RAJABIBI v. S. AMEERALI — 1974 DIGILAW 12 (KAR)

( 1 ). This is a second appeal by the legal representatives of the first defendant against the decree passed by the Civil Judge, Bangalore in R. A. 45 of 1969, reversing the decree passed by the Munsiff, Ramanagaram in O. S. No. 171 of 1966. ( 2 ) THE first respondent-plaintiff instituted the suit for a declaration that he is the owner of the suit property and for permanent injunction or in the alternative for possession and for cancellation of the khata in respect of the suit site made by the second defendant in favour of the first defendant and for an appropriate direction to the second defendant to change the khata of the suit in the name of the plaintiff. The case of the plaintiff is that the suit property belonged to one Syed Yedulla. He died in the year 1944. His further case is that on his death, his two sons Syed yacoob and Syed Mohammed became the owners of the suit property and were in possession of the samp. It is further averred that the said two brothers sold the suit property in favour of the plaintiff on the 15th of june, 1960. It is his further case that the second defendant the Municipality did not change the khata in spite of his request and maintained khata in the name of the first defendant. Though there is also a prayer for injunction, the prayer that was pressed by the plaintiff was the praver for declaration of title and possession and not for a permanent injunction the first defendant resisted the suit on various grounds. While admitting that Syed Yedulla was the original owner of the suit property, he contended that Syed Yedulla and his wife conveyed the suit property and another property in favour of one Syed Bakar on the 10th of august, 1942 and that the said Syed Bakar in turn sold the suit property to the first defendant on the 20th of June, 1954, under the sale Ext. D1. The case of the first defendant is that he is in possession and enjoyment of the suit property ever since he purchased the same from Syed Bakar. The court of first instance dismissed the suit of the plaintiff. D1. The case of the first defendant is that he is in possession and enjoyment of the suit property ever since he purchased the same from Syed Bakar. The court of first instance dismissed the suit of the plaintiff. On appeal, the learned Civil Judge has made a decree in favour of the plaintiff declaring that the plaintiff is the owner of the suit property and directing the first defendant to deliver possession along with mesne profits. He has directed enquiry regarding mesne profits under Order 20, Rule 12 (1) (c) of the CPC. It is the said decree that is challenged by the legal representatives of the first defendant. ( 3 ) THE first contention that was urged by Shri Kadidal Manjappa, learned Counsel appearing for the appellant, is that the suit is not maintainable in the absence of the other co-sharers. It has come in evidence that Syed Yedulla died in the year 1944 leaving behind him his widow, his two sons Syed Yacoob and Syed Mohammed and two daughters. The widow died a couple of years thereafter, leaving behind her two sons and two daughters. As Syed Yedulla was admittedly the owner of the suit property. on his death it is not only the two sons that could succeed to his estate. His wife as well as his two daughters would also become sharers. It is, therefore, clear that immediately-after the death of Syed Yedulla not. only his two sons but also his widow and two daughters have inherited the propertv as co-sharers. As far as these facts are concerned, they are not in challenge before me. The plaintiff has claimed exclusive title In himself to the suit property on the basis of the sale deed executed by syed Mohammed and Sved Yacoob on the 15th of January 1960. The plaintiff has not filed the suit for and on behalf of the other co-sharers. It is now the admitted position that the first defendant was in possession of the suit propertv on the date of suit. In view of these circumstances, it was contended that the suit as now brought without impleading the other co-sharers is not maintainable. The plaintiff has not filed the suit for and on behalf of the other co-sharers. It is now the admitted position that the first defendant was in possession of the suit propertv on the date of suit. In view of these circumstances, it was contended that the suit as now brought without impleading the other co-sharers is not maintainable. The Supreme Court has in Kanakarathanammal v. Loganatha Mudaliar, AIR 1965 SC 271 , held that when there are other co sharers in respect of the suit properties, the suit by one of the co-sharers alone without impleading the other corsharers is not maintainable. Their Lordships held that as the other co-sharers are necessary parties to the suit, non-impleading of them is a fatal defect find that the provisions of Order 1, Rule 9 CPC do not save such a suit. The said decision was considered by this Court in Shivangouda v. Gangawwa, (1966) 2 Mys. L. J. 148. Justice Hegde (as he then was) held that a suit for ejecting a trespasser by one of the co-owners, without impleading the other co-owners is maintainable and the decision of the Supreme Court in Kanakarathanammal's case (1) was distinguishable. His Lordship held that if a suit is. brought by one of the co-sharers for ejectment against a trespasser, it would be maintainable without impleading the co-sharers as a party, provided the co-sharer who has instituted the suit has not repudiated the right of the other co-sharers but has claimed relief for the benefit of all the co-sharers. It, therefore, follows that if one of the co-sharers instituted a suit for ejecting against a trespasser, repudiating the claim of the ether co-sharers and claiming exclusive title in himself, such a suit would not be maintainable in the absence of the other co-sharers. It is because on the facts his Lordship Justice Hegde came to the conclusion that the suit in that case must be regarded as having been brought by the plaintiff without repudiating the rights of other co sharers that it was held that the suit was maintainable. It is because on the facts his Lordship Justice Hegde came to the conclusion that the suit in that case must be regarded as having been brought by the plaintiff without repudiating the rights of other co sharers that it was held that the suit was maintainable. But, in the present case, the plaintiff has claimed exclusive title in himself and has brought the suit for a declaration that he is exclusive owner of the property and for possession, repudiating the claim of the other co-sharers, Hence, the dictum laid down by the supreme Court in Kanakarathananmal's case (1) applies to the facts of the present case, I have, therefore, to hold that in the absence of the other co-sharers, the suit is not maintainable. ( 4 ) BUT, it was maintained by Shri Papanna that as the objection regarding the non-impleading of the other co-sharers was not taken by the defendant in the Court of first instance, I should not permit the appellant to raise such a contention for the first time in second appeal. But, it has to be pointed out that in Kanakarathanammal's case (1) the Supreme court held that non-impleading of the co-sharers in a suit of this nature is a fatal defect, as the co-sharers are not only proper parties but are necessary parties. The Supreme Court further held that in the absence of other co-sharers, the plaintiff alone would not be entitled to claim any relief against the defendant. As the defect is of a fatal character, the failure on the part of the defendants to raise an objection in the Court of first instance is not sufficient to justify repelling the contention raised by the appellants. But, as such a contention was not raised in the Court of first instance, it is more appropriate to give an opportunity to the plaintiff to amend his plaint and to implead the other co-sharers as parties. The decrees passed by the Courts below in the absence of necessary parties, viz. , the co-sharers have, therefore, to be set aside. But, as such a contention was not raised in the Court of first instance, it is more appropriate to give an opportunity to the plaintiff to amend his plaint and to implead the other co-sharers as parties. The decrees passed by the Courts below in the absence of necessary parties, viz. , the co-sharers have, therefore, to be set aside. ( 5 ) FOR the reasons stated above, this appeal is allowed and the judgment and decree passed by the Court below are set aside and the case is remitted back to the Court of first instance with a direction to the Court of first instance to give the plaintiff two months time to amend the plaint and to implead the other co-sharers as parties to the suit and to proceed to dispose of the suit on merits afresh. If the plaintiff fails to apply for amendment of the plaint within two months to be granted by the Court of first instance, the Court of first instance shall proceed to dismiss the suit. Having regard to the circumstances of the case, the parties are directed to bear their respective costs in this Court as well as in the two Courts below. --- *** --- .