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Case Number

A.F.A.D No. 186 of 1967

Attorney(S)

Indra Bhanu Singh
Prem Lall and A.B. Mathur

Judges

S. Anwar Ahmad, J.

Acts

Section 11 or Order 2, Rule 2, Code of Civil Procedure.
SECTION 26 INDIAN LIMITATION ACT
Hindu Women's Rights to Property Act,
Section 11 or Order 2, Rule 2,1
HINDU SUCCESSION ACT 1956

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

This appeal by the defendant first party (appellant) arises from a suit filed by the plaintiff against the appellant and his father (defendant No. 1, who subsequently died). The plaintiff sought that the beams and rafters placed by the defendants on the western wall of the plaintiff's house be removed within a reasonable time, and in the event of their failure to do so, for the removal of the same by the Court at the defendants' cost.

Relevant factual chronology, as stated in the opinion:

Parties purchased land by registered sale deed dated 20 November 1930 (Schedule A of the plaint).
In 1948 heavy floods caused the western wall of the plaintiff's house to fall; the plaintiff constructed a new western wall on the site and, at the request of defendant No. 1 and his son, permitted them to place beams and rafters on the newly constructed wall.
Defendant No. 1 and his son later claimed that the western wall was a common wall and filed Title Suit No. 83 of 1954 seeking half of the western wall; that suit was dismissed by the learned Munsif on 24 August 1955, the decision was affirmed on appeal and a second appeal to this Court (No. 813 of 1956) was dismissed on 24 August 1956.
After dismissal of the title suit, the plaintiff sought to make constructions on the wall and demanded removal of the beams and rafters; the defendants refused, leading to the suit that is the subject of this appeal.
During the suit the elder defendant (Bansidhar Fogla) died on 30 September 1962; his name was expunged from the record on 26 November 1962 on the plaintiff's petition. The surviving defendant (the appellant) filed a written statement on 18 February 1963 claiming the wall to be common and asserting prescriptive rights.
Issues were settled on 22 March 1963. The suit was initially decreed ex parte on 28 May 1963 but the ex parte decree was set aside and the suit restored on 17 July 1963. Hearing began 16 December 1963; on 19 December 1963 the appellant sought to raise abatement due to non-substitution of the widow of the deceased defendant, and the Court framed an additional issue (Issue No. 5) regarding abatement.

Legal Issues Presented

Whether the suit was defective for non-joinder of the widow of the deceased defendant (i.e., whether the plaintiff's suit should have been dismissed or otherwise affected for failure to bring the widow on record).
Whether the suit had abated because no application was filed to bring the widow on record within 90 days of the death of defendant No. 1.
Whether the appellant's claim to title in the disputed western wall was barred by res judicata in view of the earlier Title Suit No. 83 of 1954 and subsequent appeals.
Whether the appellant's plea of easement (prescriptive right to basement/beams and rafters) was maintainable or barred, and whether evidence supported a prescriptive easement under applicable limitation law.

Arguments of the Parties

Appellant's Arguments

The courts below ought to have dismissed the plaintiff's suit because the widow of deceased defendant No. 1 (Bansidhar Fogla) was not made a party.
Since no application was filed by the plaintiff to bring the widow on record within 90 days of the death of defendant No. 1, the suit abated as a whole.
The courts below erred in holding that the appellant's plea of ownership of the disputed wall was barred by res judicata (i.e., that title had previously been decided against him).
The courts below erred in their finding on the question of easement (i.e., the appellant's claimed prescriptive right to have beams and rafters resting on the wall).

Respondent's (Plaintiff's) Position

The plaintiff's pleaded case (as described in the plaint) was that the entire western wall belonged to him; he had permitted the defendants to place beams and rafters on the newly constructed wall but later asserted exclusive ownership and sought removal of the defendants' fittings when they refused to remove them.
The plaintiff applied to expunge the name of the deceased defendant from the record within the relevant period and prosecuted the suit; the plaintiff relied on the prior adjudication in Title Suit No. 83 of 1954 and subsequent appeals which had negatived the defendants' title claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagdish Chandra Sinha v. Dr. Kameshwar Singh, AIR 1953 Pat 178	It is essential that objections to defects of parties be raised at the earliest opportunity and omitted persons should be specifically named; failure to do so is deemed a waiver.	The Court relied on this authority to reject the appellant's late objection to non-joinder of the widow, observing that no such objection had been made earlier and that the appellant's conduct amounted to waiver.
Balgajan v. Sukhu, AIR 1948 Pat 288	Authority cited to support the proposition that a party cannot conceal facts and later assert abatement or other procedural defects to which they had not earlier objected.	The Court used this decision to reinforce the conclusion that the appellant could not permit the suit to proceed for a long time and then seek to set it aside on the ground of non-joinder/abatement, characterising such conduct as impermissible.
Radhamohan v. Shreekrishun, ILR 27 Pat 242 : (AIR 1948 Pat 460)	Holds that where certain heirs (e.g., sons) are on the record and an application is made to expunge the deceased's name with the statement that those heirs are on record, the suit does not abate for non-substitution of a widow not on record.	The Court treated this decision as directly applicable and binding to hold that expungement of the deceased's name within the period of limitation prevented abatement; accordingly the appellant's abatement argument failed.
Ramphal Sahu v. Babu Satdeo Jha, ILR 19 Pat 870 : (AIR 1940 Pat 346) (Full Bench)	Referenced as a decision in conflict with Radhamohan on the issue of abatement and substitution; the exact principle was not restated in detail in the opinion but it was identified as conflicting authority.	The Court noted the conflict between this decision and Radhamohan; ultimately the Full Bench questions (see the Full Bench decision below) favoured Radhamohan, so Ramphal Sahu was not followed in the instant case.
First Appeal No. 396 of 1959 (Full Bench, Patna High Court) — decision dated 23-9-1968	The Full Bench answered two framed questions, holding that in the described circumstances the suit shall not abate and that Radhamohan was correctly decided.	The Court regarded the Full Bench answers as binding and used them to reject the appellant's abatement argument and to resolve the conflict in favour of Radhamohan.

Court's Reasoning and Analysis

The Court addressed the four principal contentions raised by the appellant in turn and applied statutory rules and precedents strictly in the light of the procedural history.

1. Non-joinder (Order 1, Rule 13, Code of Civil Procedure): The Court observed that objections on grounds of non-joinder or mis-joinder must be taken at the earliest opportunity (and, at the latest, at the time of settlement of issues). The appellant did not raise the non-joinder objection earlier — neither at the settlement of issues (issues were settled twice) nor at any subsequent stage before raising it in the second appeal. Relying on Jagdish Chandra Sinha v. Dr. Kameshwar Singh, the Court held that the objection was waived by the appellant's failure to raise it in time. The Court further relied on Balgajan v. Sukhu to emphasise that a party cannot conceal facts and later rely on them to claim abatement or defeat the suit.

2. Abatement: The appellant argued the suit abated because no application was filed to bring the widow on record within 90 days. The Court noted that the name of the deceased defendant had been expunged on 26 November 1962, which was within 90 days of his death, and therefore on the date when abatement could be said to have occurred the deceased was not a party to the suit. The Court relied on Radhamohan v. Shreekrishun and the Full Bench decision in First Appeal No. 396 of 1959 (which affirmed Radhamohan) to hold that, in the circumstances described, the suit did not abate for non-substitution of the widow. Thus the abatement contention failed.

3. Res judicata (title): The Court examined the earlier Title Suit No. 83 of 1954 (filed by the deceased defendant and his son) in which the plaintiffs' claim to half the western wall was negatived by the learned Munsif; that judgment was affirmed on appeal and the second appeal to this Court was dismissed. The Court held that the issue of title to the wall had been previously adjudicated and that the appellant could not re-agitate the matter; the plea to title was therefore barred by the principles of res judicata.

4. Easement / Prescriptive Right (Section 26, Indian Limitation Act): The appellant claimed a prescriptive right (easement) in relation to the beams and rafters. The Court observed that to succeed on an easement claim under the limitation statute the appellant needed to prove continuous, open, peaceful and as-of-right enjoyment for twenty years ending within two years before filing the suit. The appellant was permitted to place evidence, but the Court found that the evidence adduced did not satisfy the requirements (it suffered from material contradictions). The learned Munsif had found the appellant had failed to prove the easement. On this basis the Court rejected the easement claim.

Conclusion of analysis: Each of the appellant's central contentions was found to be without merit on the facts and law as presented. The Court therefore found no reason to interfere with the decisions below.

Holding and Implications

Holding: The appeal is dismissed.

Direct consequences and implications (as stated or necessarily reflected in the opinion):

The appellant's objections for non-joinder and abatement were rejected; the suit did not abate and the late objection to non-joinder was treated as waived.
The appellant's claim to title in the disputed western wall is barred by res judicata because the same claim had been negatived in the earlier suit and subsequent appeals.
The appellant's plea of easement (prescriptive right) failed on evidentiary grounds and did not meet the requirements of Section 26 of the Indian Limitation Act.
The appeal was dismissed with costs. (The opinion concludes: "There is no merit in this appeal, it is accordingly dismissed with costs. Appeal dismissed.")

Broader precedent-setting: The opinion applies and follows existing authorities (including a Full Bench decision affirming Radhamohan). The Court did not purport to lay down a novel legal principle; it applied established procedural and substantive rules to the facts before it. Therefore, no new precedent was set by the reasoning in this opinion beyond the application of existing, binding authorities.

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Lakhi Prasad Fogla v. Murlidhar Marwari And Others

1. This appeal by the defendant first party arises out of a suit filed against him and his father (defendant No. 1 who subsequently died) for removing the beams and rafters placed on the western wall of the plaintiff's house within a reasonable time, and in the event of their failure to do so, for removal of the same through the process of Court at the cost of the defendants. The case of the plaintiff was that the along with the defendants second party purchased a piece of land under a registered sale deed dated the 20th November, 1930, fully described in Schedule A of the plaint the house of the defendant first party was adjacent west of the house of the plaintiff, in 1948, due to heavy flood, the western wall of the plaintiff's house fell down. A new wall was thereafter constructed by the plaintiff on the site of the old western wall. At the request of the defendant first party and his father, the plaintiff allowed them to place their beams and rafters on the newly constructed wall. Later on, the defendant first party and his father began to claim the said western wall of the plaintiff's house as a common wall between them. A title suit (numbered 83 of 1954) was filed by the defendant first party and his father with the prayer that half of the western wall from west belonged to them. The suit was contested by the plaintiff (respondent first party in the present appeal). His plea was that the entire wall belonged to him. The said title suit was dismissed by the trial court on the 24th August, 1955, with the finding that the plaintiffs (the present appellant and his father) had acquired no right title or interest in the disputed wall and that the defendant (plaintiff-respondent first party in the present appeal) was not liable to be restrained from making any construction upon the said western wall this decision was affirmed by the 1st Additional Subordinate Judge, Monghyr, in Title Appeal No. 91/11 of 1955/1956. A second appeal (No. 813 of 1956) filed before this Court was also dismissed on the 24th August 1956. The plaintiff (respondent first party in the present appeal) thereupon wanted to make constructions on the said wall and asked the defendant first party (the present appellant) and his father to remove the beams and rafters which had been placed on that wall with his permission, but the defendant first party and his father did not accede to this request of the plaintiff. Hence the suit giving rise to this appeal.

2. During the pendency of the suit defendant No. 1 Bansidhar Fogla (father of the present appellant-defendant first party) died on 30th September, 1962, and in pursuance of a petition filed by the plaintiff-respondent first party, his name was expunged on the 26th November, 1962, vide order No. 7 of the trial Court. On the 18th January, 1963, defendant No. 2 (defendant first party-appellant) appeared and prayed for time to file written statement which was filed on the 18th February, 1963.

3. The defence put forward by the defendant first party-appellant in his written statement was that the wall in question was a common wall jointly owned, possessed and constructed by them (he and his father) and the plaintiff. The beams and rafters resting on the wall in question were there from a very long time exceeding 20 years and thus he had acquired the prescriptive right of basement and was not liable to remove the same. Issues were settled on the 22nd March, 1963. The suit was decreed ex parte on the 28th May, 1963, but on the application of the defendant first party, the ex parte decree was set aside and the suit was restored to file on the 17th July, 1963.

4. The hearing of the suit thereafter began on the 16th December, 1963. Almost towards the close of the case of the plaintiff-respondent a petition was filed on behalf of the defendant first party-appellant on the 19th December, 1963, stating that defendant No. 1 Bansidhar Fogla died leaving behind as heirs his son Lakhi Prasad Fogla (defendant first party-appellant), who was already on record as defendant No. 2, and his widow Shrimau Anandi Devi. They were in possession of the properties left by him and as the widow had not been substituted in his place, it should be held that the suit had abated. At this, the Court directed that the question of abatement should also be decided; and as no issue on the point had been framed earlier, in absence of any material, the original issues were recast framing issue No. 5 with regard to abatement of the suit it may be mentioned here that up to this stage no objection was taken, not even in the written statement as shown earlier, as to the non-joinder of the widow who, according to the findings of the Courts below, is now the only other heir who is not on record, defendant No. 2 Lakhi Prasad Fogla (defendant first party-appellant) being already there.

5. In support of the appeal Mr. Indra Bhanu Singh, Counsel for the appellant has raised four points. His contentions are: (1) that the Courts below ought to have dismissed the ??? of the plaintiff as the widow of defendant No. 1 Bansidhar Fogla was not made party to it; (2) that as no application was filed by the plaintiff to bring on record the widow of deceased defendant No. 1 within 90 days of his death, the suit abated as a whole; (3) that the Courts below erred in holding that the plea of the appellant Lakhi Prasad Fogla claiming ownership of the disputed wall was barred by res judicata and (4) that the finding arrived at by the Courts below on the point of easement was incorrect.

6. The plea of the appellant that the cuit suffered from the defect of non-joinder of the widow of defendant No. 1 Bansidhar Fogla, as already stated, was not taken by him in the trial Court as provided for under Order 1, Rute 13, Code of Civil Procedure. All objections on the ground of non-joinder or mis-joinder of parties should be taken at the earliest opportority or, at least, at the time of settlement of issues or before such settlement. In the instant case, as would appear from the preceding paragraphs, no objection on the ground of non-joinder of the widow was raised either at the time the issues were settled (in this case the issues were settled twice over) or even later. As a matter of fact, the appellant did not raise any objection on this score at any earlier stage. It has been raised for the first time before me in second appeal. In Jagdish Chandra Sinha v. Dr. Kameshwar Singh, AIR 1953 Pat 178 it was laid down by a Division Bench of this Court that “it is essential that where an objection is raised to the frame of the suit on account of defect of parties it should be done at the earliest possible opportunity and the names of persons omitted should be specifically mentioned so as to enable the other side to add those persons as parties to the suit if necessary. If this is not done, the objection would be deemed to have been waived, and the fundamental rule is that no cuit shall be defeated by reason of the mis-Joinder or non-joinder of the parties”. The other aspect of the question is that the appellant did not raise any objection on the score of abatement earlier than the 19th of December, 1963, when almost all the witnesses on behalf of the respondent were examined. By his conduct, he permitted the trial Court to carry on the suit on the understanding that the estate of the deceased (defendant No. 1 Bansidhar Fogla) was fully represented by his son defendant No. 2 Lakhi Prasad Fogla. If as a consequence of the death of defendant No. 1 Bansidhar Fogla, the appellant was of the view that the estate of Bansidhar was not fully represented by him, and in order to secure full representation it was necessary to bring on record his widow, he could and ought to have intimated this to the Court This not having been done amounts to putting a premium on fraud to hold that he was entitled to conceal certain facts from the Court and then, on the basis of those fact, to assert abatement of the appeal as necessary parties were not before the Court (see Balgajan v. Sukhu*, AIR 1948 Pat 288). For the reasons stated above, there is no force in the first submission of learned Counsel.

7. It was next urged that as on the death of Bansidhar (defendant No. 1) his widow who, on the findings of the Courts below, is admittedly an heir and has not been substituted, the suit abated as a whole. Counsel for the appellant cited a large number of decisions to the effect that since after the passing of the Hindu Women's Rights to Property Act, a widow is a necessary party to a partition suit. Her presence became aft the more essential on account of the Hindu Succession Act, 1956, where she has been classified as Class I heir. But for the fact that the name of Bansidhar Fogla (defendant No. 1) was expunged by the Court on 26-11-1962 on the application of the plaintiff-respondent, I think, the appellant was bound to succeed, but, as already stated, within the period allowed by the law of limitation — before abatement could set in; the name of Bansidhar was expunged within 90 days from the date of his death and, therefore, the suit could not abate. On the date when the suit could be said to have abated, Bansidhar was not a party to it as his name had been ex-pugned much earlier. Once his name was expunged, the only person who remained party to the suit was Lakhi Prasad Fogla (defendant No. 2) who is alive up to this day. See the decision in Radhamohan v. Shreekrishun, ILR 27 Pat 242 : (AIR 1948 Pat 460). This decision was approved by a Full Bench of this Court in First Appeal No. 396 of 1959 on 23-9-1968 (Pat). On account of the conflict between the decisions in Ramphal Sahu v. Babu Satdeo Jha, ILR 19 Pat 870 : (AIR 1940 Pat 346) (FB) and Radhamohan v. Shreekrishun, ILR 27 Pat 242 : (AIR 1948 Pat 460), referred to above, the Division Bench of this Court hearing the said first appeal framed the following questions for consideration by a larger Bench;

“(1) Where one of the plaintiffs died leaving two sons, who were already on the record, and a widow, who was not on the record, and, within the period of limitation for substitution, an application was made by the remaining plaintiffs to expunge the name of the deceased plaintiff with a statement in that application that the sons of the deceased were already on record as plaintiffs 4 and 5 and no application for substitution of the widow was made, whether the suit will abate?

(2) Whether the case of ILR 27 Pat 242 : (AIR 1948 Pat 460) has been correctly decided?”

8. The answer given by the Full Bench was as follows:

“(1) The answer to the first question is in the negative, i.e, in the circumstances set out in question No. 1, the suit shall not abate.

(2) The answer to question No. 2, i.e, whether Radhamohan's case ILR 27 Pat 242 : (AIR 1948 Pat 460) was correctly decided, is in the affirmative, i.e, the case was correctly decided.”

9. The aforesaid decisions are binding on me and it has to be held there is no substance in the submission of Counsel that the suit abated on account of the widow of deceased defendant No. 1 Bansidhar Fogla not having been substituted in his place.

10. So far as the question of res judicata is concerned. Title suit No. 83 of 1954, giving rise to Second Appeal No. 813 of 1956, was filed by the deceased Bansidhar Fogla (original defendant No. 1 in the suit giving rise to this appeal) and his son Lakhi Prasad Fogla (the present appellant) against the plaintiff-respondent to films appeal, claiming that the western wall to dispute belonged to them. This claim of the plaintiffs was negatived by the learned Munsif and it was held that they had no, right, title or interest in the said wall. The judgment of the learned Munsif was upheld by the lower appellate court and the second appeal to this Court was dismissed in limine. Therefore, the case of the appellant in so far as it relates to title in the wall has already been adjudicated upon and he cannot be allowed to re-agitate the matter. The plea is barred by the principles, of res judicata.

11. Counsel for the appellant submitted that as the plea of easement could not have been pleaded in the earlier suit in view of the claim made by Bansidhar and his son, this plea is not barred either by Explanation IV to Section 11 or Order 2, Rule 2, Code of Civil Procedure. Without going into the matter as to whether the plea can be said to be barred by either Explanation IV to Section 11 or Order 2, Rule 2,1 permitted learned Counsel to place the relevant evidence on the points. As it appears, the evidence on behalf of the defendant does not fulfil the requirement of Section 26 of the Indian Limitation Act in order to succeed on the ground of easement the appellant had to lead evidence on the point that they enjoyed the right peaceably and openly as an easement and as of right without interruption, and for twenty years, ending within two years next before the institution of the suit. This has not been done. The learned Munsif while deciding this point held that the evidence adduced on behalf of the defendant suffered from material contradictions and that he had failed to prove his right of easement as claimed by him. There is no substance in this submission of learned Counsel, as well. There is no merit in this appeal, it is accordingly dismissed with costs.

12. Appeal dismissed.

Lakhi Prasad Fogla v. Murlidhar Marwari And Others

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's (Plaintiff's) Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Lakhi Prasad Fogla v. Murlidhar Marwari And Others

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