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Second Appeal No. 48 of 1948, decided on 10th June, 1949.

Civil Procedure Code (Act V of 1908), O. I, r. 10 (2)‑Suit against some only of the persons in actual possession‑Plaintiff claiming khas possession‑‑Suit, held, unwarranted‑Court's discretion under O. I, r. 10 (2)‑Convenience of parties and necessity to provide for full and final adjudication of suit to be kept in view.

A suit against some only of the persons in actual possession of land is unwarranted where the plaintiff claims khas possession.

In exercising the discretion conferred by O. I, rule 10 (2), civil Procedure Code it is proper to consider the convenience of both parties as well as the necessity of providing conditions in which a full and final adjudication may be made of the dispute between the parties. [174].

A I R 1928 Cal. 138 ; A I R 1929 Cal. 669 ref. on.

Ghulam Mohy‑ud‑Din Khan for Appellant.

S. H. Jafri for Respondent.

.‑The suit out of which this appeal arises was brought by Mst. Fazlan against eight persons, for possession of certain land which had belonged to her father Ibrahim, but after his death had been owned first by Ibrahim's mother Mst. Bhagan for her lifetime and after her by Ibrahim's widow Mst. Mirzan. On the death of Mst. Mirzan the land was mutated in favour of collaterals of the deceased Ibrahim, whereupon his daughter Mst. Fazlan brought the present suit. It was decreed by the first Court on the ground that the defendants had failed to show that they were collaterally related to Ibrahim by descent from a common ancestor. The defendants appealed to the District Judge, who upheld the finding of the trial Court on the point of collateral relationship and dismissed the appeal. The defendants have now come up before this Court in second appeal.

The only ground taken before me by the learned counsel for the appellants is that there are eight persons in possession of the suit land who were not cited by the plaintiff as defendants in the suit. These eight persons are among the collaterals in whose favour the land was mutated after the death of Mst. Mirzan. The record also shows that with the exception of one person, who was a minor, these persons were also in cultivating possession of the suit land prior to the death of Mst. Mirzan being shown as occupying under a plea of disputed ownership. From this circumstance, it may reasonably be inferred that these eight persons are not likely to hand over possession to Mst. Fazlan without contest.

The learned counsel for the appellants has also cited authority to the effect that in such circumstances a suit is not competent, and the proper course for an Appellate Court is to remand the case where sufficient justification appears for allowing this concession to the plaintiff. Referring to O. I, r. 10 (2), Civil Procedure Code, which gives power to the Court to add the name of any person, who should have been added as defendant or‑ whose presence is necessary for effectual and complete adjudication, learned counsel for the appellants cited two Calcutta authorities, namely, Arundadoya Chakraburty v. Muhammad Ali (A I R 1928 Cal. 138) and Mokshud Mondal v. Khedu Mondal. (A I R 1929 Cal. 669), in support of the proposition that a suit against some only of the persons in actual possession of land is unwarranted where the plaintiff claims khas possession. These are Division Bench decisions and their authority cannot be doubted. No judgment to the opposite effect has been cited before me by the learned counsel for the respondents, who has confined himself to saying that the power given by O. I. r. 10 (2), Civil Procedure Code, is discretionary and that the Courts below have exercised this discretion against the contention now put forward. This is, however, not a correct statement of fact ; the plea that the list of defendants was not complete was taken in a written statement, filed on the 13th December 1946, after the making of an interim order on the7th November 1946 by the trial Court to the effect that a suit for a mere declaration could not proceed, and there is nothing in the proceedings or the judgment of either of the Courts below to show that they had considered this particular objection raised by the defendants.

In exercising the discretion conferred by Q. I, r. 10 (2) Civil Procedure Code, it is proper to consider the convenience of both parties as well as the necessity of providing conditions in which a full and final adjudication may be made of the dispute between the parties. If the case be now remanded, and permission be granted to the plaintiff to implead as defendants the persons whose names are cited in the written statement of the 13th December 1946, there will undoubtedly be prolongation of the litigation. On the other hand, if no remand be ordered and. the case be decided on the record as it stands, it seems abundantly clear that the decree‑holder will have to face very great difficulty in obtaining any satisfaction under the present decree and that in all probability she will have to file a fresh suit against the persons whom she failed to implead in the first instance. The advantage of the first mentioned course is that it, holds out a reasonable prospect of the dispute being finally resolved by the Court in a single suit.

Consequently, following the principle of the Calcutta decisions cited above, I allow this appeal and setting aside the decrees of the Courts below, I remand the case to the trial Court for fresh decision, after impleading the eight persons who are stated in the written statement of the 13th December, 1946, to be in possession of the suit land and who have not hitherto been impleaded as defendants. The newly impleaded defendants will of course be permitted to raise pleas, produce evidence and be heard in arguments at the close of the case; the plaintiff may produce evidence relevant to the new pleas, if any, and in rebuttal of any evidence which the newly impleaded defendants may produce. No further opportunity should be allowed to the defendants who were already impleaded on the 13th December, 1946, to produce evidence, except in relation to any new plea which may be raised by the newly impleaded defendants, and which may affect the possession of the defendants who were first impleaded, but these defendants may be permitted to address the Court in arguments at. the close of the case. The parties will appear in the Court below on the 11th July for further proceedings. Costs will be costs in the cause.

A.H . Case remanded.

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