ORDER
S. Sarwar Ali, J.
1. This is an application in revision on behalf of the defendants challenging the order of the 1st Additional Subordinate Judge, Gaya, whereby he has directed that the heirs of plaintiff No. 2 should be brought on the record.
2. The plaintiffs who were originally five in number filed a suit being title suit .No. 45/18 of 63-67. Their case was that there were four branches in the family of Babu Deoki Nandan. Each branch was separate from the other. Plaintiff No. 1 was Karta of his family. Plaintiff No. 2 was Karta of the family of the branch of Babu Bhagwat Prasad, deceased. It may be stated” that plaintiff No. 3 is also another son of the aforesaid Babu Bhagwat Prasad. Similarly, plaintiffs Nos. 3 and 4 were Kartas of their respective families- It is stated that the plaintiffs were 8 annas proprietors of tauzi No. 4246 in the district of Gaya which tauzi contained Milkiat Bakasht and Gairmazjarua Bakasht lands also. The plaintiffs borrowed a sum of Rs. 30,000/- from defendants 1 and 2 and gave 4 annas Milkiat and Bakasht interest in the aforesaid tauzi in usufructuary mortgage to defendants 1 and 2. The tauzi in question vested in the State of Bihar on 26-1-1955 and the defendants mortgagees became dispossessed from both the Milkiat and the Bakasht interest, A claim case being claim case No. 32 of 1955 was filed by the mortgagee for determination of the amount to which they were
entitled under the provisions of the Bihar Land Reforms Act. The defendants in their petition before the Claims Officer claimed that the aforementioned mortgage money was partly realisable from the compensation amount and had partly to be allotted for realisation from the Bakasht lands. Bifurcation of claim was rejected by the Claims Officer and the entire amount was held to be realisable from the compensation money payable to the plaintiffs. The decision of the claims officer was upheld in appeal. It was, therefore, averred in the plaint that the defendants had no longer any interest in the Bakasht lands which were in the possession of the plaintiffs. It was alleged, however, in the plaint that the defendants were trying to take forcible possession of the bakasht lands. Consequently there was a proceeding under Section 144 of the Code of Criminal Procedure between the parties in which the paddy stored in the Khalihan was sold by auction and the sale price was deposited in the Treasury. The plaintiffs, therefore, claimed the following main reliefs:–
“(a) That on adjudication of the facts mentioned in the plaint it be declared that on vesting of the estate the defendants being dispossessed elected to file claim for the determination of their dues and having obtained a final claim decree for the entire mortgage money to be realised from the compensation money of the Tauzi under mortgage the defendants have got no right, title and interest left over the bakasht lands mentioned below the plaint of which now the plaintiffs are the statutory raiyats in exclusive possession.
In case the defendants assert and it is found that in spite of vesting of estate free from encumbrance and their having elected to obtain a final decree for the mortgage dues in accordance with Section 14 of the B.L.R. Act. They have not given up possession of the bakasht land or any portion thereof as mortgagee, the plaintiffs alternatively pray for a decree in mandatory for directing the defendants to remove their possession and abstain from committing any further acts of possession over the said bakasht lands given in Schedule 2 of the plaint or any part thereof against the plaintiffs’ right and interest over the same.
(b) The plaintiffs be declared entitled to withdraw the price of paddy deposited in proceeding under Section 144, Cr. P. C. in the Court of Nawadah S.D.O. (Case No. 5/M of 1963 Ramji Mahton…. 1st party v. Mahabir Singh” and
(c) That defendants be restrained from interfering with the peaceful possession of the suit lands of village Lodipore in Schedule II of claiming any interest in the produce thereof.
3. The defendants in their written statement claimed to be in possession of
the property and claimed that they are entitled to continue in possession thereof as mortgagee. They further claimed that the plaintiffs are not entitled to any of the reliefs sought for in the suit.
4. The suit has a chequered career. On the conclusion of the evidence of the parties arguments were heard by the then Subordinate Judge and a date was fixed for the judgment. In the meantime the plaintiffs sought amendment of the reliefs which were allowed on payment of cost Eventually the question of court-fees and valuation cropped up in consequence of the amendment. After certain intervening events, which need not be stated here, the hearing of the argument was again to be taken up when it appeared that plaintiff No. 2 and defendant No. 2 were dead. A petition was filed by the sons, daughter and widow of plaintiff No. 2 on 8-11-1968, Stating that plaintiff No. 2 died on 8 Badho 2025 Sambat, which I am told corresponds to 16-8-1968, and praying that they should be substituted in place of the deceased plaintiff No. 2. A rejoinder was filed in which it was stated that the real date of death of plaintiff No. 2 was 7-7-1968 and consequently abatement had taken place. A reply to the rejoinder was filed by the plaintiffs in which it was stated that on death of plaintiff No. 2 the Kartaship of the family devolved on plaintiff No. 3 and that the right to sue survived in plaintiff No. 3 as Karta of the family. It was further stated that substitution of the sons, daughter and widow of plaintiff No. 2 was superfluous but the other plaintiffs did not have any objection to those persons being impleaded as plaintiffs or proforma defendants. Another application was filed for substitution of the heirs of defendant No. 2, and the heirs have been ordered to be substituted by the impugned order. But since that part of the order of the learned Subordinate Judge has not been challenged in course of the argument, it is not necessary to give relevant facts relating thereto.
5. The learned Subordinate Judge considered the question of substitution or addition of the heirs of plaintiff No. 2 as party to the suit and held that the heirs-should be impleaded as party-plaintiffs. This part of the order of the learned Subordinate Judge was only challenged at the time of argument.
6. Mr. Prem Lal for the petitioners has contended that the learned Subordinate Judge has erred in thinking that there would be an automatic devolution of Kartaship on the death of plaintiff No 2. He further contended that some of the heirs of plaintiff No. 2 being ladies, there could be no question of continuance of coparcenor-ship. Consequently, therefore, plaintiff No. 3 could not be a karta and could not represent as karta the branch of Babu
Bhagwat Prasad deceased. He contended that the order of the learned Subordinate Judge was based on misapprehension of the correct legal position and was liable to be set aside by this Court. Mr. Mahesh Prasad learned counsel for the opposite party, apart from supporting the order of the learned Subordinate Judge on the grounds mentioned in the order, contended that the death of plaintiff No. 2 having taken place after the conclusion of the arguments there was no question of abatement in this case.
7. The contention, raised on behalf of the petitioners in the form stated by me in the preceding paragraph appears to be correct, but that does not solve the difficulty of the petitioners for the reason that the main ground on which the learned Subordinate Judge has held that the heirs of plaintiff No.. 2 should be impleaded is because in his view the suit was maintainable even if plaintiff No. 2 was not impleaded as a party at the initial stage- In my view this part of the decision of the learned Subordinate Judge is correct and will result in sustaining his order. Before further discussion in the matter I would make it clear that had I been of the view that the order in question was fit to be set aside in exercise of revisional powers of this court, I would have directed the learned Subordinate Judge to hold an enquiry to ascertain as to which of the two dates of death as given by the contesting parties was correct. I would have further directed that in case the case of the defendants was found to be correct the learned Subordinate Judge should consider the question whether it was a fit case for setting aside the abatement after giving opportunity to the parties to substantiate their case in that regard. But as already stated, I am of the view that the impugned order does not call for any interference.
8. On the averments in the plaint as already noticed, by me it is clear that the case of the plaintiffs is that the suit property belonged to the four branches of the family of Babu Deoki Nandan amongst whom there was separation. The four branches, therefore, were co-owners in respect of the disputed property. Their further case is that the plaintiffs, as co-owners, were in actual possession of the property and that the defendants were illegal-attempting to interfere with their possession. Their alternative case is that in case the defendants are found to be in possession or come in possession during the pendency of the suit their possession will be that of trespassers and as such they would be liable to be ejected from the suit property. It is well settled, so far as this court is concerned, that a co-owner or co-sharer can institute a suit for recovery of possession of land held by him along with the other persons against a trespasser who
dispossesses all of them, and can obtain a decree for recovery of possession of the entire area belonging to all the co-owners or co-sharers. Reference in this connection may be made to the case in AIR 1970 Pat 1 (FB) (Ram Niranjan Das v. Loknath Mandal) where Misra, C. J. speaking for the court observed:–
“It is well settled that merely a possessory title when confronted with a better title, will yield place to the better title which must prevail over a trespasser’s possessory title pure and simple. A co-sharer, having an interest in a property, jointly with others, is apparently a person with a better title than a trespasser. Following this principle there is no reason why this suit should not be decreed. It is relevant also to consider in this connection that it is a well settled principle of law that one of the various co-owners of a property, if in possession, will be deemed to be in possession on behalf of all the co-owners, and it is for this reason that his possession, in law, therefore, is not regarded as adverse to other co-owners unless there is distinct proof of ouster. In that view of this matter also, the interest of an individual co-owner or co-sharer must be taken to cover every inch of land which may be the subject-matter of dispute as belonging to the co-owners, and hence it is clear that there is no support for Mr. Kailash Rai’s contention either in principle or in authority as to why a co-sharer’s suit cannot be held to be maintainable without impleading other co-sharers, and why it should not be decreed in respect of the entire interest of the co-owners which of course, however, will not affect the rights of other co-owners vis-a-vis successful plaintiff in a suit against a trespasser”.
A case more directly on the point is the case of Johan Uraon v. Sitaram Sao (AIR 1964 Pat 31). In this case the plaintiffs brought a suit for eviction of the defendants from the suit property on the allegation that the defendants were mere tenants-at-will and their tenancy having been determined they had no right to remain upon the land and consequently the plaintiffs were legally entitled to re-enter: The suit was decreed by the trial court on the finding that the defendants were mere trespassers. The appellate court reversed the decision of the trial court and dismissed the suit. Thereafter there was second appeal in the High Court (S. A. 585 of 1953). During the pendency of this second appeal one of the plaintiffs, namely, Manga Sao died and there was no substitution of his heirs. Eventually the appeal was heard and the decree of the lower appellate Court set aside and the case was remanded for rehearing by the appellate Court. The appellate Court having come to a conclusion contrary to what had been arrived at the earlier stage dismissed the appeal. The
defendants, therefore, came in appeal to the High Court, It was contended in this Court that the earlier second appeal (second appeal 585 of 1953) had abated as a whoie as a result of non-substitution of the heirs of deceased Manga Sao in that appeal- It was, therefore, contended that the order of remand was vitiated and was of no legal effect and the consequent decision on remand was also illegal and should be set aside. Dealing with this contenr tion Kanhaiya Singh, J. observed:–
“There is, therefore, no manner of doubt that a suit by one of joint owners to obtain possession by ejecting a trespasser is maintainable even though the other joint owners have not been implearled as parties to the action. When, therefore, one of the plaintiffs, who were joint owners, died, the right to sue, in fact, survived to the other plaintiffs or other appellants or respondents, as the case may be, and in such a case it cannot be said that the right to sue did not survive. Their Lordships of the Supreme Court have recently pointed out in the case of State of Punjab v. Nathu Ram, AIR 1962 SC 89 that the provisions of Order 1, Rule 9, C. P. C. show that
“if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it.” They have further held that
“it is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed with the suit or appeal even when one of the joint owners dies and his heirs are not brought on the record. In the circumstances of this case, therefore, there is absolutely no question of abatement of the entire appeal and despite the death of Manga Sao (Bha-gat) the appeal was in order and had not abated, as contended by learned counsel.” Although the Head Note ‘B’ in the All India Reporter gives an impression that their Lordships were only deciding the question whether the appeal had abated in its entirety or not the true effect of the decision is that the Division Bench of this Court has held that in the circumstances of the case under consideration before them there is no abatement at all. This is clear from the quotation already made by me. In view of the decision of this Court, which is binding on me. I am ofi the view that the present suit cannot abate even if there is no substitution of the heirs of plaintiff No. 2. The correctness of the decision of the learned Subordinate Judge has to be tested in the light of the legal position as discussed above.
9. The learned Subordinate Judge in the concluding portion of his order has observed as follows:–
“there can be no dispute that the right to sue survives with the remaining plaintiffs but since the legal representatives of deceased plaintiff No. 2 have now come up I see there can be no objection to their being impleaded as party plaintiffs”.
I am of the opinion that the approach ol the learned Subordinate Judge is correct, and in the circumstances of this case the learned Subordinate Judge has not acted with material irregularity in the exercise of Jurisdiction in passing the impugned order. In view of the conclusions that I have arrived at, I have not discussed the point raised by Mr. Mahesh Prasad regarding the death of plaintiff No. 2 having taken place after the conclusion of the hearing of the appeal.
10. In the result, I do not find any merit in the Civil Revision application which is accordingly dismissed, but in the circumstances of the case there will be no orders as to costs.