A suit for declaration of title and recovery of possession of property cannot be defeated in the absence of a necessary party if an effective decree can be passed.

Judgement

JUDGMENT :- Plaintiff has appealed against the reversing judgment and decree of the learned District Judge of Mayurbhanj in a suit for title and ejectment of defendants.

2. Plaintiff claimed that one Dukhu Mahant had three sons - Chammu, Mangal and Bahuram. Mangal and Bahuram died issueless. Chammu s widow is the third defendant. Chammu had also two sons being Chhotua and Mithua. Mithua s daughter is the plaintiff. Chhotua s daughter Ankali left her village and has remained unheard of for more than a decade prior to suit. After the death of Chhotua and Mithua, their respective widows remarried. The third defendant re-married. Jainath, father of the 1st defendant, was born to her through the marriage. Dukhu had 5.49 acres of land as ancestral property and Chhotua had added one acre of Nayabadi land. On the death of Dukhu, Chhotua and Mithua were enjoying the entire 6.49 acres of land and after them, plaintiff came to possess the said property. Defendant No. 1 taking advantage of the helpless position of the plaintiff, without any right, title or interest in the disputed property got himself mutated in the Revenue records in respect of the disputed property and alienated the same in favour of the second defendant who trespassed into the property, forcibly harvested the paddy raised by the plaintiff and started disputing the plaintiff s title. The suit has, therefore, been filed for declaration of title and recovery of possession.

3. The third defendant supported the plaintiff. Defendants 1 and 2 in a joint statement claimed that the suit was barred by limitation; Jainath was not the illegitimate son of Sambari; Ankali being alive, without her the suit could not proceed; after the death of Chhotua and Mithua, Jainath came to succeed to the property and had full title to convey in favour of the second defendant.

4. The courts below have concurrently found that defendant No. 1 had no right, title and interest in the disputed property and his possession, therefore, is that of a rank trespasser. They have not accepted the plea of adverse possession and consequent acquisition of title. The trial court gave a decree to the plaintiff on a finding that plaintiff had title in the property and defendant as a trespasser was liable to be turned out of the property. It further found that non-joinder of Ankali as a party did not affect the suit. The lower appellate Court while accepting all the other findings came to hold :-

"The other question is if the plaintiff has to be non-suited because Ankali, daughter of Chhotua, is not a party in the suit. The trial court has repelled this contention on two grounds: (1) that the plaintiff as co-owner can evict the defendants who are trespassers and (2) the evidence shows that Mithu died subsequent to Chhotua in joint status and so the plaintiff would be the heir of the last surviving coparcener. It is true that a co-owner can maintain a suit for possession to evict a trespasser, but that principle would not apply to a suit where one of the co-owners, as in the instant case, prays for exclusive declaration of title to the exclusion of the other co-owner. The plaintiff alleges that Ankali is unheard of which is not a fact and thus wants to exclude her. Therefore, when Ankali is a co-owner of the plaintiff, the plaintiff cannot be declared to be the sole owner of the suit properties. The other reasoning that the plaintiff is the sole owner because her father Mithua was the last surviving coparcener cannot be maintained as no such case has been made out in the plaint. A suit cannot be defeated in the absence of a necessary party if an effective decree can be passed. In the instant case an effective decree cannot be passed declaring the plaintiff s title to the suit properties in the absence of Ankali the other co-owner whom the plaintiff wants to exclude falsely on the ground that she is unheard of. It is, however, pointed out that at the appellate stage notice has been served on Ankali. This is bec