Rulda Ram and ors. Vs. Barkat Ali and ors. - Court Judgment

Excerpt:
property - requirements - compliance of - order 1 rule 8 of code of civil procedure,1908 (cpc) - suit land was in possession of petitioner - respondents forcibly made construction on suit land - petitioners filed suit along with application under order 1 rule 8 of cpc for permission of court to file suit in representative capacity on behalf of other persons against respondents - dismissed - petitioners filed appeal - dismissed - hence present second appeal - held, relying on case of sukadev tapaswai and ors. v. sri sidheswar mahadev bija silod and ors. court opined that requirements of rule 8 of order 1 of cpc had not been complied with therein - it is not necessary to establish that such persons have same cause of action as persons on whose behalf or for whose benefit they sue or are sued, or defend suit as case may be - appeal allowed - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 1. the plaintiffs being unsuccessful in both the courts below has approached this court by way of present regular second appeal against the judgment and decree dated 13.12.1983 passed by the lower appellate court affirming that of the trial court dated 7.8.1982 vide which the suit of the plain-'tiffs for mandatory injunction, was dismissed. the learned counsel referred to the various orders passed by the trial court which clearly established that the compliance of order 1 rule 8 of the code has been made and the findings of the courts below to the contrary is based on misreading of evidence which gives rise to substantial questions of law. the power to grant permission to the parties under the said rule is conferred on the court to be exercised after being satisfied that the subject matter of the suit relates to the interest of numerous persons or not.ajay kumar mittal, j.1. the plaintiffs being unsuccessful in both the courts below has approached this court by way of present regular second appeal against the judgment and decree dated 13.12.1983 passed by the lower appellate court affirming that of the trial court dated 7.8.1982 vide which the suit of the plain-' tiffs for mandatory injunction, was dismissed.2. adumbrated, the facts necessary for the disposal of this appeal are that the plaintiffs are harijans (addharmi) and inhabitants of village sheikhupur, tehsil and district nawanshahr. the land in question is in exclusive possession and enjoyment of the plaintiffs for the last 60 years and they have been using the same for their religious functions, community gathering and other common purposes. it was pleaded that the defendants have forcibly constructed their kothas on a part of land of khasra no. 90 shown in red colour in the site plan without any right title or interest, depriving the plaintiffs and the other harijans of the village from using the land in dispute for the aforesaid purposes. despite repeated requests of the plaintiffs, the defendants refused to remove their kothas which gave rise to the plaintiff to file a suit for mandatory injunction directing the defendants to remove their kothas constructed by them on part of the suit land, forcibly. along with the plaint, an application under order 1 rule 8 of the code of civil procedure (for short 'the code') was also filed seeking permission of the court to file suit in a representative capacity on behalf of 64 other persons.3. the defendants filed written statement raising various preliminary objections. it was pleaded that their forefathers had constructed the houses on the suit land and they have been in possession of the same for the last more than 40 years. it was denied that either the plaintiffs were in possession of khasra no. 90 or were they using the suit land for common purposes. denying other averments made in the plaint, the prayer for dismissal of the suit was made by the defendants.4. from the pleadings of the parties, the following issues were framed by the trial court:1. whether the suit in the present form is maintainable? opp2. whether the site in dispute is a common site of the plaintiffs and other villagers as alleged and as been used as such as alleged in para no. 2 of the plaint? opp3. whether the plaintiffs are entitled to the injunction as prayed for? opd4. whether the suit is not within time? opd5. whether the plaintiffs have no locus standi to file the suit? opd6. whether the suit in representative capacity has not been filed in accordance with law? if so, its effect? opd7. whether the plaintiffs are estopped to sue by their act and conduct? opd8. relief5. the trial court while deciding issue no. 2 in favour of the plaintiffs held that the defendants had constructed their kothas about four months prior to the institution of the suit and khasra no. 90 was a common site of the plaintiffs and the other village harijans which they had been using for their common purposes. issues no. 4 and 5 were also decided in favour of the plaintiffs. further, issue no. 1 and 3 were decided against the plaintiffs holding that neither the suit for mandatory injunction was maintainable nor were the plaintiffs entitled to the injunction as prayed. it was held that khasra no. 90 was only for the common use of the harijans and when a non-harijan encroached upon the said khasra number, disturbing the harijans in their possession, the proper remedy available to the plaintiffs was to file a suit either for ejectment or for possession. issue no. 6 was also decided against the plaintiff holding that the requirements of order 1 rule 8 of the code were not fulfilled. accordingly, the suit filed by the plaintiffs was dismissed by the trial court vide judgment and decree dated 7.8.1982. feeling aggrieved, the plaintiffs took the matter in appeal and the defendants filed cross objections. the lower appellate court vide judgment and decree dated 13.12.1983 while setting aside the findings of the trial court on issues no. 1 and 3, affirmed the findings recorded by the trial court on issue no. 6 and dismissed the appeal.6. i have heard learned counsel for the parties and perused the record with their able assistance.7. learned counsel for the appellants has submitted that the findings by the lower appellate court on all the issues except issue no. 6 had been recorded in favour of the plaintiff-appellants and the courts below had erred in dismissing the suit solely on the ground that the provisions of order 1 rule 8 of the code had not been complied with. according to the learned counsel, this plea is not available to the defendants who had appeared in the suit after service of notice. secondly, in fact, the compliance of order 1 rule 8 of the code had been done and even if, though not admitted, it had not been done, then again the suit should have proceeded after complying with the said provisions. the learned counsel referred to the various orders passed by the trial court which clearly established that the compliance of order 1 rule 8 of the code has been made and the findings of the courts below to the contrary is based on misreading of evidence which gives rise to substantial questions of law. he drew support for his submission from two judgments of this court reported as telu and ors. v. kurdia and anr. (1987-2)92 p.l.r. 13 and amarjit singh and ors. v. darshan singh and ors. (1979)81 p.l.r. 386.8. mr. y.m. bhagirath, learned counsel for the respondents, on the other hand, supported the finding of the courts below on issue no. 6 and by placing reliance upon sukadev tapaswai and ors. v. sri sidheswar mahadev bija silod and ors. : air1986ori100 submitted that the suit had rightly been dismissed by the courts below. the learned counsel urged that since the present appeal does not raise any substantial question of law, the same merits dismissal.9. after considering the rival contentions of the learned counsel for the parties. i am of the view that the following substantial questions of law arise in this appeal for adjudication by this court:1. whether in the facts and circumstances of the case, the provisions of order 1 rule 8 of the code had been complied with and the finding to the contrary is against the record and, thus, legally unsustainable?2. whether in the facts and circumstances of the case, the plea regarding non-compliance of provisions of order 1 rule 8 of the code at the behest of the defendant-respondents who had appeared in the suit and contested the same after notice, was available to them or not and whether the courts below were justified in dismissing the suit of the plaintiff-appellants?10. in order to correctly appreciate and adjudicate the controversy involved in this case, order 1 rule 8 of the code needs to be quoted and the same reads as follows:order 1 parties to suits:rule 1 to 7 xxxx8. 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 plaintiff's 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 cause, 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) xxxxxx(5) xxxxxx(6) xxxxxxexplanation.- for the purpose of determining 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 be11. a bare reading of the aforesaid provision would spell out that rule 8 applies to a case in which there are numerous parties having common interest. the suit can proceed after obtaining necessary permission or direction of the court under sub-rule (2) and all interested persons are either served by personal notice or by public advertisement as may be directed by the court. the rule is an exception to the general rule where all interested persons are required to be made parties. the object for enacting rule 8 is to facilitate the decision where large persons are interested by not taking recourse to the ordinary procedure. the power to grant permission to the parties under the said rule is conferred on the court to be exercised after being satisfied that the subject matter of the suit relates to the interest of numerous persons or not.12. it would now be useful to refer to zimni order dated 21.8.1981 passed by the trial court on the application filed by the plaintiff-appellant under order 1 rule 8 of the code and the same reads thus:present: mr. g.r. kalsi, advocate, counsel for plaintiffs-applicants.orderplaintiffs have sought permission to file the suit in a representative capacity for themselves and on behalf of 64 other harijans whose names are mentioned in the list attached with the application. it has been alleged that the site in dispute is meant for common purposes of the harijans community of the village and that the harijans of the village have common interest therein. the plaintiffs-applicants have prayed that permission may be allowed to file this suit in representative capacity. i have heard ld. counsel for the plaintiffs-applicants.2. permission is hereby accorded to file the suit in representative capacity. notice be issued to the 64 persons mentioned in the list attached with the plaint through munadi for 21.9.1981 with a direction to file objection if any on that date. notice be issued to the defendants on furnishing pf and rc for the date fixed. sd/-sub judge, ist class,21.8.1981 nawanshahr.12. on 21.9.1981, shri l.s. kang, advocate had appeared for the respondents and the case was adjourned to 30.9.1981 for filing of written statement. however, on 30.9.1981, written statement was filed and the case was adjourned to 12.10.1981 for replication and issues. 64 other persons were proceeded ex parte by the trial court on 10.6.1982 when the following order was passed:present: counsel for the parties.munadi against the 64 persons on whose behalf the case was filed in a representative capacity has been effected. none is present on their behalf. they are proceeded against ex-parte. now to come up for arguments on 15.6.1982. sd/- s.j.10.6.82.13. this court had occasion to consider similar issue in telu's case (supra), wherein under identical circumstances after analyzing the legal position, the court had laid down that where a representative suit was filed for declaration that the plaintiffs were entitled to claim partition of the joint land in a patti on the basis of holding of each proprietor in the village, known as hasab rasad khewat, it was not necessary to give a complete list of all the residents and proprietors of the patti and the revisions of order 1 rule 8 of the code regarding proclamation were fully complied with.14. still further, the said objection regarding non-compliance of the mandatory provisions of order 1 rule 8 of the code is available only to a party who was not arrayed in the list attached with the application and had been adversely affected by the decision of the suit. the objection raised at the behest of those defendants who were served notice shall not be maintainable.15. applying the aforesaid legal principle to the facts of the present case, the only conclusion drawn would be that in the present case the provisions of order 1 rule 8 of the code had been fully complied with.16. in all fairness, reference is made to sukadev tapaswai's case (supra) on which reliance has been placed by the learned counsel for the respondents. the court in that case after analyzing the scope and purpose of rule 8 of order 1 of the code, in the facts and circumstances of the case had held that the legal requirements of the aforesaid rule had not been complied with therein. that is not the position in the present case and, therefore, the aforesaid judgment is of no assistance to the respondents.17. in view of the above, once it is held that the provisions of order 1 rule 8 of the code were followed, the finding on issue no. 6 is legally unsustainable and is accordingly set aside. the substantial questions of law formulated hereinbefore are answered in favour of the plaintiff-appellants and against the defendant-respondents.accordingly, the appeal is allowed and the judgment and decree impugned in this appeal are set aside and consequently, the suit filed by the plaintiff-appellants is decreed. there shall, however, be no order as to costs.