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1961 DIGILAW 123 (PAT)

Bansidhar Pandey v. Masudan Singh

1961-11-06

R.K.CHOUDHARY, V.RAMASWAMI

body1961
Judgment 1. In the suit out of which this appeal arises the plaintiff alleged that 3.60 acres of land recorded under khatas 175 and 176 of village Kadwa was the occupancy kasht land of Brahamdeo Singh and his brothers Judgaldeo and Radha Mohan. It appears that Braharhdeo Singh gave a usufructuary mortgage of the land as karta of the joint family for a sum of Rs. 1000.00 for certain legal necessities to the plaintiff (sic). Later on there was a decree of the Central Co-operative Bank with regard to certain lands of Brahamdeo and his brothers, and in execution of the decree the Central Co-operative Bank purchased the property on the 4th May 1927, and obtained dakhaldehani. Thereafter Brahamdeo and his brothers parchased part of the lands hack from the Central Co-operative Bank. Certain other portions of the land purchased by the Central Co-operative Bank were sold to Bhrigun Singly including the mortgaged land in the present suit. The plaintiff purchased the entire area from Bhrigun Singh on the 16th April 1946 and came in possession. In Jeth 1353 Fasli, the plaintiff tendered the mortgage amount to the defendant, but the defendant refused to accept and there was a deposit of the amount in court under Section 83 of the Transfer of Property Act The plaintiff therefore, brought the present suit for redemption of the mortgage of the 7th June, 1925, with regard to 3.60 acres of land recorded in khatas 175 and 176. 2. The suit was originally brought for redemption of 3.21 acres of khata No. 175 regarding which the plaintiff had purchased equity of redemption by the sale-deed dated the 16th April 1946, from Bhrigun Singh. There was an objection taken by the defendant in the trial court that the mortgage deed comprised also an additional area of .39 acre. Thereafter the plaintiff amended the plaint and prayed for redemption of the entire area of 3.60 acres, including .39 acre of Khata No. 176. There was an objection taken by the defendant in the trial court that the mortgage deed comprised also an additional area of .39 acre. Thereafter the plaintiff amended the plaint and prayed for redemption of the entire area of 3.60 acres, including .39 acre of Khata No. 176. Both the trial court and the lower appellate court granted a decree for redemption to the plaintiff, but the learned Single Judge set aside the decrees of the lower courts and dismissed the suit of the plaintiff for redemption on the ground "that the owner of the equity of redemption for the area of .39 acre of khata No. 176 had not been impleaded in the mortgage suit In support of his decision the learned Single Judge of this Court relied upon Ramcharitar Sao V/s. Bawan Prasad Singh, AIR 1946 Pat 225. 3. On behalf of the plaintiff who has preferred this appeal under the Letters Patent the submission of the learned Government Advocate is that the learned Single Judge of the High Court has proceeded upon an erroneous view of the law and the plaintiff was entitled to a decree for redemption even though the owner of equity of redemption with regard to the area of .39 acre of khata No. 176 has not been impleaded. 4. In our opinion the argument of the learned Government Advocate is well founded and must be accepted as correct. Upon the findings of fact of the lower appellate court it is clear that the plaintiff has established his title of equity of redemption so far as 3.21 acres of khata No. 175 are concerned. It is also the admitted position that with regard to .39 acre of of khata No. 176 the equity of redemption still remains with the original mortgagors namely Brahamdeo, Jugaldeo and Radha Mohan who have not been impleaded in the suit. The legal position applicable to the case of this description has been recently set Out in a decision of a Division Bench of this Court in Mt. Raj Mohini Dehi V/s. Harihar Mahton, AIR 1958 Pat 67 . It was pointed out in that case that the rombined effect of Order 1, Rule 9 and Order 34. The legal position applicable to the case of this description has been recently set Out in a decision of a Division Bench of this Court in Mt. Raj Mohini Dehi V/s. Harihar Mahton, AIR 1958 Pat 67 . It was pointed out in that case that the rombined effect of Order 1, Rule 9 and Order 34. Rule 1 of the Code of Civil Procedure, in so far as mortgages are concerned, is that all persons whose rights and interests are adjudicated upon and determined in the suit are to be added as parties and that failure to add one or more such persons should not have the effect of defeating the suit, if the court, in their absence, can deal with the matters in controversy so far as regards rights and interests of the parties actually before it. In order to decide whether a suit can proceed in the absence of certain proper parties two tests have been laid down: (1) can the rights of the parties on the record be fully determined in their absence, and (2) can that determination be made necessarily affecting the rights of those absent? On behalf of the respondents reliance was placed on a decision of this High Court in Girwar Narain Mahton V/s. Mt. Makbulunnissa, 1 Pat LJ 468: (AIR 1916 Pat 310) where it was said that Order 1, Rule 9, Code of Civil Procedure, was subordinate to Order 34 Rule 1. The observation of the learned Judges to this effect in 1 Pat LJ 468: (AIR 1916 Pat 310) was not necessary for the decision of that case and was in the nature of obiter. In a subsequent case Sital Prasad Ray V/s. Asho Singh, ILR 2 Pat 175:(AIR 1922 Pat 651), Dawson-Miller, C. J. and Mullick, J. dissented from the dictum of their Lordships in the earlier case, 1 Pat LJ 468: (AIR 1916 Pat 310). and definitely laid down that Order 1, Rule 9, Code of Civil Procedure, was not subordinate to Order 34, Rule 1, and the earlier decision in 1 Pat LJ 468: (AIR 1916 Pat 610) can be explained on different principle. The case of 1 Pat LJ 468: (AIR 1916 Pat 310) was a case in which the original mortgagees had died and the suit was instituted by 21 plaintiffs describing themselves as the heirs of the original mortgagees. The case of 1 Pat LJ 468: (AIR 1916 Pat 310) was a case in which the original mortgagees had died and the suit was instituted by 21 plaintiffs describing themselves as the heirs of the original mortgagees. It turned out, however, that there, were other descendants of the mortgagees who had not been joined as parties up to the time when the case came up for trial, by which time the right to sue was barred by limitation. It was held that a mortgage was indivisible and if all the parties entitled to a share in the money due on the mortgage were not on the record, the suit must he wholly dismissed. It is manifest that the actual decision in that case is correct, but the observation with regard to the effect of Order 1, Rule 9, upon the provisions of Order 34, Rule 1, Code of Civil Procedure, was not necessary for the decision of that case. The decision of this Court in AIR 1946 Pat 225 was also relied upon by learned Counsel for the respondents in this case. But the material facts in that case were different from those in the present case. The learned Judges who decided that case relied upon the principle laid down by the High Court in ILR 2 Pat 175: (AIR 1922 Pat 651) and stated as follows: "All persons whose rights and interests may be adjudicated upon and determined in the suit ought to be added as parties but failure to add one or more such persons should not have the effect of defeating the suit if the Court, in their absence, can deal with the matters in controversy, so far as regards the rights and interest of the parties actually before it. Whether the Court can do so or not must depend upon whether the presence of those not added is essential to enable the Court to adjudicate on the rights and interest of those actually before it. It is a fundamental rule of procedure that the Court cannot, by its decree, affect the rights of those who are not parties to the suit. If, therefore, no decree can be passed without affecting the right of absent parties the suit cannot proceed in their absence and should be dismissed". It is a fundamental rule of procedure that the Court cannot, by its decree, affect the rights of those who are not parties to the suit. If, therefore, no decree can be passed without affecting the right of absent parties the suit cannot proceed in their absence and should be dismissed". But on the special facts of that case the learned Judges were of the view that the co-mortgagees who were left nut of the suit were necessary parties to the case and the plaintiffs failure to implead them may well have prejudiced the case of those defendants who have been actually impleaded, and the suit must be dismissed, therefore, in its entirety. The decision of the case in AIR 1946 Pat 225 was therefore, a decision upon the special facts of that case aS we have already said, the material facts in the present case are different and we think that the present case falls within the principle laid down by this Court in AIR 1958 Pat 67 . We accordingly hold that the failure of the plaintiff to implead the owners of the equity of redemption with regard to .39 acre of khara No. 176 is not fatal to the suit for redemption and the view taken by the learned Single Judge of this High Court is erroenous and must be overruled, The result, therefore, is that the decree of the Single Judge of this High Court dated, the 1st May, 1956, must be reversed and the decree of the lower appellate court giving the plaintiff a decree for redemption of the entire area of 3.60 acres of land and also mesne profits with effect from the date of deposit under Section 83 of the Transfer of Property Act must be restored. We accordingly allow this appeal under the Letters Patent, and restore the decree of Addl. Sub-Judge Arrah D/- 9-9-1950 but there will be no order as to costs of this Letters Patent Appeal.