- (1.) The following substantial question of law arises for consideration in the second appeal:- Whether the Courts below were justified in dismissing the plaintiff's suit for non joinder of necessary parties namely all other co-sharers, when the plaintiff had sought permission to prosecute the suit on behalf of himself and for other proprietors by moving an application under Order 1 Rule 8 which was allowed by the Court below
(2.) The suit for partition was sought at the instance of the plaintiff claiming himself to be co-sharer in possession of the property in abadi which was sought to be encroached by the defendant in excess of the extent held by him. The application had been filed under Order 1 Rule 8 for prosecuting the case on behalf of the co-sharers with reference to abadi land and such permission had been granted as well. However, on a contest taken by the defendant that a suit for partition cannot be instituted without making all the co-sharers as parties, the Court upheld the contention and found that that suit was not maintainable in the absence of all the co-sharers in the property for partition. The Appellate Court affirmed the same.
(3.) If the Court had allowed for prosecution of the suit in representative capacity, it would be impermissible for the Court to also observe that the suit was bad for non joinder of the necessary parties namely the co-sharers whom the plaintiff was representing. They were for all practical purposes to be treated as persons actually in Court. There was no question of an objection being taken that they had not been impleaded. The permission itself ought to deem such an impleadment. That is why Order 1 Rule 8(6) makes the decision binding on all persons on whose behalf the suit is instituted. The raison d'etre for introduction of explanation VI to Section 11 CPC in binding all persons on whose behalf a suit is filed, although they are not actually impleaded, follows the same principle of deeming them to be present. However, I am of the view that the enquiry regarding the encroachment or partition of what the plaintiff claims in such a way that the property in his alleged possession is accorded to him in full measure in the partition proceedings, it will be only appropriate that all the co-sharers are brought before Court as parties and the adjudication rendered in the manner sought and in the manner defended by the defendant that the plaintiff is not entitled to such a prayer. The order passed already allowing the plaintiff to sue as in a representative capacity stands modified and all the co-sharers are directed to be impleaded as party defendants. The judgment passed by the Courts below is set aside and the matter is remitted to the trial Court. The plaintiff shall be at liberty to file an application for impleadment of all the co-sharers in relation to the said property within 8 weeks from the date of receipt of copy of the order. The Court shall consider the fact that the suit was instituted nearly three decades earlier and shall accord the utmost primacy for its disposal in accordance with law after service of notice to all the persons, who could be affected by such adjudication.;