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Calcutta High Court
Hari Ballabh Rai And Ors. vs Gopal Lal Singh on 16 May, 1910
Equivalent citations: 6 Ind Cas 577 a
Bench: Holmwood, Sharf-Ud-Din


1. This is an appeal from the judgment and decree of the Subordinate Judge of Cuttack, dated the 14th June 1907, in a suit brought by the plaintiff as one of the two reversionary heirs of one Shyam Ballabh Rai, who died in 1876. He seeks to recover possession and declaration of title in 8 annas share in certain separate parcels of property which were, it is alleged, at one time included in the estate of Shyam Ballabh, and he alleges that certain kobalas were executed by Gopemoni, the widow of Shyam Ballabh to various people, at various dates, of various isolated portions of the estate. But there is no allegation that any portion of the estate which could be now dealt with as a whole is covered by these various alienations. Further he seeks to set aside the alienations made after the widow’s death by his own father and brother during his minority. The defence appears to have been that Shyam Ballabh was not the owner of some of the properties claimed, and also that there was no necessity to sell the properties. But the principal objection to the suit was that it was bad for misjoinder of parties and causes of action, and we must say that the cause of action in this suit has, in our opinion, become so hopelessly confused as to affect the merits of the decision on every issue.

2. The learned Munsif in the Court of first instance decided that the suit was bad for multifarious ness, but gave the plaintiff a decree for Rs. 20 which he found was the value of the moiety share in the two rooms of Shyam Ballabh which it appears were not sold. In appeal the learned Subordinate Judge has held, on the authority of the case of Ishan Chunder Hazra v. Rameswar Mondol 24 C. 831, that there is no misjoinder and he has decreed the plaintiff’s suit in respect of four different properties with which we shall presently deal. Now the case in Ishan Chunder Hazra v. Rameswar Mondol 24 C. 831, does not state how the facts stood, but it speaks of the land in suit as a single parcel, and it was held, and rightly held, that when a reversioner sues in ejectment against defendants who have various titles to different portions of an estate, there is no misjoinder if he sues in a single suit. That case receives support from the later case in Nundo Kumar Nasker v. Banomali Gayan 29 C. 871. In that case it is perfectly clear that the lease was of a single parcel and the plaintiff who was suing various persons in ejectment had been dispossessed piecemeal at various times by various defendants from the whole lease-hold property. This case has been cited with approval and followed in a very recent case [Umabai Mangeshrao v. Vithal Vasudev Shetti 33 B. 293 : 11 Bom. L.R. 34 : 5 M.L.T. 230 : 1 Ind. Cas. 120]. It was there held that it is never any bar in a suit for ejectment that many persons are in possession. The only possible objection was on the ground of inconvenience. The difficulties arising from a variety of defences can be cured by successive trial of the issues separately affecting the different defendants. In that case it was only necessary to set aside the decree and to remand the case for re-trial inasmuch as all the alienations were made by the widow from her husband’s estate. In this case a remand is more necessary inasmuch as the merits have been seriously affected by the way in which this suit has been considered in the lower Courts and Section 99 cannot avail to save it. In the first place, the suit as against the plaintiff’s father and brother must obviously be separated from the suit against the alienees of the widow. In the second place, the way in which the widow made the various alienations is so different and the defences of the parties are so varying that it is impossible to say that the matter can be fairly tried without practically separating the three suits against the alienees of the widow with which we are now concerned.

3. The rule laid down by the Bombay Court really amounts to much the same thing when it is stated that there must be successive trial of the issues separately affecting the different defendants. We think that in this particular case, as it is to go back, it is far better to admit each of the cases in separate numbers and try them as four separate cases, the first case will be with regard to property No. 1 in schedule ka. The decision as regards this in the lower Court is clearly inadequate inasmuch as there is no finding that the property was not the lady’s stridhan and proceeds on the assumption that it was part of the estate of Shyam Ballabh and that there was no legal necessity for the sale. Then as regards property No. 3 in schedule ka, which will form the second suit, the same difficulty applies and there appear to have been other questions besides that of legal necessity raised in the defence. We think that it is far better that this case should have separate issues and should be separately tried. Then there is the case as regards the first property in schedule kha. It stands on a totally different footing inasmuch as the alienation is alleged to have been by verbal assignment to the defendants Nos. 1 to 4 on trust to maintain seba pujah of their family idol, and after the death of the lady, the plaintiff’s father and brother are said to have executed a release to the purchaser for this property. This is not an alienation by sale and it seems to give rise to different causes of action. This will form, as we have said, the third suit for trial. The fourth suit will be about the property No. 2 in schedule kha in this case. The alienation was said to have been made by the plaintiff’s father and brother, but the kobala, which is put forward, is found by the Subordinate Judge to have nothing to do with the property in suit. The assignees of the father and the brother cannot be sued on the same cause of action as the assignees of the widow. This too will have to form the subject of a separate suit. The plaintiff will be entitled to file these four suits, but as a condition precedent to his being allowed to be heard on remand on these four suits, he will have to pay the costs of the defendants in all the Courts. The costs will be paid within one month of the date of the receipt of the order in the lower Court, otherwise the suit will stand dismissed.

4. We assess the hearing fee in this Court at two gold mohurs.

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