- (1.) The facts leading to this appeal are that Jai Narain, Birbal, Umrao, Bhagwana, Nathi and Jhabar had filed a suit against Onkar, Ramdev and Gopal (defendant Nos. 1 to 3 respectively and now appellants). The plaintiffs had prayed of a decree for declaration that they and the proforma defendant Nos. 4 to 7 were in possession of the suit land as co-sharers of shamilat Thok Roop Chand. They also prayed for permanent injunction restraining defendant Nos. 1 to 3 from interfering with their possession as well as that of proforma defendant Nos. 4 to 7 over the suit land. According to the allegations in the plaint, the various plaintiffs were separately in possession of separate parcels of the suit land detailed in plaint para No. 1 as co-sharers. With some of the plaintiffs, the proforma defendants were also said to be in possession. The contesting defendants is collusion with the patwari got themselves recorded in the revenue papers as cultivators of those parcels of land though they had never been in possession of them. Taking advantage of those wrong entries, the contesting defendants were trying to interfere with the possession of the plaintiffs and the proforma defendants over the suit land. The contesting defendants Onkar, Ramdev and Gopal filed a joint written statement contesting the suit. According to them the plaintiffs were never in possession of any part of the suit land and on the other hand, they (i.e. contesting defendants) have been in its possession since long as co-sharers and even now they were in possession. They were co-sharers in shamilat Thok Roop Chand. The land had been attached in proceedings under Section 145 of the Code of Criminal Procedure and, therefore, the suit was not maintainable in the present form. It was also pleaded that the different plaintiffs have prayed relief in respect of separate parcels of land and then ought to have filed separate suits. It was also alleged that there were other co-sharers in Thok Roop Chand and they were necessary parties. Upon the allegations of the parties the learned trial Court framed the following issues - (1) Whether the plaintiffs are co-sharers in the possession of the land in suit as alleged in para No. 1 of the plaint ? (2) Whether that is not suit is not maintainable in the present form ? (3) Whether the suit is bad for non-joinder of necessary party as alleged ? (4) Relief. Under issue No. 1 it was held that the plaintiffs were not in actual physical possession of the suit land on the date of the suit or prior to that. Under issue No. 2 it was held that as the different plaintiffs were claiming separate possession of different parts of the suit land, therefore, the suit was bad for multifariousness. Under issue No. 3 it was held that other co-sharers were not necessary parties to the suit as no relief had been claimed against them. As a result of the findings under issue Nos. 1 and 2, the plaintiffs' suit was dismissed. Feeling aggrieved, the plaintiffs filed an appeal which was heard by learned Senior Subordinate Judge (with Enhanced Appellate Powers), Narnaul. He upset the findings of the learned trial Court under issue Nos. 1 and 2. Consequently, he accepted the appeal, set aside the judgment and decree of the learned trial Court and decreed the suit of the plaintiffs. Contesting defendants have filed this second appeal.
(2.) The learned counsel for the appellants vehemently argued that the suit was bad for multifariousness. He pointed out that in plaint paragraph No. 1 it is alleged that plaintiff No. 1 is said to be in possession of land measuring 9 Marlas comprised in rectangle Nos. 29 Killa No. 19/6 while plaintiff No. 1 and defendant No. 4 are said to be in possession of land measuring 6 Kanals 12 Marlas comprised in rectangle No. 29 Killa Nos. 12/1 and 13/1 while plaintiff Nos. 2 to 6 are said to be in possession of land measuring 17 Marlas in equal shares comprised in rectangle No. 29, Killa No. 19/4. It is further alleged that plaintiff Nos. 2 to 6 are also in possession of land measuring 5 Kanals 4 Marlas comprised in rectangle No. 29 Killa No. 18/2 and 19/7 in which plaintiff No. 2 has half share and plaintiff Nos. 3 to 5 and defendant Nos. 5 to 7 have the other half while plaintiff Nos. 3 to 5 and defendant Nos. 5 to 7 are said to be in possession of land measuring 13 Marlas comprised in rectangle No. 29 Killa No. 19/3. He argued that from the above allegations it is clear that the different sets of plaintiffs are in possession of different parcels of land and one set of the plaintiffs has no concern with the parcel of the land said to be in possession of the other set of plaintiffs and defendants and the only common allegation is that defendant Nos. 1 to 3 have no connection with those parcels of land and they threaten to take illegal possession. Therefore the question that arises is whether these plaintiffs could join in one suit.
(3.) Order 1 Rule 1, Civil Procedure Code deals with the joining of the plaintiffs in one suit. It reads as follows:- "All persons may be joined in one suit as plaintiffs where- (a) Any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (b) If such persons brought separate suits, any common question of law or fact would arise.";