Appellate Division Cases
(Civil)
PARTIES
Md. Hashmai Ullah Tapadar …………….Appellant.
-Vs-
Md. Basct Khan @ Haji Abdul Basct Khan and others…………. Respondents.
JUSTICES
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Hassan Ameen J
Judgment Dated: 3rd February 2008
The Specific Relief Act, Section 42
The Code of Civil Procedure, Order 1 Rule 1
For declaration of his title to the suit land claiming the same by way of inheritance
from his father and by amicable arrangement with other heirs of his father…….. (2)
The other brothers or sisters are cosharers in the suit land together with plaintiff and they are jointly entitled to the property and to the same relief as that of the plaintiff in the suit because they are joint owners of the property and ought to have been jointly brought or joined as such in the suit but if any one is not willing to join as plaintiff he/she should be pleaded as defendant under the provision of Order I Rule 1 of the Code of Civil Procedure. Therefore, it was incumbent upon the plaintiff to implead them in the suit as he claimed the property in the suit land by amicable arrangement against them. Under the circumstances a duty in law is cast upon the plaintiff to bring all necessary parties on record even though the defendant remains silent as to who are his co-sharers in the suit land on the face of the plea of the defendant that the suit is bad for non-joinder of necessary parties. The above finding of the learned appellate Court that the suit is not bad for defect of parties is not tenable in law and it cannot be sustained. Thus, it is found that the suit is bad for defect of parties ………………..(12)
It appears from the plaint that that the plaintiff has not asked for any relief regarding the notice nor did he file the same in the court. It has further been averred that the defendants are conspiring to oust him from the suit land and accordingly threatened him on 30.06.1989 with dispossession therefrom. Thus, it is also apparent that the plaintiff had further relief or reliefs to ask for and in that view of the matter the suit is hit by the provision of Section 42 of the Specific Relief Act. Therefore, the suit is not maintainable …………………..(13)
Abdus Salam Khan, Senior Advocate, instructed by Md.Aftab Hossain, Advocale-on-Record……………. For the Appellant
Mahbubey Alam, Senior Advocate, instructed by Clunvdlutry Md. Zahangir,Advocale-on-Record……………… For the Respondent Nos. 1-9
Civil Appeal No. 176 of 2003
(From the judgment and order dated the 9th August, 2001 passed by the High Court
Division in Civil Revision No.3051 of 1999).
JUDGMENT
Mohammad Fazlul Karim J: This Appeal, by Leave, at the instance of the appellant is directed aaainst the judgment and order dated 09.082001 passed by the Hi<ih Court Division in Civil Revision No.3051 of 1999 making the Rule absolute.
2. The facts, in short, arc that the plaintiffappellant instituted Title Suit No.50 ol’ 1989 in the Court of Subordinate Judge, Chandpur. for declaration of his title to the suit land claiming the same by way of inheritance from his father and by amicable arrangement with other heirs of his father.
3. The defendant-respondents contested the suit by filing a joint written statement denying the case of the plaintiff and contending, inter alia, that the suit is bad for defect of parties and not maintainable in its present form. Their case is that Iman Uddin Tapadar having owned and possessed the entire “Ka” schedule land covering 0.54 acres, executed a deed ol’ vvaqf in respect of the same on 11.10.1923 in favour of Masjid, Madrasha and School etc. standing thereon. Abdul Aziz Tapadar, father of the plaintiff was allowed to run a shop on the schedulc-I land and subsequently he gave up the possession of the
same in favour of the Mutvvalli of the waqf property. Therefore, the plaintiff had no right, title, interest and possession in the suit land.
4. The trial Court dismissed the suit on the finding that the suit, as framed, was not maintainable and it was barred by limitation and bad for defect of parties as the other heirs of Abdul Aziz. Tapadar were not implcadcd in the suit.
5. On appeal, the learned Additional District Judge. Chandpur, in Title Appeal No.20 ol’ 1998 reversed the judgment and decree passed in the Title Suit No.50 of 1°89 by his judgment and decree dated 0 1.04.1999 without adverting to the reasoning ol’ the trial Court.
6. However, the learned appellate Court below decreed the suit on the finding that the plaintiff got the suit land exclusively by amicable arrangement with the other heirs of Abdul Aziz Tapadar and the suit is not bad for defect of parties.
7. The defendant-respondents then preferred Civil Revision No.3051 of 1999
before the High Court Division and obtained a Rule which was ultimately made absolute on the finding that the suit is not maintainable as it is hit by Section 42 of the Specific Relief Act for not seeking consequential relief and the suit is also barred by limitation.
8. Leave was granted to consider the submissions of the learned Counsel for the appellant that the issuance of notice on 30.06.1989 by the defendants for removal of the plaintiff from the suit land casting a cloud upon title of the plaintiff thereto and as such, he filed the suit for declaration of title in suit property but the learned Judge of the High Court Division was wrong to hold that the suit was not maintainable as it was hit under Section 42 of the Specific Relief Act for not seeking further relief against the notice and as such, it merits interference of this Court, that by order dated 15.11.1989 the defendants were
barred from raising the plea of defect of parties but on the face of such order the learned Single Judge of the High Court Division was wrong to hold that a duty is cast upon the plaintiff to bring the necessary parties on record even though the defendants arc silent as to who are the necessary parties in the suit and thus arrived at an erroneous finding that the suit was bad for defect of parties and accordingly, dismissed the suit.
9. Mr. Abdus Salam Khan, learned Counsel, appearing for the appellant submitted that the cause oi’ action ol’ filing the suit arose on 30.06.1989 when the defendant issued a notice for removal of the plaintiff’s shop from the suit land and suit was filed on 25.07.1989 within much ahead of 6 years as provided under Article 120 of the Limitation Act: that while the defendant raised the plea that the suit was bad for delect of parties, the plaintiff served interrogatory upon the defendant to supply particulars of the persons who are necessary and proper party in the suit but the defendant did not reply to those interrogatory and thus an order was passed on 15.11.1989 debarring the defendant from
rising such point: that the plaintiff being in possession of the suit land a simple suit for declaration of title was not hit by the proviso to Section 42 of Specific Relief Act.
10. Mr. Mahbubey Alam. learned Counsel, appearing for the petitioners has. however, submitted with reference to Order 1 Rule 1 of Code of Civil Procedure as to the persons
to be impleaded as the plaintiff or defendant in the suit and the legal informity for implcading the necessary party regarding the suit for non-joinder or misjoinder of parties to the suit. Order I Rule 1 provides that “All persons may be joined in one suit as plaintiffs is whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is Khan (Moh.mimad l;a/lu! Karini J)
alleged to exist, whether jointly, severally or in the alternative, where, if such persons
brought separate suits, any common question of law or fact would arise.”
11. The aforesaid provision has done away with in respect to the same cause of action
previously appearing in the Court by placement of the aforesaid words i.e. words….in respect of the all arising out of the same act or transaction or series of acts or transactions out ol’ which the relief arises both the possession and the plaintiff having cause of action may join together in one suit provided that right of relief arises out of the same act or transaction. The rule, therefore, enables several plaintiffs having separate cause of action to join in one suit subject to two conditions i.e. a right to relief which is alleged to exist
must arise after the same act or transaction and if separate suits are brought by the plaintiffs in any common question of law or fact would arise i.e. there must be a common question of law or fact bearing sufficient importance in proportion to the rest of action to render desirable that all of the matters should be disposed of at the same time. If any such plaintiff refuses to join themselves/himself as plaintiff with the plaintiff, the plaintiff would be obliged to make him a defendant in a suit with averments to that effect in order to avoid any non-joinder or misjoindcr of parties in the suit.
12. It appears from the record I hat the plaintiff as P.W. 1 has stated that he has 2 brothers and 5 sisters. It appears that there was no partition suit amongst the co-sharers of the plaintiffs although the property is the ancestor property of the plaintiff and his brothers and sisters but the plaintiff though allegedly claimed that he obtained the suit land amicably, there is nothing on record or no evidence on behalf of the other co-sharers supporting the said plea and there being no lenal partition in accordance with law or in a manner recognition by law the sole assertion of the plaintiff in the instant suit is not the acceptable in law. The other brothers or sisters are co-sharers in the suit land together with plaintiff and they arc jointly entitled to the property and to the same relief as that of the plaintiff in the suit because they are joint owners of the property and ought to have been jointly brought or joined as such in the suit but il any one is not willing to join as plaintiff he/she should be pleaded as defendant under the provision Order I Rule 1 of
the Code of Civil Procedure. Therefore, it was incumbent upon the plaintiff to implcad them in the suit as he claimed the property in the suit land by amicable arrangement against them. Under the circumstances a duty in law is cast upon the plaintiff to bring all necessary parties on record even though the defendant remains silent as to who are his co-sharers in the suit land on the face of the plea of the defendant that the suit is bad for non-joinder of necessary parties. The above finding of the learned appellate Court that the
suit is not bad for defect of parties is not tenable in law and it cannot be sustained. Thus it is found thai the suit is bad lor defect of parlies.
13. It also appears that the plaintiff has mentioned in his plaint that he was served with a notice by the defendant to quit the said land and it has been admitted at the time of hearing that the said notice was served asking the plaintiff to quit the suit land. It appears from the plaint that that the plaintiff has not asked for any relief regarding the notice nor did he file the same in the court. It has further been averred that the defendants are conspiring to oust him from the suit land and accordingly threatened him on 30.06.1989 with dispossession therefrom. Thus, it is also apparent that the plaintiff had further
relief or reliefs to ask for and in that view of the matter the suit is hit by the provision of Section 42 of the Specific Relief Act. Therefore, the suit is not maintainable.
14. In view of the above, we find no merit in the appeal and the impugned judgment and order is hereby affirmed.
15. Accordingly, the appeal is dismissed without any order as to costs.
Source : V ADC (2008),565