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1997 DIGILAW 337 (HP)

RUMAL SINGH v. JANAK SINGH

1997-08-13

P.K.PALLI

body1997
JUDGMENT P.K. PALLI, J.—The plaintiffs/appellants have filed the second appeal feeling aggrieved from the judgment of reversal. The parties, hereinafter in this judgment, shall be referred to as plaintiffs and defendants. 2. The suit out of which the present appeal has arisen, was filed by the plaintiffs claiming possession of one-half share of the land in question by way of redemption. 3. The defendants while resisting the suit, denied the factum of mortgage and claimed themselves to be owners in possession for over forty years. 4. The learned trial Court, on appreciation of the material placed on record by the parties, held that the suit land was mortgaged to the defendants for Rs. 125/-on 28-8-1957 by the father of the plaintiffs. The plaintiffs further examined Rurnal Singh and Fakir Singh as PW1 and PW-2 in further support of their pleas raised in the suit. Ext. P-1 is the mutation in respect of the mortgage which was attested on 28-8-1957. 5. The claim of adverse possession set up by the defendants was not accepted and issue on this point was decided against them. It was also found that the suit having been filed on 31-7-1987, was well within time of the prescribed limit of thirty years. Resultantly, the suit was ordered to be decreed on payment of mortgage amount. 6. Aggrieved against the judgment and decree, an appeal was filed by the defendants which stands accepted resulting in the dismissal of the suit. The learned first appellate Court accepted the appeal on the ground that there we certain other co-owners who had not been joined as parties to the suit and, therefore, the suit was bad for non-joinder of necessary parties. Other points have not been examined by the learned first appellate Court. 7. Interestingly, no issue in respect of non-joinder of necessary parties was framed by the learned trial Court and amazingly, the question has been framed by the learned first appellate Court for the first time in an appeal and it is only that question which has been considered in the impugned judgment. Learned counsel for the appellants points out that there is no such plea raised by the defendants that the suit is bad for non- joinder of necessary parties. 8. In para 10 of the judgment passed by the learned trial Court, it has been observed that on perusal of Ext. Learned counsel for the appellants points out that there is no such plea raised by the defendants that the suit is bad for non- joinder of necessary parties. 8. In para 10 of the judgment passed by the learned trial Court, it has been observed that on perusal of Ext. P-1, Jaram Singh alongwith other owners is recorded in the column of ownership as well as possession. It has been further observed that only heirs of Jaram Singh have filed the suit without impleading other co-sharers who have one-half share of the property in their name. In my considered view, the learned first appellate Court has certainly gone wrong in dismissing the suit filed by the plaintiffs on that ground. In a redemption suit, it is not necessary that all the co-owners should be joined as plaintiffs. Moreover, no such plea was raised by the defendants in their written statement nor any such issue was raised before the learned trial Court. 9. The judgment passed by the learned first appellate Court is consequently set aside and the one passed by the learned trial Court is upheld. The appeal is allowed. There shall, however, be no order as to costs. Appeal allowed.