Case Note & Summary
The case involves a second appeal arising from a suit for partition and possession of agricultural land. The respondents (plaintiffs) filed the suit against the predecessor of the appellants (defendant), claiming a 1/2 share in the suit property. The parties were unanimous about the genealogy showing that the property was ancestral and that there were other co-sharers besides the parties before the court. The trial court had decreed the suit, but the appellate court reversed the decision, holding that the suit was bad for non-joinder of necessary parties because all co-sharers were not made parties. The appellants, as legal representatives of the deceased defendant, challenged this appellate decision in the second appeal. The substantial questions of law framed were: (i) whether all sharers and co-partners are necessary parties in a partition suit; (ii) whether the suit is bad for non-joinder; and (iii) whether the appellate court's observation in para 10 regarding non-joinder was proper. The High Court, after hearing arguments, held that in a suit for partition and possession, all co-sharers and co-partners are indeed necessary parties. The failure to join them renders the suit liable to dismissal. The court found that the appellate court's observation in para 10 was proper and that the suit was correctly dismissed for non-joinder of necessary parties. Consequently, the second appeal was allowed, and the judgment of the appellate court was confirmed. The court did not find any merit in the respondents' cross-objections or civil application, which were dismissed.
Headnote
A) Civil Procedure - Partition Suit - Necessary Parties - All co-sharers and co-partners are necessary parties in a suit for partition and possession - The suit was filed by respondents claiming 1/2 share in suit property against predecessor of appellants - The appellate court had dismissed the suit for non-joinder of necessary parties - Held that the appellate court's observation regarding non-joinder was proper and the suit was bad for non-joinder (Paras 1-3).
Issue of Consideration
Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties; whether suit for partition and possession is bad for non-joinder of necessary parties; whether the observation regarding non-joinder of necessary parties made by appellate court in para 10 of the judgment are proper.
Final Decision
The Second Appeal is allowed. The judgment and order of the appellate court dismissing the suit for non-joinder of necessary parties is confirmed. The Cross Objection and Civil Application are dismissed.
Law Points
- Necessary parties in partition suit
- Non-joinder of necessary parties
- Co-sharers and co-partners must be joined
Case Details
2022 LawText (BOM) (04) 6
Second Appeal No.249 of 1992 with X.OBJ/41/2022 in SA/249/1992 with CA/1776/1992 in SA/249/1992
Mr. S.B. Yawalkar h/f. Mr. B.R. Yawalkar for Appellants, Mr. S.V. Dixit for Respondent Nos.1 to 5
Late Gumansing Shivram Patil, since deceased through his legal representatives: Abhiman Gumansing Patil, Bhaidas Gumansing Patil, Bhagwan Gumansing Patil, Tirunabai w/o Gumansing Patil, Neelabai d/o Gumansing Patil, Sindhubai w/o Santosh Patil, Sanjubai w/o Subhash Patil
Bhika Harsing Patil, Ekanath Harsing Patil, Sayabai w/o Harsing Patil, Kokilabai w/o Shivaji Patil, Sakhubai w/o Raghunath Patil
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Nature of Litigation
Second appeal against appellate court judgment dismissing suit for partition and possession for non-joinder of necessary parties.
Remedy Sought
Appellants sought to uphold the appellate court's dismissal of the suit; respondents sought to restore the trial court's decree.
Filing Reason
The respondents filed a suit for partition and possession claiming 1/2 share in suit property against the predecessor of appellants, but did not join all co-sharers.
Previous Decisions
Trial court decreed the suit; appellate court reversed and dismissed the suit for non-joinder of necessary parties.
Issues
Whether all sharers and co-partners are necessary parties in a suit for partition and possession?
Whether the suit for partition and possession is bad for non-joinder of necessary parties?
Whether the appellate court's observation regarding non-joinder in para 10 of its judgment is proper?
Submissions/Arguments
Appellants argued that the suit was bad for non-joinder of necessary parties as all co-sharers were not made parties.
Respondents argued that the suit was maintainable and the appellate court erred in dismissing it.
Ratio Decidendi
In a suit for partition and possession, all co-sharers and co-partners are necessary parties. Non-joinder of any necessary party renders the suit bad and liable to dismissal.
Judgment Excerpts
Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
Whether suit for partition and possession is bad for non-joinder of necessary parties, and therefore, ought to have been dismissed?
Procedural History
The respondents filed a suit for partition and possession in the trial court, which decreed the suit. The appellants (defendant's legal representatives) appealed to the appellate court, which reversed the trial court's decision and dismissed the suit for non-joinder of necessary parties. The appellants then filed the present second appeal, which was admitted on 07.07.1992 on substantial questions of law. The High Court heard the appeal and delivered judgment on 22.04.2022.
Acts & Sections
- Code of Civil Procedure, 1908: Order 1 Rule 9, Order 1 Rule 10
