Ramaswami, J. - (1.) These appeals are brought by special leave from the judgment of the High Court of Madhya Pradesh dated 16th April, 1963 in First Appeal No. 217 of 1959, whereby the High Court modified partly the judgment of the first Additional District Judge, Jabalpur dismissing Civil Suit No. 10-A of 1954.
(2.) The suit was instituted against the State of Madhya Pradesh by Beohar Raghubir Singh and his three grandsons. Beohar Raghubir Singh's son Beohar Rajendra Sinha, was a pro forma defendant. A notice under Section 80 of the Civil Procedure Code had been given by Raghubir Singh on 11th January, 1954. Plaintiffs 2, 3 and 4, his grand-sons were joined as plaintiffs because in a partition made subsequent to the giving of the notice, they were each entitled to 1/5th share along with the first plaintiff. Beohar Rajendra Sinha was joined as a defendant because he did not choose to join as the plaintiff. The plaintiffs sought a declaration (1) that the three nazul plots in suit had been in possession of the plaintiffs and their predecessors in their own right from time immemorial and their status was that a Raiyat Sarkar; and (2) that the order of the State Government in the Survey and Settlement Department refusing to recognise their possession over the plots was wrong and ultra vires. The dispute relates to Phoota Tal a tank situated within the town of Jabalpur. It was plot No. 282 in the settlement of 1863 A. D. Its area then was 5.24 acres. It was recorded as Malkiat Sarkar and in the last column there was an entry showing possession of Aman Singh Thakur Prasad. The next settlement took place in 1890-91. The survey number of Phoota Tal was changed to plot No. 325. Its area remained the same, it was recorded as "water (pani)" and in the last column, the entry showed the possession of Beohar Narpatsingh Raghubir Singh. The third settlement took place in 1909-10. The plot number of Phoota Tal was then changed to 327. Its area remained the same, it was still recorded as "water" but there was no entry in favour of any one showing possession. The nazul settlement took place in 1922-23. In this settlement the tank was given new numbers 33, 34, 35, 36, 37 and 171. Its area was recorded as 5.24 acres. In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur. The land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as "milkiat sarkar". There was no entry regarding possession in the remarks column so far as the remaining land was concerned. The plaintiffs alleged that Thakur Prasad and Aman Singh were their ancestors, that they had been in continuous possession of the disputed land and the omission to record their possession in the last two settlements of 1909-10 and 1922-23 was due to some oversight. In 1948 the first plaintiff made an application for correction to the Deputy Commissioner, Jabalpur, who made an order in his favour Ex. P-5. The order of the Deputy Commissioner was however set aside by the State Government on 28th May, 1953 and it was held that the plaintiffs had no title to the disputed land. The plaintiff therefore prayed for a declaration of the title to the disputed plots and for the correction of the entry in the settlement record showing the status of the plaintiff as that of "Raiyat Sarkar". The suit was contested by the state of Madhya Pradesh. It was urged that the plaintiff had no possession over the disputed land and the order of the State Government dated 28th May, 1953 was correct. It was contended that plaintiffs 2, 3 and 4 had no right to institute the suit because no notice under Section 80 of the Civil Procedure Code was given on their behalf. The suit was not contested by the second defendant Beohar Rajendra Sinha. By its judgment dated 24th January, l959 the trial Court held that there was no documentary evidence from 1891 to 1932 to support the possession of the ancestors of the plaintiffs regarding Phoota Tal. The trial Court also held that in all the settlement entries, the land was recorded as belonging to the Government "Milkiat Sarkar". In any event, between 1891 to 1932 there was no evidence regarding the user of the property by the plaintiffs and in the subsequent years a part of the property was found in possession of the Municipal Committee. The trial Court dismissed the suit. Against the judgment of the trial Court the plaintiffs preferred an appeal to the High Court. The High Court held in the first place that the notice Ex. P-8 was not in conformity with Section 80 of the Civil Procedure Code. The High Court held that Beohar Raghubir Singh had lost the right to represent the joint family as karta at the time of institution of the suit because there had been a severance of joint status and the notice served by Beohar Raghubir Singh could not enure to the benefit of the other plaintiffs. On the merits of the case, the High Court found that the plaintiffs had established their possession for the statutory period of 60 years. The High Court held that the plaintiffs had acquired the right of Raiyat Sarkar, and that the order of the State Government refusing to correct the revenue record was illegal. On these findings the High Court modified the judgment of the trial Court to the extent that there was a declaration in favour of the plaintiffs that they were entitled to 1/5th share of the property in dispute and the claim regarding the 4/5th share was dismissed. The order of the State Government dated 28th May, 1953 refusing to recognise the possession of the plaintiffs was held to be wrong and illegal.
(3.) The first question to be considered in these appeals is whether the High Court was right in holding that the notice given under Section 80 of the Civil Procedure Code by the first plaintiff was effective only with regard to Raghubir Singh and the notice was ineffective with regard to the other plaintiffs and therefore Raghubir Singh alone was entitled to a declaration as regards the 1/5th share of the disputed plot. On behalf of defendant No. 1 it was contended by Mr. Shroff that at the time of giving notice the plaintiff and the second defendant were joint and plaintiff No. 1 Raghubir Singh was karta of the joint family. The notice was given on 11th January, 1954 and the suit was instituted on 20th July, 1954. It was admitted that between these two dates there was a disruption of the joint family of which Raghubir Singh was a karta. It was argued that the right of the first plaintiff to represent the family had come to an end before the institution of the suit, and hence plaintiffs 2, 3 and 4 had to comply individually with the provisions of Section 80 of the Civil Procedure Code before appearing as plaintiffs in the suit. In our opinion, there is no justification for this argument. We consider that there is substantial identity between the person giving the notice and the persons filing the suit in the present case. At the time of giving notice the first plaintiff Beohar Raghubir Singh was admittedly the eldest member of the joint family and being a karta he was entitled to represent the joint family in all its affairs. The cause of action had accrued at the time of giving of the notice and it was not necessary to give a second notice merely because there was a severance of the joint family, before 20th July, 1954 when the suit was actually instituted. It is obvious that the notice was given by Beohar Raghubar Singh as a representative of the joint family and in view of the subsequent partition the suit had to be instituted by all the divided members of the joint family. We are of the opinion that the notice given by Beohar Raghubar Singh on 11th January, 1954 was sufficient in law to sustain a suit brought by all the divided coparceners who must be deemed to be as much the authors of the notice as the karta who was the actual signatory of the notice. There is substantial identity between the person giving the notice and the persons bringing the suit in the present case and the argument of defendant No. 1 on this point must be rejected.;