Serajul Huq Khan vs Abdul Rahaman on 30 January, 1902

Calcutta High Court
Serajul Huq Khan vs Abdul Rahaman on 30 January, 1902
Equivalent citations: (1902) ILR 29 Cal 257
Author: R A Pratt
Bench: Rampini, Pratt


Rampini and Pratt, JJ.

1. This is an appeal from an order of the Subordinate Judge of Dacca, dated the 19th of September 1900.

2. The suit is brought for recovery of possession of land, after a declaration of the plaintiff’s right as purchaser from the defendant No. 2, for an order for the registration of the plaintiff’s name under Act YII of 1876, for mesne profits, and also for a refund of the purchase money from the defendant No. 2 in case the plaintiff’s claim against the defendant No. 1 fails.

3. The Court of first instance held that there was misjoinder of parties and causes of action and dismissed the suit. The plaintiff appealed to the Subordinate Judge, who held that there had been misjoinder in both respects. But he was of opinion that the Court of first instance should have given an opportunity to the plaintiff to elect the cause of action on which he wished to proceed with the suit; and he therefore set aside the decree of the first Court and remanded the case to the Munsif in order that he might give the plaintiff the opportunity, which he considered that he should have had.

4. The plaintiff now appeals to this Court, and urges that there has been no misjoinder of parties or causes of action.

5. We think that this plea must prevail. The plaintiff purchased the land from the defendant No. 2. Then, subsequently, after taking possession he was dispossessed by the defendant No. 1, who has obtained registration of his name under Act VII of 1876. Now the plaintiff seeks, in consequence of his dispossession, to recover possession of the land. He asks for a decree for possession against the defendant No. 1, and, if he cannot succeed in recovering possession of the land, he seeks for a refund of the purchase money paid by him to the defendant No. 2. There therefore would seem to be one cause of action in this case, namely the dispossession of the plaintiff from the land. True it is that the plaintiff seeks for alternative reliefs; but this does not make the suit one in which two causes of action are combined.

6. Then, it is clear that the defendant No. 2 is a necessary party to the suit: for the plaintiff is bound to bring in the defendant No. 2 in any suit which he brings against the defendant No. 1 for recovery of possession of the land. Similarly, when he sues the defendant No. 2 for a refund of the money, he is bound to bring in the defendant No. 1, so that he may have it decided in the presence of both parties that the defendant No. 2 had no right to sell him the land. The suit would therefore seem to be properly framed under Section 28, C. P. C. But even if it be assumed for the sake of argument that two causes of action have been combined in the suit, then it would appear to us that under Section 45, C. P. C. we have the power to allow, and would be justified in allowing, two causes of action to be united in this case, inasmuch as it is convenient that the matter should be disposed of in one suit rather than in two.

7. The learned pleader for the appellant has cited two cases in support of his argument, namely, the case of Hanuman Kamat v. Hanuman Mandur (1891) I. L. R. 19 Calc. 123. and that of Rajdhur Chowdhry v. Kali Kristna Bhattacharjya (1882) I. L. R. 8 Calc. 963. In the first of these cases it has been laid down by their Lordships of the Privy Council that a cause of action against one defendant will arise upon objection being made to the sale to him by another defendant. Therefore, it would not be safe for the plaintiff to wait until the disposal of the case against the defendant No. 1 before bringing a suit against the defendant No. 2. In the second case above cited the plaintiff brought a suit seeking to have his right declared to certain property in the presence of all the co-sharers of the property, and in the alternative for a refund of the purchase money from one of the defendants, and it was held that such a suit was properly framed. We think that these cases are in support of the view of the appellant.

8. The pleader for the respondents, on the other hand, calls our attention to the case of Mullick Kefait Hossein v. Sheo Pershad Singh (1896) I. L. R. 23 Calc. 821. That case does not seem to have any bearing upon the present case, because in that case there were distinct causes of action against different sets of defendants severally. However this maybe, we think that this is eminently a case in which justice requires that the suit should proceed against both the defendants, as it appears to us not only that there is one cause of action, but that the defendants are both interested in the subject matter of the suit.

9. We accordingly decree this appeal and, setting aside the order of the Subordinate Judge, remand the case to that officer, who will remand it to the Munsif for trial on the merits.

10. The costs of the proceedings up to date will abide the result.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *