Court which pointed out this defect in the matter of parties. If the raj is impartible, and if the property comprised in the sipurdnama was impressed with the character of impartibility, the plaintiff alone would be entitled to it. We therefore hold that the objections thus tardily presented to the joinder of the plaintiffs brother as a party to the suits and appeals are untenable, and that the Statute of Limitation furnishes no bar to the suits." Cohen, K.C., and Ross, for the appellants, contended that the First Court was right in finding that the evidence was insufficient to establish the genuineness of the sipurdnama and warasatnama. With reference to their effect if genuine, it was contended that Sitla Bakhsh did not take an impartible estate in the properties which vested in him under the two documents, and that consequently on his death they descended to both his sons jointly. The plaintiffs younger brother Bhuneshri was consequently a necessary party to the suit, and the High Court (I. L. R. 26 Allah. 528) was in error in joining him as defendant and respondent during or after the hearing before them, and after the period of limitation as regards any suit by the younger brother had expired. Reference was made to Act XV. of 1877, s. 22, and to Guruvayya Gonda v. Dattatraya Anant. (I. L. R 28 Bomb. 11.) De Gruyther, K.C., and Cowell, for the first respondent, contended that the High Court was right in upholding on the evidence the genuineness of the two documents in question. The presumption, moreover, was in their favour under s. 90 of the Evidence Act. As to their effect in transferring title there was strong evidence that the properties in suit should have reverted to the raj on the death of Jian in 1812. The presumption, moreover, was in their favour under s. 90 of the Evidence Act. As to their effect in transferring title there was strong evidence that the properties in suit should have reverted to the raj on the death of Jian in 1812. The prolonged litigation which had ensued was referred to, and it was contended that it was proved that the transaction evidenced by those documents was a reasonable and probable compromise of conflicting claims, the intention being expressed to be that the properties should "go to the raj and the Raja will take possession thereof." The intention was that they should revert as the custom directed, never having been actually severed from the raj see Durga Dutt Singh v. Rameshwar Singh. (( 1909) L. R. 36 Ind. Ap. 176.) If, however, the character of impartibility was not impressed upon it in the hands of Sitla Bakhsh, and Bhuneshri was equally entitled as a joint heir, it was contended that the objection as to non-joinder came too late and had been waived see Civil Procedure Code, s. 34; Phoolbas Koonwar v. Lalla Jogeshur Sahoy. (( 1876) L. R. 3 Ind. Ap. 7.) In the cases before their Lordships the point had not been taken in the pleadings, and in the other cases, though taken, it had not been pressed. Bhuneshri was added as a defendant and a respondent in order that he might be bound by the decree, but the character of the suit was unaltered; and Bhuneshri agreed that the plaintiff should recover as prayed. Ross in reply. The judgment of their Lordships was delivered by LORD COLLINS. The question on this appeal is whether the plaintiff, who is the Raja of Basti, is entitled to recover possession of a number of villages or parts of villages situate in the district of Basti. Seven connected suits brought by the same plaintiff were tried at the same time and were all dismissed by the judge of first instance. On appeal to the High Court of Judicature for the North-Western Provinces these decisions were in all cases but two reversed and judgment entered for the plaintiff. The defendants having obtained the necessary certificate, now appeal to this Board in the six cases decided against them. At the trial before the District Judge the Law. Rep. 37 Ind. App. On appeal to the High Court of Judicature for the North-Western Provinces these decisions were in all cases but two reversed and judgment entered for the plaintiff. The defendants having obtained the necessary certificate, now appeal to this Board in the six cases decided against them. At the trial before the District Judge the Law. Rep. 37 Ind. App. 60 ( 1909- 1910) Imdad Ahmad V. Raja Pateshri Partap Narain Singh 15 oral evidence seems to have been taken on commission, and consequently the judge of first instance had no advantage over the High Court in hearing and seeing the witnesses, and this Board must deal with the appeal under the like conditions. The case for the plaintiff was rested on two grounds—first, that the property in question was part of the raj of Basti, which it wa3 alleged was a 1 impartible raj, descending to the eldest son according to the rules of strict primogeniture; and it was farther alleged that on the death of the Raja and the succession of his son to the raj a portion of the property was given to the brothers of the ruling Raja, who are called babus, as " hak babuai" or maintenance, and on failure of male issue of such brothers the property so given reverts to the raj after the death of the babus and their widows, if any. Under this custom the plaintiff alleges that the property in dispute reverted to the raj on the death, in the year, 1887, of the surviving widow of Babu Chet Singh, who was nephew of a former Raja—Raja Pirthipal Singh. The plaintiff also claimed to be entitled to the properties by virtue of a deed of assignment (sipurdnama) executed March 21, 1848, by Babu Chet Singh in favour of the then ruling Raja Indar Dawan Singh, and he relied also upon a " warasatnama " or will executed by Delahin Rup Kunwari, the surviving widow of Chet Singh, on January 6, 1858, in favour of his father, the late Raja Mahesh Sitla Bakhsh Singh. The trial judge held that the custom of the raj set up by the plaintiff was not proved. He also held that it was not proved that either the sipurdnama or the warasatnama was duly executed. The trial judge held that the custom of the raj set up by the plaintiff was not proved. He also held that it was not proved that either the sipurdnama or the warasatnama was duly executed. The High Court, without formally differing from his finding as to the custom, considered it unnecessary to decide the point, since it was common ground that the sipurdnama, if a genuine document, was decisive of the case. The property in dispute had undoubtedly been acquired by Chet Singh in his lifetime. He was said and, as the High Court held, proved to have sold some of it to his wife, Rup Kunwari. The warasatnama was therefore important not only as throwing confirmatory light on the sipurdnama, but as embracing the property said to have been thus disposed of by Chet Singh, so that the whole of the property in question, if both documents were genuine, passed quacunque via to the plaintiff. The High Court, after a very minute and elaborate examination of both the documents themselves, which they seem to have scrutinized much more closely than did the Court below, as well as the evidence in support of them, arrived at a clear conclusion that they were genuine documents and decisive of the case. They therefore reversed the decision of the Court below in six cases. Their Lordships agree with the conclusions and reasoning of the High Court, and will humbly advise His Majesty that these appeals be dismissed with costs.