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2015 DIGILAW 162 (CHH)

Manohar Shesh v. Shakuntala Devi

2015-06-15

SANJAY K.AGRAWAL

body2015
JUDGMENT : Sanjay K. Agrawal, J. 1. By this second appeal preferred under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC'), the appellants herein have challenged the legality and propriety of the judgment & decree passed by District Judge, Raipur in Civil Appeal No. 2-A/2007, reversing the judgment and decree passed by 8th Additional Civil Judge, Class-2, Raipur in Civil Suit No. 193-A/97. The substantial questions of law involved, formulated and to be answered in the second appeal preferred by appellants herein are as under:- "(1) Whether the suit preferred by the plaintiffs was maintainable in its present form? (2) Whether the First Appellate Court has properly considered the applicable legal principles while setting aside the judgment and decree passed by the trial Court?" 2. In order to answer the aforesaid substantial questions of law, the imperative facts required to be noticed are as under:- "(For the sake of convenience, parties will be hereinafter referred to as per their status shown in the plaint)" 2.1. The following genealogical tree would demonstrate the relationship among the parties:- Gajanand Rao Shesh = Sushila Bai ( Wife) (Died on 19.11.2011) Manohar Shesh (Appellant No.1) Vasant kumar Shesh (Appellant No.2) Chandrasshekhar Shesh Shakuntala Devi Shesh (Plaintiff No.1) Shashikala Shesh (Plaintiff No.2) Shrireesh Shesh (Appellant no.3) Ashish Shesh (Appellant No.4) Originally the suit property was held by late Gajanand. Rao Shesh and after his death, it was inherited by his widow late Smt. Sushila Bai. The plaintiffs/respondents No. 1 and 2 filed the civil suit seeking declaration of their title and permanent injunction stating inter alia that late Smt. Sushila Bai i.e., their mother had executed a will in their favour on 07.02.2001 bequeathing the entire suit property in their favour and it was further pleaded that there was previous partition on 09.07.1980 in the life time of their father and as such the subject suit property fell in share of late Gajanand Rao Shesh and after death of Gajanand Rao Shesh, plaintiffs' mother Smt. Sushila Bai became title holder. It was further pleaded that on strength of will, they claimed for mutation which was denied by concerned Patwari which has given them cause of action in their favour to seek declaration to this effect that they are title holders of the suit land and they also sought relief of permanent injunction. It was further pleaded that on strength of will, they claimed for mutation which was denied by concerned Patwari which has given them cause of action in their favour to seek declaration to this effect that they are title holders of the suit land and they also sought relief of permanent injunction. The suit was filed by the plaintiffs/respondents No. 1 and 2 impleading public at large and State of Chhattisgarh through Collector, Raipur as party defendants. The defendants No. 1 and 2/respondents No. 3 and 4 proceeded ex parte as they did not appear before the trial court despite service of summons by trial court. 2.2. The suit filed by the plaintiffs before the trial Court was dismissed by judgment and decree dated 18.07.2007 finding inter alia that the plaintiffs have not impleaded the person denying their title and person interested to deny their title, and as such the suit was not maintainable and it is further held that the plaintiffs ought to have filed the suit under the provisions of the Indian Succession Act, 1925 for obtaining succession certificate based on Section 30 of the that Act. 2.3. Questioning the judgment and decree passed by the trial Court dismissing the suit, the respondents No. 1 and 2/plaintiffs preferred the First Appeal before the First Appellate Court. The First Appellate Court by its judgment dated 13.09.2007 allowed the appeal partly holding that the respondents No. 1 and 2/plaintiffs are entitled only for declaration of decree as claimed in the suit as party defendants namely public at large and State of Chhattisgarh have no objection in granting relief, but declined to grant decree for permanent injunction in favour of respondent No. 1 and 2/plaintiffs. 2.4. The present appellants No. 1 and 2, being brothers of plaintiffs/respondents No. 1 and 2 and appellant No. 3 and 4 who were not parties in the suit and first appeal have preferred the second appeal questioning the judgment and decree passed by the First Appellate Court after obtaining leave of this Court to prefer appeal, stating that the judgment and decree passed by the First Appellate Court is prejudicial to their interest. This Court by order dated 02.12.2010 granted leave to appeal and thereafter formulated the above-quoted substantial questions of law in the second appeal for determination, this is how this second appeal is before this Court. 3. Mr. This Court by order dated 02.12.2010 granted leave to appeal and thereafter formulated the above-quoted substantial questions of law in the second appeal for determination, this is how this second appeal is before this Court. 3. Mr. B.P. Sharma, learned counsel appearing for the appellants while criticizing the judgment and decree of the first Appellate Court would submit that the first appellate court was absolutely unjustified in granting decree under Section 34 of the Specific Relief Act, as the suit was instituted for declaration of title and there was no person denying or interested to deny the alleged title of plaintiffs/respondent No. 1 and 2. He would further submit that public at large and State of Chhattisgarh have been impleaded as party defendants and as such the suit as framed and filed by the plaintiffs was not maintainable in law and decree for declaration of title ought not to have granted by the first appellate court. He would further submit that the present appellants having direct interest in the subject suit property ought to have been impleaded as the party -defendants in the suit as they were necessary party in the suit and in their absence, no effective decree could be passed and would lastly submit that the first appellate court has reversed the finding recorded by the trial Court without meeting with the reasonings recorded by the trial court for dismissing the suit and as such the judgment and decree passed by the first appellate Court deserves to be set aside and the judgment and decree passed by the trial Court be restored with cost. 4. Mr. H.B. Agrawal, learned Sr. Advocate assisted by Ms. Preeti Yadav, on behalf of respondent No. 1/plaintiff while countering the submissions made by learned counsel for the appellants, would submit that the first appellate Court was absolutely justified in granting decree for declaration as the plaintiffs were not required to implead the present appellants herein as party - defendants in the suit as the Revenue Officer had denied the mutation of subject suit land in favour of plaintiffs, by which cloud is cast upon their title, which forced them to file suit for declaration of title and permanent injunction. He would further submit that in order to get a decree of declaration of title which has effect of a judgment in rem, the present suit was filed, which was dismissed by trial court, recording a perverse finding, but the first appellate court rightly allowed the appeal and reversed the decree of the trial Court and granted decree for declaration of title in favour of respondents No. 1 and 2/plaintiffs, in which no interference is warranted as substantial questions of law formulated doesn't arise for consideration. 5. Mr. Kishore Bhaduri, learned counsel for respondent No. 2/plaintiff while adopting the arguments of learned Sr. Advocate appearing for respondent No. 1/plaintiff would submit that the first appellate Court is perfectly justified in granting the decree as the grant or refusal of decree for declaration is purely discretionary in nature and the first appellate Court finding that the plaintiffs are entitled for discretionary relief of declaration rightly granted them as such second appeal preferred by appellants, deserves to be dismissed. 6. I have heard the learned counsel for the parties at length and have also perused the records of the civil suit as also the first appeal with utmost circumspection. 7. A suit for declaration and injunction is governed by Specific Relief Act, 1963 (for short 'Act, 1963'). The grant of specific relief of declaration or injunction, is a discretionary remedy. Section 34 provides for discretion of Court as to declaratory decree, which states as under:- "34. Discretion of Court as to declaration of status or right - Any person entitled to any legal character, or to any right to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee." 8. Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee." 8. The object of Section 34 of Specific Relief Act is obviously to provide a perpetual bulwark against adverse attacks on the title of the plaintiff and to perpetuate and strengthen his title and to prevent further litigation by removing the existing cause of controversy and to see that he or she is allowed to enjoy the property peacefully. In other words, if a cloud is cast upon the title of the plaintiff by denial of his legal character or right or by execution of any document which, if left outstanding would militate against such legal character or right and if some steps are not taken at once to have the doubts and difficulties removed, it may, at a later time, create difficulties for the plaintiff to prove his legal character or right as the evidence that is available now may not be forthcoming hereinafter. 9. The grant of specific relief of declaration or injunction is a discretionary remedy. The requisites for a declaratory suit are well known. In order to obtain relief of this kind, the plaintiff must establish that:- "(i) the plaintiff is at the time of the suit entitled to any legal character or any right to any property; (ii) the defendant has denied or is interested in denying the character or the title of the plaintiff; (iii) the declaration that the plaintiff is entitled to a legal character or to a right to property, and (iv) plaintiff is able to seek further relief than a bare declaration of his title, he must seek such relief. If one of the three condition are not fulfilled, the suit should be dismissed, but even if all these conditions are fulfilled, the Court has still a judicial discretion to grant or not to grant a declaratory relief depending on the circumstances of each case." 10. A Judicial Committee of Privy Council in Sheoparsan Singh v. Ramnandan Singh AIR 1916 PC 78 has held that "A plaintiff coming under this section must therefore be entitled to a legal character or to a right as to property. A Judicial Committee of Privy Council in Sheoparsan Singh v. Ramnandan Singh AIR 1916 PC 78 has held that "A plaintiff coming under this section must therefore be entitled to a legal character or to a right as to property. It was further observed that "This use of declaratory suits illustrates forcibly the warning in Narain Mitter v. Kishen Soondorv Dasee (1872) Ind App Sop. Vol. 149, 162 (PC), where it was said: There is so much more danger in India than here of harassing and vexatious litigation that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation. 11. Their Lordships of the Supreme Court in case of Razia Begum v. Sahebzadi Anwar Begum & others, AIR 1958 SC 886 while considering Section 42 of the, Specific Relief Act, 1877 (which is corresponding to Section 34 of Act of 1963) held as under:- "23. No allegation made in the pleadings even remotely suggests that respondents 1 and 2 were interested to deny the alleged marriage of the appellant to respondent No. 3 or were denying the same. Under S.42 of the Specific Relief Act a suit may be instituted against any person denying or interested to deny the plaintiffs legal character or right to any property. The plaint does not suggest that respondents 1 and 2 were denying the appellant's status as wife of respondent No. 3. Such an issue was raised by the appellant against respondent No. 3 only. In law, it cannot be said that respondents 1 and 2 are interested to deny the status of the appellant as the wife of respondent No. 3 because the status of respondent No. 1 as wife and respondent No. 2 as the son of respondent No. 3 is not in the least affected even if the appellant is declared to be the wife of respondent No. 3 as under the Mohammedan law respondent No. 3 is entitled to have both the appellant and respondent No. 1 as his wives and children through them." 12. Thus, a meaningful reading of the provisions contained in Section 34 of the Act and applying the principle enunciated by the Supreme Court in Razia Begum, AIR 1958 SC 886 (supra) it is manifest that Section 34 of the Specific Relief Act provides in general terms that any person entitled to any legal character or to any right to property may institute a suit against any person denying or, interested to deny, his title to such character or right, and the Court may in its discretion, make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. A suit can be instituted not only against the person denying, but even against one merely interested to deny. The cause of action arises only when the denial occurs, or when the plaintiff apprehends that the defendant may actually deny. A wish or intention to interfere with his rights does not constitute a cause of action. There must be something in the case either in the nature of an invasion of some right, or in the shape of an impediment or obstacle in the way of full enjoyment of proprietary right, to found a claim to a declaratory decree; but a mere allegation, or a mere threat without action taken or founded upon it, will not be sufficient to entitle a party to a declaration of his title. The plaintiff must make out, to the satisfaction of the Court, some act done by the defendant which is hostile to and is an invasion of his right. 13. The plaintiff must make out, to the satisfaction of the Court, some act done by the defendant which is hostile to and is an invasion of his right. 13. After having examined the scope and ambit of provision enumerated in Section 34 of the Act, 1963 and requisites of declaratory suit, turning back to the factual score of the instant case, it would appear that plaintiffs - Smt. Shakuntala Devi & Smt. Shashi Kala have filed a suit for declaration of their title and permanent injunction claiming that by virtue of Will dated 07.02.2001 executed by their mother in their favour, they are title holder of the subject suit property and they are entitled for declaratory decree, so clearly, the first ingredient of Section 34 of Act of 1963, that the plaintiffs are claiming entitlement of right to the property is available, but going further with the plaint it appears that plaintiffs have only impleaded firstly General Public at large, secondly State of Chhattisgarh as party defendants in the suit and has not stated anything that defendants therein namely General Public at large & State of Chhattisgarh have denied their title or they are interested to deny their title except stating that when the plaintiffs claimed mutation based on will, then the concerned Halka Patwari has refused to make mutation of the land in their favour. Thus, refusal to mutation may not amount to denial of title as the act of mutation itself confers no right, title or interest in the property, it is only for the fiscal purpose and that is done for the purpose of collection of revenue and to keep the record straight. So if cannot be held that the General-Public at large/State of Chhattisgarh has either denied their title or interested to deny their title. So if cannot be held that the General-Public at large/State of Chhattisgarh has either denied their title or interested to deny their title. Even otherwise, denying the mutation is always subject to judicial review before the superior revenue authority and it cannot be said that their title has been denied; and since the defendants impleaded therein in the suit have neither denied their title nor interested to deny their title, merely on the basis of refusal to mutate their names, plaintiffs cannot maintain a suit for declaration as declaration is something, which the person is entitled thereto and, as such, the second ingredient of Section 34 of the Act, 1963 to claim declaration is absolutely missing in the instant case and in absence of one of essential requisite for grant of decree for declaration of title, the plaintiff's suit for declaration of title ought not to have been decreed by the first appellate court and the said court has committed grave legal error in decreeing the suit by reversing the decree of trial court dismissing the suit. 14. The determination of the above question brings me to the next question as to whether decree for declaration granted by the first appellate court in absence of the appellants in the suit as party defendants is in accordance with law? 15. By virtue of Section 35 of the Specific Relief Act, 1963 declaration granted under Section 34 of Act, 1963 is binding only between the parties to the suit and the decree of declaration is only a right in personam and not a right in rem. Section 34 of the Act states as under:- "35. Effect of declaration- A declaration made under this Chapter is binding only on the parties to suit, persons claiming through them respectively and where any of parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees." 16. Section 35 of the Specific Relief Act, 1963 makes it clear that a declaration made under Section 34does not operate as a judgment in rem. A declaratory decree does bind:- "(a) the parties to the suit; (b) person claiming through parties to the suit; and (c) where any of the parties are trustees, of the person from whom, if in existence at the date of the declaration, such parties will be trustees." 17. A declaratory decree does bind:- "(a) the parties to the suit; (b) person claiming through parties to the suit; and (c) where any of the parties are trustees, of the person from whom, if in existence at the date of the declaration, such parties will be trustees." 17. Way back in the year 1958, Their Lordships of the Supreme Court in the case of Razia Begum, AIR 1958 SC 886 (supra), while considering the effect of, declaration granted under Section 43 of the Specific Relief Act, 1867 (Corresponding to Section 35 of Specific Relief Act, 1963) held as under:- "12. When a declaratory judgment has been given, by virtue of S. 43; it is binding not only on the persons actually parties to the judgment but their privies also, using the term 'privy' not in its restricted sense of privy in estate, but also privy in blood. Privity may arise (1) by operation of law, for example, privity of contract; (2) by creation of subordinate interest in property, for example, privity in estate as between a landlord and a tenant, or a mortgagor and a mortgagee; and (3) by blood, for example, privity in blood in the case of ancestor and heir. Otherwise, in some conceivable cases, the provisions of S.43, quoted above, would become otiose. The contention raised on behalf of the appellant, which was strongly supported by the third respondent through Mr. Pathak, as stated above, is that a declaratory judgment would not bind anyone other than the party to the suit unless it affects some property, in other words, unless the parties were privy in estate. But such a contention would render the provisions of S. 43 aforesaid, applicable only to declarations in respect of property and not declarations in respect of status. That could not have been the intendment of the statutory rule laid down in S. 43. Sections 42 and 43, as indicated above, go together, and are meant to be coextensive in their operation. That being so, a declaratory judgment in respect of a disputed status, will be binding not only upon the parties actually before the Court, but also upon persons claiming through them respectively. The use of the word 'only' in S. 43, as rightly contended on behalf of the appellant, was meant to emphasize that a declaration in Chap. VI of the Specific Relief Act, is not a judgment in rem. The use of the word 'only' in S. 43, as rightly contended on behalf of the appellant, was meant to emphasize that a declaration in Chap. VI of the Specific Relief Act, is not a judgment in rem. But even though such a declaration operates only in personam, the Section proceeds further to provide that it binds not only the parties to the suit, but also persons claiming through them, respectively. The word 'respectively' has been used with a view to showing that the parties arrayed on either side, are really claiming adversely to one another, so far as the declaration is concerned. This is another indication of the sound rule that the Court, in a particular case where it has reasons to believe that there is no real conflict, may, in exercise of a judicial discretion, refuse to grant the declaration asked for oblique reasons." 18. Thus, in the above-referred judgment Rajia Begum, AIR 1958 SC 886 (supra), their Lordships of the Supreme Court has clearly held that the result of declaratory decree is binding not only to the parties but their privies also, and privity in blood which may arise, in case of ancestor and heir. 19. It is the case of the present appellant No. 1 and 2 that the plaintiffs are there sister and it is the property of their mother late Smt. Sushila Bai they have the right, title, and interest in suit property and without impleading them in the suit a decree for declaration has been obtained beyond their back which is likely to prejudice them seriously for all the times and generations to come. 20. The Supreme Court, in the matter of Razia Begum, AIR 1958 SC 886 (supra), has construed the Order 1 Rule 10(2) of the CPC and the result of consideration and principles culled out, have been catalogued in paragraphs 13 & 14 of judgment, which read thus:- "13. 20. The Supreme Court, in the matter of Razia Begum, AIR 1958 SC 886 (supra), has construed the Order 1 Rule 10(2) of the CPC and the result of consideration and principles culled out, have been catalogued in paragraphs 13 & 14 of judgment, which read thus:- "13. As a result of these considerations, we have arrived at the following conclusions: (1) That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code; (2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation; (3) Where the subject-matter of the litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy; (4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Sections 42 & 43 of the Specific Relief Act; (5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission; (6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the Court, but generations to come, and in view of that consideration, the rule of 'present interest', as evolved by case law relating to disputes about property does not apply with full force; and (7) The rule laid down in Section 43 of the Specific Relief Act, is not exactly a rules of res judicata. It is narrower in one sense and wider in another. 14. Applying the proposition enunciated above to the facts of the instant case, we have come to the conclusion that the courts below did not exceed their power in directing the addition of the respondents 1 and 2 as parties-defendants in the action. Nor can it be said that, the exercise of the discretion was not sound. Furthermore, this case comes before us by special leave, and we do not consider that it is a fit case where we should interfere with the exercise of discretion by the courts below. The appeal is, accordingly, dismissed. As regards the question of costs, we direct that it will abide the ultimate result of the litigation, and will be disposed of by the trial Court." 21. Thus, it is transparently clear that necessary party is one without whom no effective decree can be made and proper party is one in whose absence, an effective decree can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 22. Similarly, the Supreme Court in case of Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Hotels Pvt. Ltd. & Ors., 2010 (7) SCC 417 considering a plea as to whether the appellant is necessary or proper party to a suit for Specific Performance, has held as under:- "13. The general rule in regard to in impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But his general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (the "Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: 10(2). Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But his general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (the "Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below: 10(2). Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and no such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or 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, be added." 14. The said provisions makes it clear that a Court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party; (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) party person whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the Court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. 15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court, If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the Court has no jurisdiction to implead him, against the Wishes of the plaintiff, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. 23. This Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import reiterated in SCG p. 96, para 20 class definition of "discretion" by Lord Mansfield in R. v. Wilkes (ER p.334) that "discretion" "When applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful; but legal and regular." 23. Further, in the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay & others, 1992 (2) SCC 524 , their Lordships of the Supreme Court has held that a person to be joined, he must have a direct or legal interest in the action. In other words, he must show that the litigation may lead to a result which would affect him legally by interfering or adversely affecting his legal right or legally protected interest. Relevant paragraph of the report states as under:- "It cannot be said that the main object of the rate is to prevent multiplicity of actions though it may have incidentally have that effect. But that appeared to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary (sic) is not merely that he has relevant evidence to give on some of the questions involved; that would only make him, a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of arguments to advance. What makes a person a necessary (sic) is not merely that he has relevant evidence to give on some of the questions involved; that would only make him, a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e. he can say that the litigation may lead to a result which will affect him legally, that is, by curtailing his legal right. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action." 24. It is relevant to mention here that the primary object of Order 1 Rule 10(2) of the Code of Civil Procedure is to bring before the Court at one and the same time all the persons interested in the dispute so that all the controversies in the suit may be finally determined once and for all in the presence of the parties without delay, inconvenience and expenses of several actions, trials and inconclusive adjudication. Notwithstanding the fact that the said provision confers wide discretion but such discretion has to be exercised judicially and on sound legal principle. The said power can be exercised on either of the two grounds:- "(a) Such person ought to have been joined, either as a plaintiff or as a defendant, but is not so joined; or (b) Without his presence, the question involved in the suit cannot be decided finally and effectively." 25. The said power can be exercised on either of the two grounds:- "(a) Such person ought to have been joined, either as a plaintiff or as a defendant, but is not so joined; or (b) Without his presence, the question involved in the suit cannot be decided finally and effectively." 25. Examining the facts of the case in anvil of law laid down in the aforesaid cases, it would appear that present appellant No. 1 and 2, being the brother of the plaintiffs, have claimed direct interest in the suit property refuting the will in favour of the plaintiffs by Smt. Sushila Bai, their mother and they have claimed direct interest in the suit property and their legal interest would likely to the prejudiced if the decree granted by the first appellate court is allowed to stand as it is as such, the present applicants were not only the proper party but were necessary party in the suit and their presence in the suit was absolutely necessary for just and proper decision in the suit and no effective decree could have passed in their absence as party defendant in the suit and to avoid multiplicity of litigation and to decide the dispute effectively and properly the presence of appellants were absolutely necessary in the suit as such suit as framed and filed was bad for the non-joinder of necessary party. Thus, the substantial question of law No. 1 is answered that the plaintiffs' suit was not maintainable in the present form for the reasons that declaration could not be granted unless the defendants are the persons denying or interested to deny the plaintiffs' title and also for the reason that decree granted would be binding upon them by virtue of Section 35 of the Act of 1963 and as such the suit as framed and filed without impleading them as a party defendant would not be bad for non-joinder of necessary party, thus, the first appellate court has committed grave legal error in reversing the decree, of trial court. 26. The submission made by learned Senior counsel for the respondent/defendant No. 1 is that it flows from nature of the suit and relief claimed that the suit can be treated as an petition for letters of administration made under the provisions of Indian Succession Act and relief can be moulded accordingly and as such appeal is liable to be dismissed. The submission made by learned Senior counsel for the respondent/defendant No. 1 is that it flows from nature of the suit and relief claimed that the suit can be treated as an petition for letters of administration made under the provisions of Indian Succession Act and relief can be moulded accordingly and as such appeal is liable to be dismissed. It is well settled law that suit for declaration of title/permanent injunction cannot be converted in the petition for letters of administration. In a decision reported in T. Venkat Narayana v. Smt. Venkat Subamma and others, AIR 1996 SC 1807 their Lordships of the Supreme Court has held that mere suit for injunction cannot be converted in a suit for probation of will as probate of the will is granted by Court having competency and jurisdiction according to the procedure provided under the Indian Succession Act, therefore the submission raised by learned Senior counsel in this behalf cannot be accepted. Answer to substantial question of law No. 2. 27. The determination of the, first substantial question of law brings me to the next substantial question of law as to whether the First Appellate Court has properly considered the applicable legal principles while setting aside the judgment and decree passed by the trial court. 28. In the matter of Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179 , their Lordships of the Supreme Court has laid down the law relating to duty of the first appellate court being the final court of facts while reversing the decree of the trial court, which states as under:- "While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai) The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one." 29. Similarly, in the matter of Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 , their Lordships of the Supreme Court has laid down the relevant factors, which should be kept in mind by the First Appellate Court before reversing the judgment of the trial Court and held as under: "Three requisites should normally be present before an appellate court reverse a finding of the trial Court: (i) it applies its mind to reasons given by the trial Court; (ii) it has no advantage of seeing and hearing the witnesses; and (iii) it records cogent and convincing reasons for disagreeing with the trial court." 30. Reverting back to the facts of the present case it would appear that trial court after appreciating and considering the material brought on record by the plaintiffs, reached to the categorical conclusion that defendants have not denied plaintiffs title and even not interested to deny their title and as such the one of the essential requisite for granting the decree for declaration under Section 34 of Act is not available, not only this, trial court further reached to the conclusion that the sons of the late Smt. Sushila Bai present appellant No. 1 and 2 herein ought to have been impleaded is party defendants in the suit and as such the plaintiffs suit being not maintainable dismissed the same. 31. In a appeal preferred by plaintiffs the first appellate court recorded a finding that the late Smt. Sushila Bai has executed a will in favour of plaintiffs on 07.02.2001 and on strength of said will plaintiffs have acquired their title over suit land and on which State of Chhattisgarh and public at large have not raised any objection and as such plaintiffs are entitled for decree for declaration of title in their favour. The first appellate court neither considered it proper either to meet with the reasonings recorded by the trial court for dismissing the suit nor reversed the finding of the trial court after by giving valid and convincing reasons for dis-agreeing with the reasonings recorded by the trial court for dismissing the suit. The first appellate court neither considered it proper either to meet with the reasonings recorded by the trial court for dismissing the suit nor reversed the finding of the trial court after by giving valid and convincing reasons for dis-agreeing with the reasonings recorded by the trial court for dismissing the suit. The first appellate court being the final court of fact while reversing the decree was required to assign good reasons much less sufficient and valid reasons to reverse the decree of the trial court, as such the first appellate court failed to perform its duty in reversing the decree as mandated by their Lordships of the Supreme Court in case of Santosh Hazari, (2001) 3 SCC 179 (supra) and Jagdish Singh, (2008) 10 SCC 497 (supra) and reversed the decree by recording, a perverse finding as such the judgment and decree of first appellate court granting decree for declaration of title in favour of plaintiffs is unsustainable and bad in law and deserves to be set aside. This substantial question of law are answered accordingly. As a fall out and consequence of the aforesaid discussion, both the substantial questions of law are answered in affirmative and in favour of the appellants; and in consequence thereof, second appeal is allowed and judgment & decree passed by the first appellate court is hereby set aside and decree passed by trial court is hereby restored and in result, the suit of the plaintiffs/respondent No. 1 and 2 would stand dismissed with cost throughout, A decree be drawn up accordingly.