A necessary party must be included in a suit to determine rights effectively; remedies under Order 1 Rule 10 CPC and Hindu Succession Act were upheld.

JUDGMENT :

NARENDRA KUMAR VYAS, J.

1. The appellant has filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 22-3-2018 (Annexure A/2) passed by the learned District Judge, Bemetara, District Bemetara in Civil Appeal No. 14-A/2017 by which learned First Appellate Court has partly allowed the appeal and modified the judgment and decree dated 17-5-2017 (Annexure A/1) passed by the learned Civil Judge, Class -1 Bemetara in Civil Suit No. 37-A/2014 (Annexure A/1), declared the plaintiff Hirmat Bai as legal heir of late Kejuram being daughter to the extent of 1/3rd share of the property. Learned First Appellate Court has also directed the Revenue Authority to divide the share of Hirmat Bai as per Order 20 Rule 18 read with Section 54 of the CPC.

2. For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the suit before the trial Court.

3. This appeal has been admitted by this Court on 13-7-2018 on the following substantial questions of law:-

“(i). Whether the lower Appellate Court has committed an illegality in assessing the share of the appellant Mahetarin Bai, without deciding her application filed under Order 1 Rule 10(2) of the Civil Procedure Code, 1908, and /or without providing any opportunity of hearing, is perverse?.

(ii) Whether plaintiff’s suit as framed without impleading appellant Mahetarin Bai is maintainable by virtue of proviso to Order 1 Rule 9 of the CPC?”.

4. Brief Facts as per plaint averments are that;

A. The plaintiff has filed a civil suit before the learned Civil Judge, Class-I, Bemetara for declaration of title and possession mainly contending that the plaintiff is the sole daughter of late Kejuram, therefore, being legal heir she is entitled to get property admeasuring 2.52 hectares of land situated at village Bhopsara, District Bemetara which was owned by her father Kejuram. It is also case of the plaintiff that when the plaintiff had gone to take possession of the suit property, it was revealed to her that the defendant No.1 Jiwanlal has illegally encroached the suit property. It is also pleaded that on the basis of the application submitted by defendant No.1 before the Tahsildar, Nawagarh for mutation, the said mutation has been done without following due procedure and without issuing notice to the plaintiff.

B. It has been further contended that respondent No.1 Jiwanlal is not son of Kejuram. It has also been stated that when Kejuram performed marriage with Mahetarin Bai by way of Choodi system/custom, at that time she was pregnant, as such he was not son of Kejuram and he is son of Gotilal, When the defendant has refused to vacate the possession of the suit property, then cause of action arose, therefore, she has filed a suit for possession, declaration of title and also recovery of possession from the defendant No. 1 from the suit property.

5. The defendant No. 1 has filed written statement denying the allegations made in the plaint mainly contending that the plaintiff Hirmat Bai is sole legal heir of late Kejuram who expired 12 years ago and he has handed over the suit property to him and accordingly his name was recorded in the revenue records. It is also denied that he has encroached the suit property illegally. It is also denied that the plaintiff is only daughter of Kejuram, Mahetarin Bai is legally wedded wife of Kejuram and from their wedlock he was born and rest of the averments have been denied and he prayed for dismissal of the suit.

6. Learned trial Court on the pleadings of the parties has framed as many as five issues on 13-8-2013. Issue No.1, 2 and 3 a