S.S. Saron, J.
1. This Regular Second Appeal has been filed by the defendant-appellant Jagir Singh against the judgment and decree dated 23.8.1990 passed by the learned Additional District Judge Ropar whereby the appeal filed by the plaintiffs/respondents against the judgment and decree dated 17.2.1988 passed by the learned Sub Judge 1st Class Kharar has been accepted and the judgment of the trial Court has been set aside. The defendant-appellant Jagir Singh who filed this appeal for setting aside the judgment and decree of the learned Additional District Judge Ropar died during the pendency of the appeal and his LRs were impleaded in his place on 20.3.2001.
2. The plaintiffs-Gurdial Singh and others filed a suit for permanent injunction for restraining the defendants from taking forcible possession by encroaching upon the land which was being used as common site 'ABCD' including a well as detailed in the head note of the plaint. It is alleged that the suit property is owned and possessed by the Mazhbi community from time immemorial of village Batta. Since the members of the village community were huge in number and all of them could not be joined the suit was filed in a representative capacity in terms of Order 1 Rule 8 of the Code of Civil Procedure (CPC - for short) on behalf of the village community. It is alleged that Jagir Singh (defendant No. 1) and Surjit Singh (defendant No. 2) who are also Mazhbi Sikhs had revolted against the village community and with their help defendants No. 2 and 3 want to demolish the wall 'AD' in order to usurp the site 'ABCD' with their site or they want to open a door through the wall 'AD' in order to encroach upon the site in dispute and to put the same to their exclusive use. it is further alleged that the wall 'AD' was constructed by the village Mazhbi Sikh community about 15 years back to safeguard the proper user of the site in dispute. Of late the wall had cracked down and feeling that the present site is just adjoining to the site of the defendants No. 2 and 3 they have felt allured and under that greed they want to usurp the said site and annex it with their own site.
3. On notice the defendants filed their statement in which it is stated that the site plan was wrong. Besides the plaintiffs, were not the sole owners of the suit property. The actual length and breadth of the site has also not been given. It is also alleged that defendant No. 1 is the owner in possession of the suit property as held by the Sub Judge 1st Class Kharar on 9.12.1985. The plaintiffs, it is alleged have got no concern with the suit land. The Khata of the suit land is common. Besides an objection with regard to the maintainability of the suit under Order 1 Rule 8 C.P.C. has been taken. It is alleged that Bishan Singh the maternal grandfather of defendants No. 1 and 2 was the owner of 1/2 share of the entire vacant site jointly owned and possessed by the community of Mazhbi Sikhs of village Batta. The defendants No. 1 and 2 were born in the said village and are residing in the village since birth and brought up and married by their maternal grandfather. The defendants No. 1 and 2 succeeded to the property of Bishan Singh and now they have been using the same as owners by tethering their cattle and putting their cots. In the year 1970 the dispute with respect to the property was decided in favour of Jagir Singh (defendant No. 1). The vacant site it is stated was purchased by Gurmit Singh and Avtar Singh. It is alleged that the plaintiffs, are headstrong persons and the parties were sent up for security proceedings which were pending for 14.10.1986 in the Court of S.D.M. Kharar. It is further stated that in fact the plaintiffs, want to encroach upon a part of the common site in dispute to which they have got absolutely no right whatsoever. It is also sated that the defendants have absolutely no intention of making any encroachment over the site in dispute as alleged because defendants No. 1 and 2 are already in 1/2 share of the suit land as owners in possession. They are within their right in not allowing the plaintiffs, to encroach upon in the areas which is their own. However it is stated that the plaintiffs, are at liberty to encroach in their own limit only and not in the area of the defendants. The wall, it is stated, has not cracked down the site is not adjoining to the site of defendants No. 2 and 3 and it has not been stated as to how and in which way the defendants were interfering in the affairs of the plaintiffs. Replication was filed by the plaintiffs, in which the averments made in the plaint have been reasserted and those made in the written statement have been denied. On the basis of the pleadings of the parties the learned trial Court framed the following issues:
1. Whether suit property is owned and possessed by community of Majbi Sikhs of the village Batta as alleged? OPP
2. If issue No. 1 is proved whether plaintiffs are entitled to the injunction prayed for? OPP
3. What is the effect of the judgment dated 9.12.1985 recorded by Sub Judge 1st Class Kharar? OP Parties.
4. Whether suit in the present form is not maintainable? OPP
5. Whether plaintiffs by their act and conduct are estopped from filing the suit? OPD
6. Whether plaintiffs have no locus standi to file the suit? OPP
7. Whether suit is barred by principles of resjudicata? OPP
8. Whether defendants are entitled to special costs if so to what extent? OPD
9. Relief.
4. The learned trial Court after considering the evidence and material on record decided issue No. 1 in favour of the plaintiffs-respondents and held that the suit property was owned and possessed by the Mazhbi Sikh community of village Batta. Insofar as the judgment Ex.D1 i.e. the judgment dated 9.12.1985 passed by the learned Sub Judge 1st Class Kharar in favour of Jagir Singh (defendant No. 1) is concerned it was held while deciding issue No. 3 that the same did not have any affect as the plaintiffs, were not party to the exparte decree obtained by Jagir Singh (defendant No. 1). The suit was however held to be not maintainable in the present form as no leave of the Court had been taken to file the suit in a representative capacity and the suit could be filed only with the permission of the Court. Accordingly issue No. 4 was decided in favour of the defendants-appellants. The plaintiffs, were also held not to have any locus standi to file the suit and issue No. 6 was accordingly decided in favour of the defendants. Issues No. 5 and 8 were not pressed. Therefore the same were decided accordingly against the defendants. Issue No. 2 was decided against the plaintiffs, and it was held that they are not entitled to the injunction prayed for. Accordingly the suit was dismissed.
5. The plaintiffs, feeling aggrieved against the judgment and decree of the trial Court filed an appeal against the same. The learned Additional District Judge in appeal held that the trial Court in the case had returned a finding that the suit property belonged to Mazhbi Sikh community and was owned and possessed by it. The said finding of the trial Court had not been challenged by the defendants in appeal. It was observed that the suit of the plaintiffs, was dismissed principally on the ground that the plaintiffs, did not obtain leave to file the suit under Section 91 CPC and also did not obtain the order on their application under Order 1 Rule 8 C.P.C. to file the suit in a representative capacity. Therefore it was held that the findings regarding ownership and possession stand between the parties. Insofar as the failure to obtain an order to file suit in terms of Order 1 Rule 8 CPC is concerned it was held would nevertheless reduce the suit filed by the plaintiffs, to one in their individual capacity. The locus standi of the plaintiffs, and maintainability of the suit filed could not have been questioned by the defendants. The decision of the suit it was held would not bind the members of the community who were not parties to the suit. It was further held that the Trial Court ought to have decreed the suit inter-parties in favour of the plaintiffs, and over-looked the objection to its maintainability and locus standi of the plaintiffs. These objections in fact it was observed did not arise in view of the settled law on the point. The said judgment and decree of the learned Additional District Judge as already noticed is assailed in this appeal.
6. Mr. G.S. Punia Advocate learned Counsel for the defendants-appellants has contended that the plaintiffs-respondents admittedly did not file an application under Order 1 Rule 8 C.P.C. to file the suit in a representative capacity and therefore the suit was not maintainable as rightly held by the trial Court. Besides there were only 15/20 Mazhbi Sikh families in the village and no list of the members has been supplied. Therefore it is contended that the learned Lower Appellate Court erred in law while decreeing the suit of the plaintiffs. Besides the suit can be said to have been filed in individual capacity only if the plaintiffs' claimed individual rights. The claim in the suit is for restraining the defendants from encroaching upon the property possessed by the Mazhbi Sikh community of the village and no individual right had been claimed. Therefore the suit is liable to be dismissed. It is also contended that even if the defendants the findings on issue No. 1 the provisions of Order 41 Rule 22 C.P.C. entitled the defendants-appellants to support the decree of the trial Court before the defendants-appellants to support the decree of the trial Court before the learned Lower Appellate Court. As such the first appellate Court was liable to decide issue No. 1 afresh as regards the ownership and possession of the Mazhbi Sikh community.
7. In response Mr. Munishwar Puri Advocate learned Counsel for the plaintiffs, respondents has contended that the judgment and decree passed by the learned Additional District Judge is perfectly justified and in order and the decree would be operative only inter-parties and therefore the findings recorded by the learned Lower Appellate Court call for no interference in this appeal. After considering the contentions of the learned Counsel for the parties the question of law that arises for consideration in this appeal is that where permission to file the suit in terms of Order 1 Rule 8 C.P.C. has not been taken whether the decree would still be operative between the parties to the suit.
8. It is appropriate to note that the trial Court has held that the suit property is owned and possessed by the community of Mazhbi Sikhs of village Batta. This finding of the learned trial Court was not assailed by the defendants before the first appellate Court. Although the learned Counsel for the defendants-appellants has contended that he could support such a decree in terms of Order 41 Rule 22 C.P.C. however a reading of the judgment of the learned Lower Appellate Court does not show that any such contention was raised by the defendants i.e. to assail the findings of the trial Court on issue No. 1. In the absence of any mention being made by the learned Additional District Judge it cannot be said that the defendants had assailed the findings on issue No. 1 with regard to the suit property not being owned and possessed by Mazhbi Sikh community of village Batta. Therefore it is to be taken that no such contention i.e. contention with regard to the findings recorded by the learned trial Court on issue No. 1 that the suit property is owned and possessed by the Mazhbi Sikhs of village Batta was raised. The said finding is therefore based on the facts of the case and calls for no interference in this appeal. The learned Counsel for the defendants-appellants in any case has also submitted that the decree dated 9.12.1985 (Ex.D 1) in the suit filed by him against the residents of the village has been decided in his favour. It is contended that Karam Singh who is defendant No. 5 in the suit which was decreed on 9.12.1985 (Ex.D 1) is none else but the father of Mohinder Singh (plaintiff No. 2) and Sant Singh (plaintiff No. 4). Therefore it is contended that the learned Court below has wrongly ignored the said decree. In this respect it is appropriate to note that Karam Singh son of Ganga Singh is defendant No. 5 in the suit that was decreed on 9.12.1985 (Ex.D 1) and he appeared as PW2 in the present suit. He merely stated that Mohinder Singh was his son. No question was put to him whether Sant Singh (plaintiff No. 4) was his son or that there is no other person by the name of Mohinder Singh son of Karam Singh in the village. In fact no question or suggestion was put to Karam Singh (PW2) regarding the decree that was passed on 9.12.1985 (Ex.D 1). In cross-examination Karam Singh (PW 2) denied that he had any litigation in the year 1970 with the defendants. Therefore the contention of the learned Counsel for the appellants that plaintiffs No. 2 and 4 are the sons of same Karam Singh who is defendant No. 5 in the suit that was decreed on 9.12.1985 (Ex.D 1) is without any basis as it has not been established that plaintiffs No. 2 and 4 are the sons of same Karam Singh who is defendant No. 5 in the suit that was decreed on 9.12.1985 (Ex.D 1). In fact it has not been even shown that Karam Singh who appeared as PW 2 in the present suit is the same person who is defendant No. 5 in the suit that was decreed on 9.12.1985 (Ex.D 1). These factual aspects have been set up for the first time in the present appeal and are not liable to be gone into at this stage. It is also appropriate to note that Rachhpal Singh local commissioner had been appointed in this case by the trial Court and he visited the spot on 10.7.1986 in the presence of both the parties. Memo of attendance was prepared and rough site plan was also prepared. Rachhpal Singh Advocate appeared as PW4 and his report was exhibited as Ex. PD. The observations in his report Ex. PD are to the following effect:
1. The wall A.D. shown in the site plan is 'Pacca' one about five feet high and above that three barbed wires are fitted in angle irons.
2. There is no window or door in the wall A.D. opening towards the portion A.B.C.D.
3. There is a dried up well marked X which was used by the Majhabi Community and which is about 6 feet away from the wall A.D. clearly shown in the site plan.
4. Gurmit Singh and Avtar Singh sons of Jagir Singh allege that they have purchased 4 Biswas of land from Pardeep Singh and his brother Tarsem Lal adjoining the wall A.D.
The veracity of the above report was not assailed during the appeal and even otherwise it depicts the actual position as regards the site.
10. The question however that remains to be considered is whether the suit itself can be said to be maintainable without obtaining an order of the Court in terms of Order 1 Rule 8 C.P.C. Rule 8 of Order 1 C.P.C. reads as unden-
8. One person may sue or defend on behalf of all in same interest-
(1) Where there are numerous persons having the same interest in one suit
a) One or more of such persons may with the permission of the Court sue or be sued or may defend such suit on behalf of or for the benefit of all persons so interested;
b) the Court may direct that one or more of such persons may sue or be sued or may defend such suit on behalf of or for the benefit of all persons so interested.
(2) The Court shall in every case where a permission or direction is given under Sub-rule (1) at the plaintiffs, expense give notice of the institution of the suit to all persons so interested either by personal service or where by reason of the number of persons or any other case such service is not reasonably practicable by public advertisement as the Court in each case may direct.
(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under Sub-rule (1) may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under Sub-rule (1) and no such suit shall be withdrawn under Sub-rule (3) of Rule 1 of Order XXIII and no agreement compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order unless the Court has given at the plaintiffs, expense notice to all persons so interested in the manner specified in Sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended as the case may be
Explanation. For the purpose of determination whether the persons who sue or are sued or defend have the same interest in one suit it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf or for whose benefit they sue or are sued or defend the suit as the case may be.
Therefore where numerous persons are to be sued for the benefit of all the persons interested permission of the Court is to be taken. The effect of not taking permission or infraction of the provisions of Order 1 Rule 8 C.P.C. has been considered in several cases. In Kumaravelu Chettiar and Ors. v. T.P. Ramaswami Ayyar and Ors. A.I.R. 1933 Privy Council 183 the question of violation of Order 1 Rule 9 C.P.C. was considered in the context of Section 11 Explanation 6 C.P.C. which enjoins that where the persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and others all persons interested in such right shall for the purpose of Section 11 be deemed to claim under the persons so litigating. It was held by the Privy Council that Explanation 6 to Section 11 is controlled by Order 1 Rule 8 C.P.C. and if a Court allows a suit to which the rule applies to proceed in a representative capacity for the benefit of numerous parties all parties will not be bound by the decree even if the contest leading to it were bona fide but the procedure prescribed by the rule is in no respect followed. In Suhlar etc. v. Ram Singh 1987 R.R.R. 366 (P&H;) it was held by this Court that where procedure is not followed in a suit filed under Order 1 Rule 8 C.P.C. the suit would be treated to have been filed by the plaintiff in their individual capacity and not under Order 1 Rule 8 C.P.C. In Ghisa Ram v. Surat Singh 2003 (4) R.C.R. (Civil) 23 (P&H;) after considering several decisions it was held that if the Court does not follow the procedure for entertaining a suit in a representative capacity but modifies the relief restricting the claim only to the individuals arrayed as plaintiff by name the judgment and decree is not invalid. In Jai Narain and Ors. v. Chandgi Ram and Ors. 1977 P.L.J. 527 a Division Bench of this Court considered the scope and applicability of the provisions of Order 1 Rule 8 C.P.C. and it was held that for the conditions to apply the parties must be numerous they must have interest in the suit the Court's permission must be obtained and notice must be given to parties whom it is proposed to represent in the suit. It was held that permission to institute the suit cannot be waived and failure to obtain the permission would vitiate proceedings under Order 1 Rule 8 C.P.C. However decision would be binding on actual parties. An earlier decision of this Court in Mt. Banto Devi v. Firm Rai Sahib Lala Shiv Parshad Sri Kishan Das A.I.R. (30) 1943 Lahore 96 was followed wherein it was observed as under:
Since the procedure required by Order 1 Rule 8 Civil P.C. has not been followed the suit cannot be regarded in any sense a representative suit even though reference may have been made to the case of 'other creditors'.
It was observed in the said case that necessary permission could not be waived with the result that the decision in the case was binding only on the actual parties. In Kalyan Singh v. Smt. Chhoti and Ors. 1990 (1) Latest Judicial Reports 241 it was held that Court's permission under Order 1 Rule 8 C.P.C. is mandatory in case of representative suit and any member of a community may successfully bring a suit in his individual capacity to assert his right in the community property or for protecting such property seeking removal of encroachment therefrom.
11. The aforesaid case law evidently shows that where a suit is filed in terms of Order 1 Rule 8 C.P.C. but permission of the Court is not taken the decree would only bind the parties to the suit. The question of the suit property belonging to the Mazhbi Sikh community has been determined as a matter of fact by the learned trial Court and in respect of said decree it has been held by the Lower Appellant Court that failure to obtain an order in terms of the provisions of Order 1 Rule 8 C.P.C. to proceed with the suit in a representative capacity would nevertheless reduce the suit filed by the plaintiffs, to one in their individual capacity. It was further held:
Locus standi of the appellant (plaintiffs) and maintainability of the suit filed could not have been questioned by the respondents (defendants). The decision of the suit would not bind the members of the community who were not parties to the suit. The trial Court ought to have decreed the suit inter parties in favour of the appellants (plaintiffs) and over looked the objection to its maintainability and locus standi of the appellants (plaintiffs). These objections do not arise in view of the settled law on the point.
Accordingly the findings of the trial Court on issues No. 4 and 6 were reversed. The conclusions recorded by the Lower Appellate Court are in consonance with the legal position that the failure to obtain permission to file the suit in a representative capacity though may not bind the members of the community on whose behalf its is filed but it would nevertheless bind the parties to the suit.
12. In the circumstances there is no merit in this appeal and the same is hereby dismissed.