Fawcett, A.C.J:— 11th June, 1928— In this appeal, with regard to the cross-objections to the findings of the lower Court that the house was not proved to have been given by Brijbhukhandas to Motilal and that the possession of the defendant's mother Bai Prankore was permissive and never adverse, we see no sufficient reason to differ from the lower Court. The main question, therefore, is in regard to the nature of the relief that the plaintiff is entitled to get. The trial Court held that the suit should be dismissed as the plaintiff had not proved her title to the whole house, but only to half of it, and as it was objectionable to pass a decree in favour of the plaintiff for joint possession with the defendant, who is in the position of a trespasser.
2. The District Judge held that in the circumstances of the case it was unduly harsh to deny the plaintiff any relief because she had only succeeded in proving her title to half of it and that a decree for joint possession with the defendant should be passed.
3. In appeal Mr. Mehta for the plaintiff-appellant has urged that, following the ruling of this Court in Maganlal Dulabhdas v. Budhar Purshottam(1), the plaintiff alone was competent to sue the defendant who was a trespasser and that he is entitled to a decree for possession against the defendant. On the other hand Mr. Patel for the respondent has drawn our attention to various rulings of this Court, which have emphasised the necessity of all co-owners ordinarily suing in ejectment, such as Balkrishna Vithal v. Hari Shankar(2); Balaji Bhikaji Pinge v. Gopal(3); and Balkrishna Moreshwar v. Municipality of Mahad(4). We think that in the present case, it might have saved a good deal of difficulty if the trial Court had, under O. 1, R. 10 of the CPC, ordered the heirs of Bai Dhankore to have been joined as parties, so that they could have been present and beard. The plaintiff in his appeal to the lower Court also urged in the memorandum that, if it was thought necessary, such heirs should be joined. In Maganlal v. Budhar, it is to be noted that the other co-owner was a party to the suit; and although in Ahmad Sahib Shutari v. Magnesite Syndicate, Ltd.(5), it was held that it was not necessary for the other co-owners to be parties to the action, yet in circumstances like the present it is certainly desirable that the other co-owners should be parties to any final decree that is passed in this matter. It would be much more satisfactory for the Court to hear them even at this late stage. The present suit was brought in 1922 and a little more delay for this purpose may save a good deal of subsequent litigation. In Muthu Ramakrishna Naicken v. Marimuthu Goundan(6), where the litigation disclosed that the plaintiffs were only co-owners, the High Court set aside the decrees of both the lower Courts and directed the trial Court to restore the suit to its file and make the representatives of the other co-owner parties to the suit and to pass a decree according to law. We think, however, that it is preferable to have the heirs of Bai Dhankore joined before us rather than to take a step of that kind, which might result in further appeals before this litigation is finally settled. It may be that the heirs of Bai Dhankore do not wish to claim any part of the property. In that event there would be no objection to a decree being passed in favour of the plaintiff-appellant for exclusive possession; or the parties might arrive at some compromise with regard to Bai Bhuri's heirs being given a certain portion of this house of which Bai Bhuri was in occupation for many years. Therefore, before deciding the relief, if any, to be granted to the plaintiff-appellant, we direct that Narandas and Chunilal, sons of Khushaldas, be joined as respondents to this appeal at the expense of the plaintiff-appellant; that copies of the plaint and the(appeal paper-book be served upon these two added parties and they be called upon to submit their written statements as to whether they claim to be joined with the plaintiff in obtaining possession of the property from the defendant, or whether they have no desire to obtain any relief in this suit, and, in general, what they have to say in regard to the matter in dispute. The respondents, upon such written statements being filed, to have an opportunity of filing any objections that are relevant. Costs reserved. The matter to be placed on board before this Bench within two months, and the necessary steps to be taken without delay. (When the case again came before the High Court the following judgment was delivered).
4. Fawcett, A.C.J:— 5th October, 1928— In our interlocutory judgment of 11th June, 1928, we directed that Narandas and Chunilal, sons of Khushaldas, be joined as respondents to this appeal at the expense of the plaintiff-appellant. It appears, however, that Chunilal has died long ago and that he has now no male issue. Narandas claims to be the sole heir of his deceased brother Chunilal. In the written statement that he has filed, lie further claims to be the owner of the house in suit, as well as of all other property left by Nathabhai, the deceased husband of the original plaintiff Ujam, and he asks that a decree for possession of the house be passed in his favour in this suit, with mesne profits. In the alternative he submits that this Court should, in any case, allow him joint possession with the plaintiff of the suit house. He states that he is willing to pay any necessary Court-fees with regard to such relief as may be granted to him.
5. Appellant 2 has put in a statement in answer to this written statement in which he entirely contests the claim of Narandas, and alleges that Bai Ujam became the absolute owner after Bai Dhankore's death under Nathabhai's will and that she had also a title by adverse possession. It is further pointed out that, although Narandas attended the Court at the trial and produced the will of Brijbhukandas, he made no application to the Court to be joined as a party to the suit. Mr. Divatia for Narandas has answered that there was no obligation on Narandas to apply to be joined as a party, and that it was the plaintiff's business really to have joined him and not to have concealed the fact that he had rights in the property. No doubt, it would perhaps end the litigation if we were to direct that the suit should be remanded for deciding this dispute between Narandas and the heirs of Bai Ujam; but, in our opinion, this would be turning the present suit into one of quite a different nature. It is not, in our opinion, necessary to have this dispute decided before we can give the plaintiff any relief in the suit. We think that in the circumstances of the present case, where the plaintiff has borne the brunt of the litigation, presumably to the knowledge of Narandas, it would be unfair, after she has succeeded on the main dispute between herself and Bai Bhuri, that she should be exposed to this further contest before she is given any relief in the present suit. The circumstances under which the claim of Narandas is put forward at this late stage are not in our opinion, such as call for any indulgence towards him on our part; and we think the fairest course is to act upon the view taken by this Court in Maganlal Dulabhdas v. Budhar Purshottam, and the Madras cases which have been already cited in our previous interlocutory judgment, that in the plaintiff alone was competent to sue the defendant who was a trespasser and that her heirs are entitled to a decree for possession against the defendant. But we make it clear that this is on the assumption that she is either the exclusive owner of the house or a co-owner of it with Narandas. We leave that question entirely open, so that it cannot be res judicata in any subsequent litigation between Narandas and Bai Ujam, or rather her heirs the present appellants.
6. We accordingly set aside the decree of the lower appellate Court giving Bai Ujam joint possession of the house with the defendant Bai Bhuri, and instead of that pass a decree in favour of the appellants as heirs of Bai Ujam for the ejectment of the respondents, the heirs of Bai Bhuri, from the house in suit. We further allow the appellants a decree for mesne profits of the suit house from the time that the respondents came into possession of the house as heirs of Bai Bhuri up to the date of delivery of possession to the appellants. We direct an inquiry as to the amount of the mesne profits to be held by the Subordinate Judge in whose Court the suit was brought.
7. As regards costs, we think that the respondents should bear the costs of the appellants of this second appeal, except the costs of the added respondent 5 for appearing in this appeal. We do not disturb the order as to costs given in the lower appellate Court's judgment; but the respondents will of course only be liable in regard to costs of this litigation to the extent of any assets of Bai Bhuri that have come into their hands.
8. The costs of the added respondent 5 to be borne by the appellants.
9. The Court dismisses the cross-objections with costs.
10. Decree set aside.