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1960 Supreme(Pat) 126
PATNA HIGH COURT
Raj Kishore Prasad, J.
Aneshwar Prasad
Versus
Misri Lall
Appeal From Appellate Decree No. 389 of 1957 ;
Decided On : JULY 27, 1960
Trespassers in possession of mortgaged properties are not necessary parties to a suit for redemption, but they can be joined as proper parties if it is necessary to decide the question of paramount title set up by them in order to afford appropriate relief to the plaintiff, and to avoid multiplicity of suits.
Headnote:
REDEMPTION SUIT - JOINDER OF PARTIES - TRESPASSERS IN POSSESSION OF MORTGAGED PROPERTIES - NECESSARY PARTIES - ORDER 34, RULE 1, C. P. C. - INTERPRETATION - COURT'S DISCRETION TO DECIDE ISSUES OF PARAMOUNT TITLE - CONVENIENCE AND AVOIDANCE OF MULTIPLICITY OF SUITS - WAIVER OF OBJECTION OF MISJOINDER - EFFECT.
Fact of the Case:
Plaintiffs brought a suit for redemption of two rehans in favour of defendants 1 to 3. Defendants 7(a) to 7(c) and 9, who were in possession of the mortgaged properties, were also impleaded as defendants. They pleaded that they had redeemed the ijaras in suit and that they were in possession of the lands in suit to the knowledge of all including the plaintiffs. The trial court held that the plaintiffs were entitled to redeem the rehans not only from defendants 1 to 3, but also from defendants 7 series and 9, who have made common cause, in this matter, with defendants 1 to 3. On appeal, the court of appeal below held that defendants 6 to 10 were not necessary parties to the suit, and as such, no decree could be passed against them. It, accordingly, while affirming the decree as against the other defendants, set aside the decree as against defendants 7 series and 9 series, who were appellants before it, and dismissed the plaintiffs suit as against them.
Finding of the Court:
The court held that defendants 7(a) to 7(c) and 9 to 9(b), or, the heirs of the deceased defendant 9(b), the appellants in the court of appeal below, now respondents 1 to 14 had no right to raise the objection of nonjoinder of parties on their account, as they did not take it earlier in the suit, and, therefore, they must, he deemed to have waived it, and, as such the court of appeal below had no jurisdiction to entertain that objection on appeal for the first time.
Issues: 1. Whether the defendants 7(a) to 7(c) and 9 to 9(b) were necessary parties to the suit for redemption? 2. Whether the suit was bad for misjoinder of parties on account of their joinder as defendants?
Ratio Decidendi: 1. The words, "persons having an interest either in the mortgage-security, or, in the right of redemption", mean that only those persons should be joined as parties to a suit relating to a mortgage who were either interested in the mortgage-security or in the right of redemption. 2. Ordinarily, a person, who sets up a title paramount to that of the mortgagee should not be joined as a party to a suit on the basis of the mortgage, for he is neither interested in the mortgage-security, nor, in the right of redemption. 3. The question whether issues of title paramount should or should not be decided in a mortgage suit is dependent on each particular case. In each case the Court can exercise its discretion whether it will lead to inconvenience or confusion in trying the issue as to paramount title in the same suit. 4. When, however, a defendant, who sets up adverse claims to the mortgaged property does not object to his joinder as a party to the suit, rather invites the Court to decide his claim, and, when such claim has been gone into by the trial court, the appellate Court should not reverse the decision of the trial Court on that ground alone unless the derision has affected the jurisdiction of the Court or caused a prejudice to the parties by the trial on the merits.
Final Decision: The appeal succeeds, the judgment and decree of the court of appeal below are set aside, and, those of the trial court are restored, and the plaintiffs suit is decreed also as against defendants 7(a), 7(b), 7(c) and 9, 9(a) and the heirs of 9(b), who , are now respondents 1 to 14. The appellants will be entitled to their costs of this Court and of the Court of appeal below from the just mentioned defendants respondents t to 14 only. In all other respects the judgment and decree of the trial court, which were not challenged in the court of appeal below, are affirmed.
Raj Kishore Prasad, J.
1. This plaintiffs appeal, which arises out of a suit for redemption brought by them against the respondents is from the Judgment of Mr. J. C. Sinha, then. Subordinate Judge, third Court, Gaya, who reversed the decree of the trial Court against defendants 7(a), 7(b), 7(c), 9, 9fa) and 9(h), and, dismissed the suit as against them, on the ground that they, being trespassers in possession of the mortgaged properties in suit, were not necessary parties to the suit.
2. The suit was decreed against all the defendants by the trial Court, but, on appeal, it was dismissed as against the fust mentioned defendants, who only were the appellants in the court of appeal below. The decree as against the other defendants was not challenged, and, therefore, it stood affirmed.
3. The sole question for determination, in the appeal, is whether the above mentioned defendants had been improperly joined as parties to the suit, and, whether the suit has rightly been dismissed against them by the court of appeal below?
4. Put shortly, the material facts are these: Mungeshwar LaI3 and Darbari Lall were admittedly uterine brothers. On 26-1-1944, Mungeshwar executed a rehan in favour of defendants 1 to 3, in respect of the properties, mentioned in schedules 2 and 3 of the plaint. On 20-3-1944, Mungeshwar again executed another rehan in respect of schedule 3 property only, in favour of the same mortgagees, that is, defendants 1 to 3. On 16-5-1949, Musammat Deo Kuer, widow, of Mungeshwar, who was by that time dead, executed an ijara in favour of the plaintiffs regarding schedule 4 properties which consisted of schedules II and III properties. On 29-8-1949, Deo Kuer, along with her daughter, defendant 4, and, her Nati, defendant 5, sold schedule 5 properties to the plaintiffs. The plaintiffs, therefore, brought the suit for redemption of the two rehans of 1944 in favour of defendants 1 to 3.
5. In the plaint, it was pleaded that Mungeshwar Lall and Darbari Lall were separated brothers. This fact, however, was challenged by the heirs of Darbari Lall, and of his another deceased brother, defendants 7 to 10, and they pleaded that both the brothers were joint. The trial Judge, however, found that Mungeshwar Lall and Darbari Lall were separate, and, this finding was not challenged in the court of appeal below, or, in this Court, and, therefore, that finding is final.
6. The plaintiffs, in paragraph 3 of their plaint, gave the reasons for impleading defendants 6 to 1.0 also as parties to the suit. It was alleged that defendants 6 to 10 falsely and incorrectly claimed to have redeemed the ijaras in suit without any title, and, therefore, to settle the matter at rest defendants 6 to 10 were also impleaded as defendants. It was further mentioned, therein, that defendants 1 to 3 and 6 to 10 being in collusion of one another, had all combined and made a common cause against the plaintiffs.
7. A joint written statement was filed on behalf of defendants 7(a), 7(b), 7(c) and 9, and, they admitted in paragraph 21 of their written statement, that Darbari Lall redeemed the ijaras of defendants 1 to 3 in 1949, and, that they have been coming in possession of the lands in suit to the knowledge of all including the plaintiffs. They, however, did not plead in the written statement that the suit was bad for misjoinder of parties, also because they were unnecessary parties to the suit, as they had a paramount title, and, therefore, they should not have been made parties to it. In paragraph 6 of the written statement, no doubt, they pleaded that the suit was bad for misjoinder of parties, but, they alleged that it was so because Dwarka Prasad or his sons and widow, who had never any concern with the suit lands, had also been made parties to the suit.
8. The trial Judge, who heard the suit, in the first instance, on a consideration of the evidence of both sides, recorded, inter alia, the following findings:
1. That Darbari Lal redeemed the rehans in s
