1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A NO. 280 of 1999. Reserved on 22.3.2010. Date of decision 3.5.2010 Tara Chand & others. ....Appellants. Versus Karam Chand & others. ....Respondents. Coram Hon'ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?No For the appellants: Mr. Ramakant Sharma, Advocate. For the respondents: Mr. M.S. Thakur, Advocate. ---------------------------------------------------------------------------------------------------- - Kuldip Singh, J The appellants were plaintiffs and have come in appeal against judgment and decree dated 7.4.1999, passed by learned District Judge, Hamirpur in Civil Appeal No. 46 of 1988, affirming judgment, decree dated 14.3.1988, passed by learned Sub Judge, 1st Class (2), Hamirpur in case No. 69 of 1984. 2. The brief facts of the case are that appellants had filed a suit for declaration with consequential relief of permanent prohibitory injunction on the allegations that they are owners in possession of land measuring 3 kanals, 12 marlas being 2/5 share of khata No. 20. The appellants had acquired the suit land through purchase in the year 1978 for Rs. 5,500 from Rama and Sukh Lal, both sons of Rualu and thereafter from Smt. Sandya Devi in the year 1983. The grievance of the appellants is that Bhagat Ram, predecessor-in-interest of the respondents got himself entered as tenant on the suit land under co- Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 owner Rualu, such entries are wrong, illegal and have been incorporated behind the back of the appellants. The order dated 29.10.1982 of Assistant Collector, 2nd Grade, Hamirpur is illegal and does not bind the appellants. Rualu had died on 25.1.1972 and, therefore, there is no question of Bhagat Ram being recorded as tenant under him. The appellants came to know the entries of tenancy in July, 1983 during consolidation and thereafter, the suit was filed. It is also the case of the appellants that remaining co-owners in the khata have not been impleaded as parties as they do not deny the right, interest of the appellants and no relief has been claimed against them. 3. The suit was contested by the respondents, who took preliminary objections of maintainability, estoppel, non-joinder of necessary parties, limitation, lack of cause of action, locus-standi and valuation. On merits, it has been denied that appellants are owners in possession of the suit land. The case of the respondents is that they are tenants at Will on payment of rent through their ancestors on the suit land. The purchase of the suit land by appellants has been admitted. The possession of the appellants on the suit land was denied. In the correction application all the co-owners, including appellants were impleaded as parties and the application was allowed on 29.10.1982 by Assistant Collector, 2nd Grade. The death of Rualu in the year 1972 was not denied. The respondents were ordered to be entered as tenants at Will under the appellants and other co-owners in khata No. 20. The appellants filed replication and reasserted their stand. 4. On the pleadings of the parties, the following issues were framed: 1. Whether the suit is not maintainable in the present form? …..OPD 2. Whether the plaintiff is estopped to file the present 3 suit by his act and conduct? ….OPD. 3. Whether the suit is bad for non-joinder of necessary parties? ….OPD 4. Whether the suit is barred by limitation? …..OPD. 5. Whether the plaintiffs have no locus standi to file the present suit? ….OPD 6. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? 0.P. Parties. 7. Whether the defendant is tenant-at-will in possession over the land in suit? ..OPD. 8. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? ..OPP 9. Relief. Issues No. 1, 4, 5 and 7 were answered in affirmative whereas, issues No. 2, 3, 6, 8 and 9 were answered in negative and the suit was dismissed. The matter was carried in appeal and learned District Judge accepted the appeal on 30.11.1991, which was assailed in R.S.A. No. 200 of 1992 and on 22.9.1997 the case was remanded to the learned District Judge. After the remand, learned District Judge dismissed the appeal on 7.4.1999. The decision dated 7.4.1999 has been assailed in present Appeal, which has been admitted on following substantial questions of law:- 1. Whether the learned lower Appellate court is right in non-suiting the appellants on the ground of non- joinder of necessary parties especially when the said issue having not been pressed by the respondents/defendants before the learned trial Court? 2. Whether the learned lower appellate Court is right in dismissing the suit of the appellants especially when it has been held that the order assailed in the suit Ext. P-5 is without jurisdiction having been passed by Assistant Collector-II Grade? 3. Whether the learned trial court has rightly applied Article 100 of the Limitation Act whereas, in the present case, it was to be governed by the provisions of Article 58 of the Limitation Act? 5. I have heard learned counsel for the parties and have 4 also gone through the record. The learned counsel for the appellants has submitted that issue No. 3 was not pressed by the respondents in the trial Court and, therefore, the learned trial Court had rightly decided the said issue in favour of the appellants but learned lower Appellate Court has erred in reversing the findings on issue No.3 of necessary parties. It has been submitted that suit of the appellants was wrongly dismissed after recording the findings that order dated 29.10.1982, Ext. P-5 is without jurisdiction. The learned counsel for the respondents has supported the impugned judgment. The learned counsel for the appellants on 22.3.2010 has submitted that in view of the findings recorded by learned District Judge on issue No.4 of limitation the substantial question of law No.6 ( which was given No.3) of limitation does not survive. The substantial question of law No.3 is thus decided against appellants as not pressed. 6. The respondents in the written statement by way of preliminary objection No.3 have pleaded that necessary parties have not been impleaded in the suit. The issue No. 3 of necessary parties has also been framed. No doubt, under issue No.3, learned Sub Judge has observed that issue No.3 has not been pressed but learned Sub Judge has given independent finding also under issue No.3 by holding that in view of pleadings as well as evidence on record, the suit is not bad for want of necessary parties. 7. Order 1 Rule 9 CPC is as follows: “No suit shall be defeated by reason of the misjoinder 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: Provided that nothing in this rule shall apply to non-joinder of a necessary party.” The proviso to Rule 9 is clear to the effect that Rule 9 shall not apply to non-joinder of a necessary party. In other words, a suit 5 shall defeat in absence of necessary parties. 8. Ext. P-5 dated 29.10.1982 is the order of Assistant Collector, 2nd Grade on the application of Bhagat Ram, predecessor-in- interest of the respondents. In Ext. P-5 there were in all 32 respondents including Tara Chand, Jhonda, Mangat Ram. It has also been prayed in the plaint that decision of the Assistant Collector, 2nd Grade, Hamirpur, regarding correction of entries is illegal and void. On the face of this prayer, it was incumbent upon the appellants to implead all persons in whose favour order dated 29.10.1982, Ext. P-5 was passed. The learned District Judge has rightly held that in presence of Ext. P-5, the suit could not have been filed without impleading all co- owners. The appellants themselves have challenged the order of Assistant collector, 2nd Grade, which is in favour of several persons, but admittedly all such persons were not made parties in the plaint. In these circumstances, substantial question of law No.1 is decided against the appellants. 9. The learned District Judge has held that dispute between land lord and tenant in terms of Rule 29 of the H.P. Tenancy and Land Reforms Rules, 1975 is required to be determined by Assistant Collector, 1st Grade and not by Assistant Collector, 2nd Grade, who has actually passed the order dated 29.10.1982 Ext. P-5. The dispute before the Assistant Collector was whether predecessor-in-interest of respondents was tenant on the suit land, such dispute is required to be decided under Rule 29 by Assistant Collector, 1st Grade. The order dated 29.10.1982, Ext. P-5 has been passed by Assistant Collector, 2nd Grade, therefore, Ext. P-5 is without jurisdiction and learned District Judge has rightly held the said order to be without jurisdiction. But despite the fact that order dated 29.10.1982 has been held to be without jurisdiction, it does not affect the ultimate decision on merits. 6 The issue No.7 is regarding the tenancy of predecessor-in-interest of the respondents on the suit land, which has been independently decided by both the Courts below in favour of the respondents. The respondents were found to be tenants under owners through their predecessor on the suit land even in the absence of Ext.P-5, hence substantial question of law No.2 is also decided against the appellants. 10. No other point was urged. 11. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. (Kuldip Singh ) Judge. May 3, 2010. (kck/sks )