Dismissed

Budharu (Dead) through Lrs v. (a) Smt. Puniya Bai (Dead)

Chhattisgarh HC9 Mar 2021SA/80/2011

Case brief

AI extract

What is this about?

In a second appeal challenging a partition decree, the High Court held that a plea of non-joinder of necessary parties cannot be raised for the first time at the second appellate stage if not taken during the trial or first appeal, citing Order 1 Rule 9, 13 CPC and Supreme Court precedents.

What did the court decide?

Second appeal dismissed; trial court decree affirmed; parties to bear their own costs.

Budharu (Dead) through Lrs Vs (a) Smt. Puniya Bai (Dead) — Partition | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.80 of 2011

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1. Budharu (died) through LR's

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1A. Rohit Kumar Sahu S/o Late Budharu Ram Sahu, Aged
about 54 years, R/o H. No.33/18, Behind Hardev Lala
Mandir, New Subhash Nagar, Tikrapara, Dist. Raipur
(CG)

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1B. Rameshwar Sahu S/o Late Shri Budharu Ram Sahu,
Aged about 53 years, R/o Ward No.46, Gurmukh Singh
Nagar, near Ramakrishna Hospital, Pachpedi Naka,
Tehsil & Dist. Raipur (CG)

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1C. Mahesh Kumar Sahu S/o Late Shri Budharu Ram Sahu,
Aged about 43 years, R/o Post Bendri, Nimora-2, Mana,
Tehsil Abhanpur, Dist.Raipur (CG)

2. Lahri

3. Samaliya

4. Mahaliya

Appellants No.2 to 4 are sons of late Vishal Sahu,
(mother-late Keja Bai), R/o village-Nimora, Post-
Bendri, Tehsil-Abhanpur, District-Raipur (CG)

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5. Bahali Ram, S/o late Vishal Sahu, (mother-late Keja Bai), R/o village-Phudhar, Airport Road, Raipur, Tehsil & District-Raipur (CG)

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---- Appellants/Defendants

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Versus

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1-A) Smt.Puniya Bai, W/o late Ramlal Sahu, (dead)

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 1-B) Devnath Sahu, S/o late Ramlal Sahu,

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 1-C) Rukhmani Bai, D/o late Ramlal Sahu,
All R/o village-Pahanda, Tehsil & P.S.-Arang,
District-Raipur (CG)

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2.Smt.Ramkumari, D/o Mayaram Sahu, (mother-Bhago Bai), aged about 36 years, R/o village-Nimora, Post-Bendri, Tehsil-Abhanpur, District-Raipur (CG)

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3-A) Punau Ram, S/o Mayaram Sahu, (mother-Bhago Bai), R/o Nevra, Tehsil-Tilda, District-Raipur (CG)

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3-B) Brij Lal Sahu, S/o Mayaram Sahu, (mother-Bhago Bai), R/o Nevra, Tehsil-Tilda, District-Raipur (CG)

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3-C) Kishan Ram S/o Mayaram Sahu, (mother-Bahgo Bai),
R/o Ram Nagar, near Dayaram Pan Stall, Raipur (CG)

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 3-D) Hira Singh (deleted)

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3-E) Devcharan, S/o Mayaram Sahu, (mother-Bhago Bai),

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R/o near Vyas Talaab, Gaji Nagar, Birgaon, Raipur (CG)

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3-F) Ahilya Bai, D/o Mayaram Sahu, (mother-Bhago Bai),

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W/o Punit Ram Sahu, R/o Dhamdha, near Check post

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 Kadambini Nagar, Durg (CG)

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---- Plaintiffs

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4.State of Chhattisgarh, through the Collector, Distt.Raipur

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---- Respondents

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For Appellants/Defendants:
Mr.Adhiraj Surana, Advocate
For Respondent No.3-C:
Ms Pragya Pandey, Advocate
For Respondent No.4/State:
Mr.Sanjay Pathak, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment on Board

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9/3/2021

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1. The substantial question of law involved, formulated

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and to be answered in this second appeal preferred by
the appellants/defendants is as under:-

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“Whether the suit was not maintainable on the
ground of non-joinder of necessary party who
are in actual possession as owner of the
property?”

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

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2. The suit property was originally held by Vishambhar @ Bisae. He had three daughters namely Bhagobai, Keja Bai and Puniya Bai. The plaintiffs are descendants of Puniya Bai and Bhago Bai and defendants No.1(a) to (e) are sons of Keja Bai and defendants No.2(a) to 2(f) are sons of Bhago Bai. The plaintiffs/respondents

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herein filed a suit against the defendants for
partition and separate possession, in which the
defendants set-up a plea of earlier partition and also
took a specific statement that the suit property has
been alienated by defendant No.1(a)-Budharu to
different persons and out of which, some of them have

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been impleaded as party defendants and claimed the
decree as mentioned hereinabove.

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3. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 30.4.2010, decreed the suit holding that Keja Bai's legal representatives would

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get 1/3 share, likewise, Bhago Bai's legal

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representatives would get 1/3 share and Puniya Bai's
legal representatives would get 1/3 share in the suit
property and they will be entitled for partition and

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possession and to that extent, sale deeds were
declared void. Being aggrieved and dissatisfied with
the judgment and decree of the trial Court, the

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defendants preferred first appeal before the first
appellate Court. The first appellate Court affirmed
the judgment and decree of the trial Court by
dismissing the appeal, against which, this second
appeal under Section 100 of the CPC has been preferred
by the appellants/defendants, in which one substantial

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question of law has been formulated, which has been
set-out in opening paragraph of this judgment for sake
of completeness.

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4. Mr.Adhiraj Surana, learned counsel for the
appellants/defendants, would submit that the persons
to whom the property has been sold by dependants of
Budharu are necessary party in the suit and they are
in actual possession, therefore, decree cannot be
executed and as such, the judgment and decree passed
by both the Courts below deserve to be set-aside.

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5. On the other hand, Ms Pragya Pandey, learned counsel for respondent No.3-C, would submit that no plea of non-joinder of necessary party has raised by the defendants either before the trial Court in written statement or in memo of appeal before the first appellate Court as new plea of non-joinder of necessary party cannot be permitted to be raised

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before this Court, as such, the second appeal deserves
to be dismissed.

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6. I have heard learned counsel appearing for the
parties, considered their submissions made hereinabove
and also went through the records with utmost
circumspection.

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7. At this stage, it would be appropriate to notice Order

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1 Rule 9 of the CPC, which states as under :-

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“9.Mis-joinder and non-joinder.-No suit shall
be defeated by reason of the mis-joinder or
non-joinder of parties, and the Court may
in every suit deal with the matter in
controversy so far as regards the rights and
interests of the parties actually before it:

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Provided that nothing in this rule shall
apply to non-joinder of a necessary party.”

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8. A careful perusal of the aforesaid provision would show that proviso to Order 1 Rule 9 CPC is exception

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to Order 1 Rule 9 CPC and the suit has to be
dismissed, if the necessary party has not been joined
in the suit.

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9. A necessary party is one without whom, no order can be made effectively and a proper party is one in whom absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding.

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(See:State of Assam v. Union of India1.)

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10. Similarly, in the matter of Mumbai International Airport v. Regency Convention Centre &

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1 (2010) 10 SCC 408

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Hotels (P) LTD.2, the Supreme Court held as under qua

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the necessary party.

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“15. A “necessary party” is a person who
ought to have been joined as a party and in
whose absence no effective order could be
passed at all by the court. If a “necessary
party” is not impleaded, the suit itself is
liable to be dismissed. A “property party” is
party who, though not a necessary party, is a
person whose presence would enable the court
to completely, effectively and adequately
adjudicate upon all matters in dispute in the
suit, though he need not be a person in
favour of or against whom the decree is to
be made. If a a person is not found to be a
proper or necessary party, the court has no
jurisdiction to implead him, against the
wishes of the plaintiff. The fact that a
person is likely to secure a right/interest
in a suit property, after the suit is
decided against the plaintiff, will not make
such person a necessary party or a proper
party to the suit for specific performance.“

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11.Further, objection regarding non-joinder of
necessary party should be taken before the trial Court

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at first available opportunity in order to provide
opportunity to the plaintiff to rectify the defect,
which is apparent from Order 1 Rule 13 of the CPC and
which states as under:-

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“13. Objections as to non-joinder or mis-
joinder.-All objections on the ground of
non-joinder or mis-joinder of parties shall
be taken at the earliest possible
opportunity and, in all cases where issues
are settled, at or before such settlement,
unless the ground of objection has
subsequently arisen, and any such objection
not so taken shall be deemed to have been
waived.”

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2 (2010) 7 SCC 417

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12.Aforesaid Rule provides that an objection on
the ground of mis-joinder and non-joinder, if not
taken at the earliest opportunity, shall be deemed to
have been waived, it is based on principle that
technical objection, which, if taken at the earliest
stage of proceedings might have been cured and which
has not been so taken, should not be allowed to be
raised at the later stage so as to defeat rights of
the parties.

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13. The Madhya Pradesh High Court in the matter of Rahamatullah v. State of Madhya Pradesh 3 has held that all the questions of mis-joinder and non-joinder of the parties must be decided on the basis of allegations made in the plaint or written statement, the pleading of parties. Paragraph 5 of the report states as under:-

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“5.It is, thus a settled law and apparent
from the very reading of Rule 13 of
Order 1, that objection as to non-joinder or
mis-joinder must be taken at the earliest
possible opportunity and objection no so
taken, must be deemed to have been waived.
Non raising of plea of non joinder of
necessary party requires proof of certain
facts on the evidence on record at the
earliest stage as enjoined by Rule 13 and
this would amount to waiver of pleading of
a fact on which such a plea could be
established. It is also settled law that such
objection, if raised during the appellate
stage, without taken any objection in written
statement, the objection will not be allowed

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3 1 986 JLJ 443

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at all. All the questions of misjoinder or
non-joinder must be decided on the basis of
allegations made in the plaint or
written statement, the pleading of parties.
In absence of pleading to that
effect, it was a wrong exercise of
jurisdiction by the appellate Court and
therefore, its order cannot be maintained.”

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14. The Supreme Court in the matter of Church of

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Christ Charitable v. Ms. Pooniamman Education Trust 4

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has clearly held that objection regarding non-joinder of necessary party should be taken before the trial Court in order to provide opportunity to the plaintiff to rectify the defect and even then, the plaintiff persists in non-impleading the party, consequences of the non-joinder may follow.

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15. Relying upon its earlier pronouncement in the matter of State of U.P. v. Ram Swarup Saroj 5, it was further held that non-joinder of party cannot be raised for the first time before the Supreme Court, if same has not been raised in the trial Court and has not resulted in failure of justice.

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16. Reverting to the facts of the case in the light of aforesaid legal proposition, it is apparent that though lengthy written statement has been filed, but there is no whisper in written statement with regard to non-joinder of necessary party and written statement is blissfully silent in this regard,

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4 (2012) 8 SCC 706

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5 (2000) 3 SCC 699

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therefore, no issue could be be struck by the trial
Court. The suit was dismissed and thereafter appeal
was filed. There is no whisper in the said memo of
appeal preferred before the first appellate Court
taking the ground that the suit is liable to be
dismissed for non-joinder of necessary party. Even
before the first appellate Court during the course of
argument, it is not stated that the suit was liable
to be dismissed for non-joinder of necessary party,

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otherwise, the plaintiffs could have taken necessary
steps to implead them necessary party by curing the
defect (if any) and thereafter the suit would have

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proceeded. No plea of necessary party can be allowed
at second appellate stage to rigour out the validly
passed decree, the defendants cannot be allowed to
invent a new ground to frustrate the decree, which
could have been legitimately taken before the trial
Court/first appellate Court, as such, it cannot be
held that the suit is bad for non-joinder of necessary
party in view of the provisions contained in Order 1
Rule 13 of the CPC and in the light of principle of
law laid down by the Supreme Court in the above-stated
judgments (supra), as such, finding recorded by two
Courts below is a finding of fact based on evidence
available on record, in which I do not find any

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illegality or perversity. The substantial question of
law is answered in favour of the plaintiffs and
against the defendants.

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17. Accordingly, the second appeal deserves to be and is hereby dismissed leaving the parties to bear their own cost(s).

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18. Appellate decree be drawn-up accordingly.

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Sd/-

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 (Sanjay K.Agrawal)
 Judge

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B/-

Budharu (Dead) through Lrs v. (a) Smt. Puniya Bai (Dead)

Case brief

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Budharu (Dead) through Lrs v. (a) Smt. Puniya Bai (Dead)

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