Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Suniti Sundari Devi vs Srikrishna Chakravarti And Ors. on 23 April, 1928
Equivalent citations: AIR 1928 Cal 514


1. This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge dismissing the suit. The suit was brought by the plaintiff against several defendants. Her allegation against defendant 1 was that defendant 1 was the shebait of three idols, Krishna Jiu, Krishna Bay Jiu and Gopal Deb Thakur and the properties in suit were the debutter properties of these three idols. Allegations were made against defendant 1 for misconduct and plaintiff brings this suit, the first prayer of which was that defendant 1 be removed from his office of shebait. The second prayer is that she being in the line of shebaits be appointed shebait of these three Thakurs. There are various sets of other defendants in the suit. They are purchasers of various properties in private sales, sales in execution of decrees and otherwise of different portions of the properties in suit. These defendants have no connexion with each other. The prayer is that the properties have been wrongfully alienated by defendant 1 and that the plaintiff who asks herself to be appointed shebait of these three idols may be allowed a decree on behalf of the idols to recover possession of those properties. A large number of issues were framed which would be found at p. 29 of the paper book. Defendants 2, 3, 4, 5, 6 and 7 contested the suit. At their request certain preliminary issues, that is, 1, 2, 3, 4 and 13 were taken up by the learned Subordinate Judge for decision first. Issue 1 whether the plaintiff had any cause of action, wa3 decided in her favour. Issues 2 and 3 related particularly to the question whether the suit was bad for multifariousness. Issue 4 was whether the suit as against defendant 3 was barred by limitation. The last issue was with regard to the question of res judicata which also was decided in favour of the plaintiff. No question arises before us with regard to the plaintiff’s right to sue and with regard to the question of res judicata.

2. The appeal before us refers to the question of multifariousness and the point of limitation. The Subordinate Judge decided those two questions against the plaintiff. He held that the suit as framed was multifarious and he asked the plaintiff to elect within a certain date as to which of the defendants she wanted to proceed against and to amend her plaint accordingly. The plaintiff did not do that within the time allowed and therefore the Subordinate Judge dismissed the suit.

3. The plaintiff appeals to this Court and on her behalf the principal argument is that her suit ought not to have been dismissed but the issues which affect the different defendants differently might have been separately tried. The argument of the learned vakil for the appellant shortly stated amounts to this, that if she brought a separate suit against defendant 1 for his removal from the office of shebait and obtained a decree, that decree would be of no use as against the defendants who are alienees of the properties which she alleges to be debutter. Therefore in their presence the questions whether defendant 1 was the shebait, whether the properties are debutter properties, whether he is liable to be removed and whether the plaintiff should be appointed the succeeding shebait on removal of defendant 1 are questions in which each set of defendants is interested, and if she brought separate suits alleging the same fact making these defendants separately parties in those suits then obviously the Court in the exercise of its discretion would have consolidated all these suits for trial of these common issues of fact and law ; therefore it is not expedient that she should be compelled to bring the present suit against one set of defendants alone and bring other suits against the other different sets of defendants, as in that case those suits would again be consolidated and practically become one suit for the trial of the common issues. Her prayer therefore is that let the issues of fact and law which are common to all the defendants be tried together, and these are, as I have already said, whether the properties are valid debutter, whether defendant I was really the shebait and whether the plaintiff is entitled to have defendant 1 removed and next to have herself appointed as shebait. These questions should be tried. If the defendants have got separate defences, and it does not appear from the issues that any defence was raised that assuming that the properties were debutter the sale to any of the defendants was for legal necessity of the Thakurs – if, as I say, there are any questions special to be tried with reference to any particular set of defendants that question may be separately tried by the learned Judge in such a way as not to cause inconvenience to the other defendants. It seems to me that, having regard to the circumstances of this case, that is the proper procedure to be adopted. No doubt the suit can very well be described as multifarious as these defendants claim different properties under different sales, but there are these common (questions of fact and law. Therefore it seems to us that it would not lead to a proper administration of justice to compel the plaintiff to bring separate suits in such a case as this, seeing that these separate suits would have to be consolidated afterwards.

4. The next question is with regard to the point of limitation and that arises in this way. The properties which defendant 3 purchased were attached in Money Execution Case No. 113 of 1921 in execution of a decree obtained against defendant 1. Defendant 1 as shebait of the idols put forward a claim to those properties. The claim was disallowed on 14th January 1922. The thakur was bound to bring a suit within one year under Article 2, First Schedule to the Limitation Act. That has not been done, and defendant 3 purchased the property in execution of the decree for which the attachment was made. Therefore the Subordinate Judge held that the suit with regard to the properties in the possession of defendant 3 is barred by limitation. The argument on behalf of the appellant is that following the principle of the case of Vidya Varathi Thirtha v. Balusami Ayyar : 48 Indian Appeals 302 the succeeding shebait may bring a suit for recovery of the property as the cause of action would accrue to that shebait after the death of the present shebait. Whether that may be so or not it is unnecessary to discuss now. The point which now arises is that there is the order made under Order 21, Rule 63, Civil P.C., against the idols dismissing the claim ease. The idols have not sued within one year for establishing title to the property. Therefore under the Limitation Act the idols’ suit would be barred and consequently the plaintiff cannot as the prospective representative of the idols maintain the suit. The decision therefore of the Subordinate Judge, on that issue appears to be right.

5. The result, therefore, is that the appeal is dismissed as against defendant 3 with costs. But the judgment of the Subordinate Judge dismissing the entire suit is set aside and the case sent back to the Subordinate Judge for decision of all the other issues of fact and law common to all the defendants in their presence and if there be any particular question of fact or law which would affect only one set of defendants to fix a different time for deciding this separate point without requiring, the attendance of the other defendants. That may be done without any difficulty. We are not expressing any opinion with regard to the merits of the case which the Subordinate Judge himself has refrained from doing. It will be open to the Subordinate Judge to take such steps to ensure the recovery of costs of the defendants in case they are successful in this suit.

6. Having regard to the nature of the claim made in this case defendant 3 who is respondent 3 here is entitled to his costs of this appeal as well as his costs in the lower Court from the appellant. We assess the hearing fee of defendant 3 in. this Court at five gold mohurs. The costs of this appeal as regards the other parties will abide the final result.

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