Kishori Jena And Another v. Rupa Jena And Others

1. This appeal arises out of a simple suit for declaration of title to and possession of lands appertaining to Khata 46 in Mouza Kuarnpur, after setting aside the rent sale in favour of defendant 1, Rupa Jena. The plaintiffs' case was that the suit properties were jointly recorded in the names of their father, Bichhanda and their uncles Dukhei (pro forma defendant 3) and Arts (pro forma defendant No. 4). Bichhanda and Dukhei were uterine brothers and Arts was their first cousin. Defendant 2, Motilal Pandit, is the landlord of the holding and defendant 1 is the auction-purchaser who purchased the property in execution of a rent decree in suit No. 1794 of 1938-1939 on 22-12-39 and took delivery of possession through Court on 15-9-1941. The plaintiffs' case was that defendant 2 obtained a rent decree fraudulently on 20-8-1938 against the plaintiffs and their deceased brother, Ghasuri at a time when the plaintiffs were minors and Ghasuri was already dead. They also pleaded that Dukhei and Arts, pro forma defendants 3 and 4 had not been served with summons. They further alleged that the decree itself was a nullity as the suit had been filed in the name of Ganesh Lal Pandit, who had been dead prior to the institution of the suit, and that his son, Moti Lal Pandit (defendant 2) had not been substituted as his legal heir, in accordance with law. The Courts below negatived all these contentions and held that the plaintiffs had failed to prove that they were minors on the date of institution of the suit. They also held that summons had been, duly served. On the question whether the plaint had been validly presented, both the Courts held that defendant 2 must have been brought on the record, on the death of his father Ganeshlal Pandit. It is admitted that Ganesh Lal Pandit in whose name the plaint was filed died on 18-7-1936. The appellate Court therefore observed that the suit should have been filed in the name of Moti Lal instead of Ganeshlal.

2. The learned subordinate Judge as well as the learned Munsif have referred to the summons in the suit (Ext. A) served on the plaintiff 1 which shows Motilal Pandit as the plaintiff. They have also relied on the sale certificate Ext. B and the writ of delivery of possession, Ext. C which show Motilal as the decree-holder. From these facts both the courts have assumed that the necessary amendments in the plaint must have been made and that the decree was therefore validly passed. It is unnecessary to refer the other findings relating to the minority of the plaintiffs and the death of Ghasuri, as the decision of this appeal will turn upon whether there was a validly presented plaint which culminated in the decree and the rent sale.

3. The defendants did not specifically allege in their written statement that any amendment had been made. They stated generally that the decree and the rent sale were fraudulent and illegal. The plaintiffs exhibited a certified copy of the plaint in R.S Case No. 1794/39, as Ext. 5 in the present case. It shows that the plaint was filed in the name of Babu Ganeshlal Pandit as plaintiff, by one Durjyodhan Biswal, presumably his registered power-of-attorney holder. There is no mention of Motilal Pandit in the certified copy, as having been brought on the record, nor is there any mention of any amendment having been made. The order sheet in that suit has not been filed and the only evidence to show that Motilal was the decree-holder is afforded by the sale certificate. No attempt has been made to prove that Durjodhan was the agent of Motilal Pandit at the time he filed the plaint. The trial court has observed that the omission of the name of Motilal Pandit in the plaint was an accidental omission “as the printed form, being in the name of Ganeshlal Pandit was used in the rent suit in question”.

4. Learned counsel for the appellants has therefore argued that there was no material before the lower court for the finding that the name of Motilal Pandit was substituted in place of the deceased Ganesh Lal Pandit and that the decree should be held to be a nullity for the reason that the suit had been wrongly instituted in the name of the deceased plaintiff. The contention on behalf of the respondents is that the plaintiff should have filed a copy of the order-sheet and the decree, in order to show who actually obtained the decree. I do not think this is the correct way to look at the question. The plaintiffs have discharged their onus by showing that there was no suit against them or their cosharers and that any decree passed against them in the suit filed by the deceased Ganeshlal is a nullity. It was also urged that the original plaint should have been called for and that a certified copy of it would not be sufficient to prove the contents of the plaint. I am unable to accede to this contention as it has been assumed throughout by both parties that the original plaint did not contain the name of Motilal Pandit as the plaintiff.

5. Both the courts have proceeded on that assumption, but had made a conjecture, on the basis of the summons and the sale certificate, that there should have been an amendment to the plaint; otherwise the name of Motilal would not have appeared as the decree holder. Whether actually there was an amendment or not is a question of fact and should have been proved by cogent evidence and not left to speculation. If the plaint had been in fact amended the certified copy would have shown clearly when the amendment was carried out. There is thus ample intrinsic evidence to show that no such amendment substituting the name of Motilal, in place of the deceased Ganeshlal, was made, and that the plaint remained as it had been filed till the present suit was filed. It may be that neither the court nor the plaintiff discovered the wrong description and proceeded on the assumption that Motilal was the plaintiff, but that cannot rectify the obvious initial mistake committed by the plaintiff in filing the rent suit in the name of a deceased person.

6. It was next urged, on behalf of the respondents, that even if the decree were to be set aside, it could be set aside only to the extent of the plaintiffs' share and that at best only a decree for their one-third share can be granted. This contention appears to be based on a wrong reading of the plaint allegations. It is said that the plaintiffs have prayed for a decree for their one-third interest in the suit property and that a decree for possession of the entire holding would be inconsistent with the prayer contained in the plaint. It is therefore necessary to examine what the plaintiffs have stated in the plaint and what their specific prayer is. The plaintiffs' case is that pro forma defendants 3 and 4 are cosharers jointly entitled to the suit property, but in the schedule attached to the plaint, while describing the plot numbers of the khata, they have also stated that they own one-third common interest in it. Paragraph 3 of the plaint states that Dukhei, Bichhanda and Arts were ‘stitiban’ ryots under defendant 2 in respect of the properties appertaining to the suit khata. Each cosharer, owned 0-5-4 interest and the property was being enjoyed jointly by them by dividing the produce as the suit properties could not be partitioned owing to their being situated at a distance.

7. Defendant 1, Shiva Samal and others were the tenants under them and were paying their share of the produce. Paragraph 4 states that defendant 1 and Shiva Samal and others refused to deliver their share on 11-1-42 and defendant 1 represented that he had purchased the lands in respect of the suit khata at a rent sale. The plaintiffs came to learn that the disputed khata properties had been sold in execution of a decree obtained fraudulently. It is further alleged that defendant 1 in collusion with the officers of defendant 2 filed a suit for arrears of rent in respect of the suit holding and obtained an illegal decree on 20-8-1938 by fabricating false returns. The valuable suit properties were purchased by defendant 1 for the paltry sum of Rs. 41/- and delivery of possession was taken on 15-9-1941. The plaintiffs came to know of these facts on that date when they were dispossessed of the suit properties.

8. Paragraph 6 gives the value of the properties described in the schedule, as Rs. 126/- and the prayer of the plaintiffs is as follows:.

(a) It be declared that the plaintiffs are the sthithiban ryots in respect of the suit properties described in the schedule.

(b) It be declared that the decree in R.S No. 1794-1938-1939 dated 20-8-1938 and the subsequent rent sale in execution of the said decree on 22-12-39 is illegal, inoperative and does not bind the interest of the plaintiffs, and that defendant 1 has derived no title to the suit properties by virtue of the sale.

(c) That defendant 1 be ejected from his possession and the plaintiffs be put in possession of the same.

9. The schedule attached to the plaint gives the name of the village, the touzi number, the thana number and the khata number of the disputed holding and also gives the plot numbers. The total extent of the lands is given as 3 acres 78 cents and the extent of the lands belonging to the plaintiffs' one third share is given as 1 acre 26 cents. Considerable stress was laid on the description of the properties in the schedule, and on the reference to the plaintiffs' share of 0-5-4, and it was urged that the property in suit must be taken to be only one third of the holding. After going through the plaint carefully, I am of opinion that this contention is wholly untenable. Throughout the plaint, the reference is to the holding’ appertaining to khata No. 46 and the disputed holding referred to in the plaint must accordingly be understood as the entire holding which was in dispute. The plaintiffs' undivided one third share is also mentioned in the plaint only to show that they have an interest in the holding and are, therefore, entitled to sue. The valuation for purposes of court fee and jurisdiction is given for the entire holding and not merely for the plaintiffs' share. It is therefore clear to my mind that the plaintiffs, as the owners of one-third share in the holding, have sued for a declaration that the decree and execution proceedings are a nullity and do not affect their interest.

10. The fact that the plaintiffs also filed a copy of the plaint (Ext. 5) would show that the entire holding was in suit and that should have been sufficient notice to the defendants that it is the entire holding that was in suit and not merely a share therein. It cannot be said that the defendants were under a misapprehension as to what exactly the property in suit was. If the suit had been framed only for the purpose of obtaining a declaration that only a portion of the decree and the rent sale should be declared invalid, an objection could have been taken that such a suit was not maintainable. The fact that they also added defendants 3 and 4 as pro forma defendants would indicate that the entire decree and rent sale were under challenge, and not a portion of them only. To meet this objection the plaintiffs filed two petitions for amendment of the plaint at a very late stage of the hearing of this appeal. By the first petition the plaintiffs seek to add the words “defendants 3 and 4” after the words “first plaintiff” wherever they occur in the plaint.

11. The effect of this amendment is to make it clear that the decree and the rent sale are not operative against the interests not only of the plaintiffs but also defendants 3 and 4. The second petition seeks to delete the portion in the schedule giving the plaintiffs' share as 0-5-4 and the extent of the holding as 1 acre 28 decimals. As I find that the plaint is not capable of the construction nought to be put upon it by the defendants, I do not think it necessary to allow this amendment at this late stage. When and if the question arises as to whether a particular relief has been asked for, the whole of the plaint is to be taken into consideration and the substance and not merely the form of the plaint, should be looked into. All the facts that are necessary to be stated, in order to entitle the plaintiffs to the relief asked for, have been set out in the plaint and all the documents supporting their claim have been exhibited. Both the Courts have understood plaint as seeking to set aside the entire rent decree and there is no specific allegation in the written statement that the suit, as framed, for setting aside a portion of the decree and sale is not maintainable. Even if the relief sought is considered ambiguous, I would hold that the plaintiffs would be entitled to seek a declaration of the entire decree being a nullity as otherwise they would not be entitled to any relief.

12. The reference made in the schedule to their one third share is only for the purpose of substantiating their allegation in the plaint that they have sufficient interest in the suit properties to maintain the suit. I would not be a party to construe a plaint, so as to allow the statements contained in the schedule attached to it to override the express allegations made in the plaint itself, as a schedule is always to be understood as subordinate to the plaint. I am therefore not inclined to allow the amendments sought to be made, as the plaint, as it stands, contains, on a reasonable construction, all the facts necessary to entitle the plaintiffs to relief.

13. The next question is whether, if the decree and the rent sale following it are held to be a nullity, the plaintiffs alone can obtain possession of the property which belongs to them and pro forma defendants 3 and 4 jointly. The contention for the respondents is that Arts (pro forma defendant 4) had filed a petition under Order 21, R. 90 of the CPC and that it was dismissed; and that similarly Dukhei (pro forma defendant 3) had filed a suit for setting aside the sale and that it had been dismissed for default. Learned counsel for the respondents therefore contends that the plaintiffs should be debarred from claiming any relief as their cosharers had already agitated the matter, one, without success. Admittedly the suit filed by Dukhei was dismissed for default of appearance and no question of ‘res judicata’ would arise. Art's application under Order 21 Rule 90 of the CPC was dismissed for the reason that it was filed out of time. But as the decree itself was a nullity these proceedings would not have any effect on the right of the plaintiffs or their cosharers.

14. The plaintiffs are admittedly co-owners of the suit holding and the decree passed against the holding is a nullity. There can therefore be no doubt that the position of defendant 1 auction-purchaser, is only that of trespasser. In such cases any one of the several co-owners is entitled to sue for possession of the common property, without joining the other co-owners as parties in that suit. — ‘Ram Charan v. Bansidhar’, A.I.R 1942 All. 358 (A); — ‘Ahmad Sahib Shutari v. Magnesite Syndicate Ltd.’, A.I.R 1915 Mad 1214 (1) (B); See Also — ‘Harendra Narain Singh v. Moran’, 15 Cal. 40 (C). In such a case, the Court is empowered to decree joint possession as was done in — ‘Muthu Ramkrishna v. Marimuthu’, AIR 1914 Mad. 128 (D). Under Order 7, Rule 7 of the CPC the court can grant a relief which has not been specifically prayed for, if the Court thinks it just and proper that such a relief should be given.

15. Rule 7 says:

“It shall not be necessary to ask for general or other reliefs which shall always be given as the Court may think just as if it had been asked for”.

16. In — ‘Deoshi v. Harpal Bhikam Chand’, A.I.R 1927 Bom 125 (E) the Court granted a joint decree in favour of the plaintiffs and defendants although such a prayer had not been made in the plaint. The Court also has the power to transpose the defendants to the rank of plaintiffs and grant a joint decree. In considering a similar question their Lordships of the Privy Council held in — Bhupendra v. Rajeswar’, A.I.R 1931 P.C 162 (F), that such a course should be adopted where it is necessary for a complete adjudication upon questions involved in the suit and to avoid multiplicity of proceedings. In that case, all the members of the family were parties to the suit and were jointly entitled to the whole property. The pro forma defendants asked that a decree should be passed in favour of the appellant. Their Lordships observed that if there was a technical objection to this, the Court clearly had power, at any stage of the proceedings, to remedy the defect under Order 1, Rule 10 of the CPC by adding the pro forma defendants as co-plaintiffs with the appellants. In — Parsotim v. Lal Mohar’, AIR 1931 P.C 143 (G) the mortgagor-defendants applied to be co-plaintiffs, and their Lordships observed that was an application which, it was obvious, must succeed.

17. Mr. Sinha referred me to the case reported in — ‘Venkatarammani Iyer v. Subramania Iyer’, A.I.R 1928 Mad. 945 (H), which lays down that where the relief claimed is to have a decree of a Court set aside on certain grounds, it is absolutely necessary that the grounds relied on should be set out clearly and definitely. In that case the negligence of the guardian was the main ground of challenge and there is nothing in the reported decision which is in conflict with the view I have taken regarding the power of the Court to give adequate relief where it is necessary to do so. It has to be noted that, in the present case, what the plaintiffs seek is not a mere avoidance of a decree but a positive declaration that it is a nullity. A void decree is of no effect and need not be set aside by any formal proceeding because it does not exist. A voidable decree, on the other hand, is valid and binding until it has been expressly declared to be invalid by a competent tribunal. There can be no controversy that, in this case, the decree is a nullity. See — ‘Ram Khelawan v. Ramudar’, A.I.R 1939 Pat 534 (I), where the entire case law is reviewed by Dhavle, J. None of the objections raised by learned counsel for the respondents has any force and the plaintiffs are entitled to the declaration prayed for by them in their plaint. This appeal is allowed, the judgment and decree of the Courts below are set aside. I would direct that the plaintiffs should be given delivery of possession of the suit holding as co-owners, on behalf of themselves as well as on behalf of pro forma defendants 3 and 4. They shall also recover the costs of this litigation, in this Court as well as in the Court below. Hearing fee in this Court is assessed at Rs. 100/- (Rupees One hundred only). Leave to appeal refused.

B/D.H.Z

18. Appeal allowed.