A suit for permanent injunction is maintainable by a person in settled possession against a true owner to prevent forcible dispossession without due process of law, and a procedural defect of non-joinder should not result in dismissal of an appeal if the party is not necessary for an effective decree.

SANDEEP MOUDGIL, J

1. The present Regular Second Appeal (RSA) has been preferred by the defendant–appellants against the judgment and decree passed by the learned Lower Appellate Court, whereby the appeal filed by the appellants was dismissed as not maintainable. The appellants have also assailed the judgment and decree of the learned Trial Court, by which the suit filed by the plaintiff–respondents was decreed in their favor.

2. The brief facts necessary for adjudication of the present appeal are that the plaintiff–respondents instituted a suit for permanent injunction against the defendant–appellants. It was averred that the father of plaintiff No. 4, and thereafter the plaintiffs themselves, had been in cultivating possession of the land comprised in Khasra Nos. 1330 and 1338. It was alleged that the said land had been wrongly allotted to one Neki, son of Gainda, during consolidation proceedings. It was further the case of the plaintiffs that Neki, son of Gainda, did not have an undisputed or better title in the suit property, and therefore any alienation effected by him in favour of defendant Nos. 1 to 3 was illegal, null and void. During the pendency of the proceedings, the said land was further alienated in favour of defendant Nos. 4 and 5, who are the present appellants.

4. The defendants contested the suit, contending that the plaintiffs had no right, title, or interest in the suit property. It was also asserted that defendant Nos. 1 to 3 had validly sold the land to the appellants by way of registered sale deeds dated 15.07.1985 and 26.07.1985.

5. Upon consideration of the pleadings and evidence on record, the learned Trial Court decreed the suit vide judgment and decree dated 29.11.1990 in favour of the plaintiffs. Aggrieved thereby, defendant Nos. 4 and 5 preferred an appeal before the learned Lower Appellate Court.

6. The learned Lower Appellate Court, however, dismissed the appeal on the ground that the same was not maintainable as necessary parties had not been impleaded. Aggrieved by the aforesaid dismissal, the present RSA has been filed before this Court.

7. Mr. Rajender Goel, learned counsel for the appellants, has contended that the learned Lower Appellate Court erred in dismissing the appeal on a preliminary objection without properly appreciating the facts and circumstances of the case, and based its conclusion on conjectures and surmises.

8. It is argued that although the appellants were in possession of the suit property pursuant to valid registered sale deeds, the learned Trial Court erroneously held the plaintiff–respondents to be in possession and granted a decree for permanent injunction restraining the defendants from exercising their lawful rights over the property.

9. It is further contended that the appellants, having stepped into the shoes of defendant Nos. 1 to 3 by virtue of the purchase, were competent to maintain the appeal. The plaintiff–respondents did not raise any objection regarding non-impleadment of defendant Nos. 1 to 3 at the initial stage and only raised such objection at the time of hearing, contending that the appeal was not maintainable. It is submitted that the application for impleadment of defendant Nos. 1 to 3 was wrongly rejected by the learned Lower Appellate Court, and the appeal was dismissed in a mechanical manner on account of a curable procedural defect, thereby causing serious prejudice to the appellants.

10. Placing reliance upon the judgment of this Court in Ram Chander vs. Amar Si