1. This second appeal by defendants arises out of a suit for tile possession of 8 bighas and 8 biswas or land situated in village Palthi, Bargana Teun. The plaintiffs' case was that the land in suit had reverted to them alter the death of Mt. Santi and Mt. Nazku, w/o Prabhu, the last male occupancy tenant. Mutation was effected in favour or the plaintiffs on 21-5-1950. The defendants, however, took forcible possession of the land on 15-6-1950. Consequently, the plaintiffs contended that the defendants, as trespassers, wore liable to be evicted. The suit was resisted by the defendants on various grounds, inter alia, it was contended that the suit was bad for non-joinder of Daya Ram, Bali Rani and certain other heirs of Mt. Nazku. In the second place, it was alleged that one Khayalu, the common ancestor of the defendants and Prabhu (the last male occupancy tenant) had once been in possession of the suit land. On that score, the defendants claimed occupancy rights for themselves. In the third place, the defendants alleged that they were joint occupancy tenants and, therefore, after the death of Mt. Santi and Mt. Nazku, the interests of the latter devolved upon them by survivorship.
2. The trial Court (Subordinate Judge first class, Bilaspur) directed that Daya Ram, Bah Ram and others should be impleaded as parties. On the other issues, it held that Khayalu had never been in possession of the land in suit and that the defendants were not joint tenants. Consequently, the plaintiffs were granted a decree for possession as prayed for.
3. Aggrieved by that decision, the defendants went up in appeal to the learned District Judge, but were unsuccessful there. They have now come up in second appeal to this Court.
4. Arguments of the learned counsel for the parties were heard at considerable length yesterday. I now proceed to deliver judgment. I shall deal with the arguments advanced by the learned counsel seriatim.
5. In the first place, it was urged that despite the order of the trial Court, the plaintiffs did not implead Daya Ram, Bali Ram and others. Learned counsel for the appellants contended that these persons were necessary parties and since they have not been impleaded — despite the orders of the Court — the plaintiffs should have been non-suited. Reliance was placed, in this connection, on — ‘Subbaraya Sastri v. Seetha Ramaswami’, AIR 1933 Mad 664 (A), wherein Walsh, J., remarked that:
“A person, who was a necessary party, was not impleaded as defendant in spite of such objection being taken at the very start and the suit was decreed:
Held: that the suit should be dismissed.”
6. My attention was also invited to — ‘Haroo v. Man Dass’, AIR 1949 Him Pra 4 (B), wherein one of my learned predecessors indicated as follows:
“The Court will not entertain a suit in which no effective decree can be made in the absence of an interested party. Where the decree is to be made for declaration of a right of way as a village road over the disputed land and for removal of an obstruction thereon if it is discovered that a person interested in the servient tenement has not been made a party to the suit or appeal, the Court will not proceed to make a decree. The decree, if made, must be infructuous.”
7. Learned counsel for the respondent, on the other hand, argued that Daya Ram and Bali Ram etc. were not necessary parties, but were only permissible parties. He argued that the failure to implead these persons would not be fatal to the suit. In this connection, he cited — ‘Vaithilinga Pandara Sannidhi v. Sadasiva Iyer’, AIR 1926 Mad 836 (C), where a learned Judge of that High Court remarked that:
“Where a third person, who applies to be added as a party, is only a permissible party, then on principle, his addition as party cannot generally be ordered, when it is opposed by the person to fight whom he is so brought on the record. The very basic principle of judgments, inter parties, is that the judgments are not judgments in rem but declaratory and operative only as between them. The plaintiff being generally dominuslitis, there is no principle of justice upon which he can be compelled to fight against some other litigant not of his own choice, unless such a process is required by a positive rule of law.”
8. At this stage, I may point out that the suit was one for ejectment of trespassers. If Daya Ram, Bali Rami and others are not impleaded, all that would happen is that they cannot be ejected in pursuance of the decree passed by the trial Court and upheld in appeal. It cannot have the effect of non-suiting the plaintiffs in toto. In — ‘Chandu v. Gambho’, Civil Revn. No. 14 of 1952 (D), decided by this Court on 1-4-1954, the point for determination was whether in a suit for ejectment, the failure to bring the legal representatives of one defendant on the record, within the period of limitation, would cause the suit to abate in toto.
9. Following the decision contained in — ‘Shibban v. Allah Mehar’, AIR 1934 All 716 (E), I had held that the suit would not abate in toto, but only partially, i.e as far as legal representatives of that particular defendant were concerned. On the same analogy, it can be said here that the failure to implead Daya Ram, Bali Ram and others cannot be visited with the dismissal of the suit in toto. In AIR 1933 Mad 664 (A), the facts were that the plaintiff brought the suit to eject the defendant from a site and to remove a pial erected by him thereupon.
10. The defendant pleaded that the land belonged to the Municipal Committee and he had put up the pial with permission of that Committee. He further pleaded that, under the circumstances, the Municipality was a necessary party. Under those circumstances, it was held that the Municipal Committee was a necessary party.
11. In AIR 1949 Him Pra 4 (B), my learned predecessor was dealing with a suit for declaration of a right of way over the disputed land and for the removal of an obstruction thereupon. Both these cases are clearly distinguishable from the facts of the present case and are, therefore, not applicable. This contention, therefore, fails.
12. In the next place, it was contended — though not very convincingly — that the defendants would be entitled to succeed as occupancy tenants, since the land had once been in the occupation of Khyalu, the common ancestor of themselves and Prabhu. There is no documentary evidence in support of this contention. Two witnesses, Gurdwaru and Gopalu, made an ineffectual attempt to prove this allegation. Their statements, however, are vague and unreliable.
13. Gurdwaru admitted that no living person had seen Khyalu in possession. It must be remembered that Khyalu was the great-grandfather of Prabhu and must have died long before these witnesses attained the age of discretion. Khyalu may have been the ancestor of Prabhu and the defendants but that would not be sufficient.
14. Under the proviso to Section 59(1)(d) of the Punjab Tenancy Act, which was in force here when Nazku and Santi died, the defendants had to prove, not only that Khyalu was their common ancestor, but further that the land had been under his occupation. This, they have not succeeded in proving and, consequently, this plea also fails.
15. In the third place, it was contended that the appellants succeeded to the occupancy-tenancy in question by survivorship. In other words, I was requested to hold that the land was held jointly by the defendants along with Prabhu and after his death, with his widows. In this connection, my attention was invited to copies of two judgments dated 2nd Poh 1965 Bk of the Court of Munsif first class, Bilaspur, and 8th Baisakh 1997 Bk of Bis Highness Raja Vijay Chand, Ruler of Bilaspur. These two judgments relate to a suit filed by Bhagwan Singh, father of the present plaintiffs, against Tiru, Niranjan and others.
16. The Munsif directed that the defendants be entered as occupancy tenants over an area of 170 bighas and 4 biswas. That decision was upheld in appeal by the Ruler of Bilaspur. Learned counsel for the respondent argued — and in my opinion with considerable justification — that these decisions are not relevant to the present case because it is not established that they relate to the land forming the subject-matter of the present suit. The remark of the trial Court to the effect that these judgments relate to the land in suit is not supported by evidence — as remarked by the learned District Judge. It is also noteworthy that the plea of joint tenancy was not put forward in the previous litigation.
17. It is highly significant that the land in suit stood in the exclusive name of Prabhu for several years and after his death, in the name of his widows, Nazku and Santi. If, as is alleged, the defendants were joint occupancy tenants, then we should have expected that their names also would have been entered in the revenue records. It is also strange that the defendants should have taken 16 biswas — forming part of the land in suit — on mortgage from Mt. Nazku, — as admitted in para 2 of their written statement — if, in point of fact, they had been joint tenants. Under these circumstances, the plea of joint tenancy was not at all satisfactorily made out.
18. Fourthly, it was suggested that the Civil Court had no jurisdiction to try the suit, because a question of tenancy was involved. It was suggested that the suit fell under S. 77(3), Second Group, (d) or (e), Punjab Tenancy Act. As the Court below has rightly pointed out, the existence of the relationship of landlord and tenant was never admitted by the parties.
19. On the other hand, the plaintiffs came to tile Court with the allegation that the defendants were trespassers. The defendants claimed to be occupancy tenants on the ground that a common ancestor, Khyalu, had been in possession and in the alternative, that they were joint occupancy tenants. In — ‘Sham Singh v. Amarjit Singh’, AIR 1931 Lah 362 (F), a Division Bench of that High Court held that:
“Where on the death of an occupancy tenant, an alleged reversioner claims to succeed to his rights on the ground that the common ancestor of himself and of the deceased tenant had occupied the land his claim does not fall within cl. (d), sub-section 3, S. 77, and is therefore not one which can be heard only by a revenue Court.”
“A suit by the landlord therefore to eject the reversioner on the ground, that he is not entitled to succeed to the land as an occupancy tenant is cognizable by a civil Court and not by a revenue Court.” Thus, this contention has no force.
20. Lastly, my attention was invited to the fact that, on issue 1, as framed by the Subordinate Judge (whether tile defendants have, without any right forcibly come in possession of the land in dispute), he held that in the absence of the evidence, the plaintiffs failed to prove the issue. I was, therefore, asked to hold that no decree for ejectment-could be passed.
21. As the learned counsel for the respondent has rightly pointed out, no separate finding on this issue was necessary. This issue should have been takers up along with issues 2 and 3 — whereby the defendants claimed occupancy rights. Issues 2 and 3 having been decided against the defendants, they were liable to be ejected, since they did not allege any other title or right to the land in dispute. For the foregoing reasons, this appeal must fail.
22. The appeal is dismissed with costs.
D.S.P
23. Appeal dismissed.