Sri Ram Krishna Das v. Bindeshwari Prasad And Others

Reuben, J.:— This civil revision petition and miscellaneous appeal, both by the plaintiff, are directed against an order of the Subordinate Judge, 3rd Court, Patna, in Title Suit No. 122 of 1947.

2. In this suit, the plaintiff, as sebait of Sri Thakur Brindaban Behari having its temple at Mahalla Kazibagh, police station Alamgunj, and Sri Thakur Eadha Rasik Mukutmani alias Sri Thakur Brindaban Rasik Mukutmani having its temple in Mahalla Gyangudri Darwaza, police station Brindaban, in the district of Mathura, United Provinces, sues on behalf of the Deities to recover certain property in) Brindaban and in Patna. The property in, Brindaban, according to him, forms portion of the temple there. It was sold on 14-11-1929, in execution of a decree dated 25-7-1928, in Suit No. 273 of 1928 in the Court of the Munsif of Mathura on the basis of a bond for Rs. 140, executed by Muneshwar Tewari, one of the then sebaits of the Deity. It is alleged that Muneshwar Tewari had no authority without the concurrence of the other sebaits to incur any liability on behalf of the Deity, and that the liability was incurred without any legal necessity and was not for the use of benefit of the Deity, and that both the decree and the sale in execution were collusive and the purchaser at the auction-sale was a friend of Muneshwar Tewari. Recovery of possession over this property is sought as against defendants 3 to 5, to whom the property has passed-from the auction-purchaser by a series of private transfers. Two other transactions are impugned. One is a deed of rehan dated 4-2-1936 for Rs. 1,000 in favour of defendant 2, in respect of three pies share in Mauza Rasulpur Kateswar Tauzi No. 627C, executed by. Ram Kewal Tewari, one of the then sebaits of the Deities. The other transaction is also a rehan, executed on 10-7-1937, by the aforementioned Muneshwar Tewari in respect of fifteen dams share in Mauza Rasulpur Kateswar Tauzi No. 627C, also in favour of defendant 2. These transactions are impugned on the same-grounds, namely, that the sebaits could not by their individual acts, bind the Deities, and that the transactions were not for legal necessity or for the use or benefit of the Deities. According to the plaintiff, in both these transactions, defendant was the farzidar of Munshi Kanhaiya-Lall deceased, father of defendant 1, and relief is sought as against defendants 1 and 2 in respect of these properties. Plaintiff is alleged to have become the sebait of the Deities in 1939. Only defendants 3 to 5 appeared and contested the suit and, at their instance, the Subordinate Judge considered first the issue regarding the jurisdiction of the Court to entertain the suit against the contesting defendants in respect of the property in Brindaban. Under O. 1, R. 3 of the CPC, all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, where, if separate suits were brought, any common question of law or fact would arise. The learned Subordinate Judge held that there were two distinct causes of action as against the two sets of defendants, and that the two conditions of O. 1, R. 3, were not satisfied and, therefore, the plaintiff, by joining the two causes of action in one suit, could not confer jurisdiction on the Patna Court in respect of the property in Brindaban. On this finding, he came to the conclusion that the suit as framed was bad for multifariousness and directed the plaintiff to elect against which defendant or set of defendants he proposed to go on with the suit, the discretion to be exercised by 17-2-1948 failing which the plaint would stand rejected. The appeal and the petition in civil revision are both directed against this order.

3. It is clear that no appeal lies against the order of the learned Subordinate Judge. The petition in civil revision will, therefore, be dealt with below. Order 1, R. 3, requires two conditions to be satisfied: (1) that the right to relief should be related to the same act or transaction or series of acts or transactions, and (2) that, as against the different defendants or sets of defendants, some common question of law or fact will arise.

4. The first condition is concerned with a, common act or transaction or series of acts or transactions. A mere finding that there were different causes of action as against the different sets of defendants is, therefore, not sufficient. The Code itself recognises that, in the case of joinder of several defendants, every defendant may not be interested as to all the relief claimed (O. 1, R. 5), and that questions may arise in which one set or other of the parties may not be interested (O. 2, R. 6). The question as to joinder depends not on a common cause of action but, as I have said, on common basis of acts or series of acts. That the matter is not as simple as the learned Subordinate Judge appears to have thought, is clear from the series of decisions commencing with Vasudeva Shanbhaga v. Kuleadi Narnapai, 7 M.H.C.R 290, where the Full Bench, dealing with suits impugning several alienation of joint family property by deceased coparceners, repelled the objection of multifariousness and commented on the desirability of deciding the validity of the alienations in one proceeding in order to secure the soundness of the decision, and to avoid discordant decisions in different cases on facts nearly the same. The decision was followed in Mahomed v. Krishnan, 11 Mad. 106, in a suit by junior members of a Nayar family challenging as many as 48 alienations by the karnavan in respect of 213 items of the family property. The same course was followed in Abdul v. Ayaga, 12 Mad. 234 and Byathamma v. Avulla, 15 Mad. 19. The underlying principle was explained in Nundoo Kumar v. Banomali Gayan, 29 Cal. 871, which was a suit in ejectment. The maintainability of the suit was challenged for multifariousness on the ground that the different sets of defendants second party held by separate leases under the defendant first party, from whom the plaintiff claimed as a lessee. Their Lordships pointed out that the cause of action of the plaintiff suing in ejectment cannot be affected by the title under which the defendants profess to hold possession; what concerns the plaintiff is that another is wrongfully in possession of what belongs to him; it is that fact that gives him the cause of action, and it is a matter of indifference to him on what grounds the different persons in possession may seek to justify the wrong detention of what is his. They agreed with the same view expressed by another Bench of the same Court in Ishan Chunder v. Rameswar Mondo, 24 Cal. 831. These two decisions were followed in Parbati Kuar v. Mahmud Fatima, 29 ALL. 237 : (4 A.L.J 121), where the plaintiff sued as heir of his father to recover various portions of his father's estate from the hands of different alienees and in Kubra Jan v. Ram Bali, 30 ALL. 560 : (5 A.L.J 647), where the plaintiff as heiress of her father sued to recover from her brother and certain transferees from him her share of the property of her deceased father. The latter decision is of special interest as the suit related to property partly in Bareily district and partly in the district of Bara Banki in the Province of Oudh. During the course of the suit, a compromise was arrived at regarding the Bareily property. Nevertheless, their Lordships held that the Court at Bareilly was not divested of its jurisdiction to hear and decide the suit in respect of the property situate in Oudh. For other decisions relevant to the point of joinder, reference may be made to Govindaraja Mudaliar v. Alagappa Thambiran, 49 Mad. 836 : (A.I.R (13) 1926 Mad. 911 F.B); Ramanathan Chettiar v. Annamalai Chettiar, 57 Mad. 1031 : (A.I.R (21) 1934 Mad. 367) Ranganatham Chettiar v. Mariappa Mudaliar, A.I.R (29) 1942 Mad. 334 : (208 I.C 81) and Ramautar Singh v. Brij Kishore, A.I.R (20) 1933 Pat. 653 : (149 I.C 931) all of which emphasise the necessity that the first condition of O. 1, R. 3, must be satisfied.

5. In the present case, I do not think it is necessary for me to go into this matter at greater length, because I do not think that we should interfere in exercise of this Court's power of revision in order to assist the plaintiff to raise in Patna, questions relating to the passing of a decree and the execution thereof in the Brindaban Courts so long ago as 1928 and 1929 and raising questions quite unconnected with the suit as against the defendants and the property belonging to Patna.

6. Taking the finding of the Subordinate Judge as it stands it seems to me that the Subordinate Judge has clearly gone wrong by refusing to exercise his jurisdiction in respect of the Patna property. The proper procedure might ordinarily be, as suggested in the cases of Ramanathan Chettiar v. Annamalai Chettiar, (57 Mad. 1031 : A.I.R (21) 1934 Mad. 367) and Ramautar Singh v. Brij Kishore, (A.I.R (20) 1933 Pat. 653 : 149 I.C 931) to give the plaintiff an opportunity of amending his plaint and electing as to which of the defendants he will proceed against. This is because there are more than one set of defendants against whom the Court is empowered to grant relief, and it is proper that the plaintiff should decide as to whom he will pursue his remedy against. The problem does not arise, where the Court finds, as it has found in this case, that there are two sets of defendants against one of whom it has no power to grant any remedy. Order 1, R. 3 provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties, and that the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Under O. 1, R. 4, judgment may be given without any amendment against such one or more of the defendants as may be found to be liable, according to their respective liabilities. If the Court feels itself embarrassed by the presence of parties against whom it has no power to, entertain the suit or by the inclusion in the plaint of pleadings relating to property over which it has no jurisdiction, it has the power under O. 1, R. 10, sub-r. (2), to strike out the defendants, and, under O. 6, R. 16, to strike out the unnecessary pleadings. A case in point is Nisar Ali v. Mohammad Ali, 59 I.A 268 : (A.I.R (19) 1932 P.C 172) where the inclusion in the suit of property in the Punjab which the plaintiff claimed as mutwalli of Muhammadan wakf, was not held to affect the maintainability of his suit in the Oudh Court in respect of an estate comprising properties in Oudh and the Punjab, claimed by him under a testamentary disposition made by his father.

7. On the above grounds, I would allow the petition in revision, set aside the order of the Subordinate Judge so far as it relates to the election to be made by the plaintiff and direct that the suit be proceeded with according to law.

8. The petition having failed against defendants 3 to 5, they are entitled to and will get their costs. I would assess the hearing fee at one gold mohar. Defendants 1 and 2 not having opposed the petition, and the necessity for the petition in this Court having arisen by reason of the plaintiff not having elected as directed, there will be no order for costs against, defendants 1 and 2. I would dismiss the appeal, there will be no order as to costs.

9. Jamuar, J.:— I agree.

V.B.B

10. Revision allowed;

11. Appeal dismissed.