' This appeal has arisen out of a judgment passed by the learned IV Additional District Judge, Hyderabad, on 27th September, 1978 whereby he Kt aside the judgment and decree passed in Suit No, 275 of 1972, by the Extra Joint Civil Judge No, III, and while remanding the case directed the Court to bring on record the descendants of one Muhammad Juman as disclosed in application (Exh. 50) and then dispose of the case in accordance with the law.
' The applicants filed Suit No, 275 of 1972 in the Court of Civil Judge at Hyderabad, for declaration, partition and separate possession of agriculture land situated in Deh Theba, Taluka Hyderabad, the details whereof are given in the Schedule to the plaint. The appellants claim that the suit land originally belonged to Tamachi and Misri in equal shares. The appellants claim to be the successors of Tamachi and according to them the respondents are the, descendants of Misri. The appellants in the suit in equal shares.
2. The respondents filed their written statement dated 26th September, 1972, and in para. 6 thereof they pleaded that the suit is bad for non-joinder of necessary parties while in para. 16 they stated that they have nothing to do with survey numbers enumerated in the Schedule to the plaint and that "the referred land neither belongs to the plaintiffs nor to the defendants". The trial Court framed the issues on 23-1-1973, and Issue No, 2 reads as follows :-- "Whether the suit is bad for non-joinder of necessary parties?"
3. An application under Order 1, rule 10, C. P. C. Was filed on 1-7-1974, by the appellants/plaintiffs supported by the affidavit of one of the appellants wherein it was prayed that Shafiq Ahmed and 6 others (who are the descendants of Muhammad Juman), be joined as defendants in the suit as they had already filed a separate suit for declaration possession and mesne profits being Suit No, 175 of 1974, in the Court of Senior Civil Judge, Hyderabad and have claimed certain share in the land involved in the present suit. It was further stated in the aforesaid affidavit that no final and conclusive adjudication could be made in the suit filed by them (i,e, Suit No, 275/72) unless the proposed defendants were joined as parties to the suit and that they were "necessary parties." The parties sought to be joined claim to be the purchasers of share/interest in the land included in the land which is subject-matter of this very suit from one Saleh predecessor of respondents as far back as 1931.
' This application, however, was rejected by the learned trial Court by order passed on 2nd July, 1974 mainly on the ground that it was a belated application, the suit having reached the stage of arguments.
4. The learned trial Court, thereafter by judgment and decree passed on 30th July, 1974 while holding Issue No, 2 against the respondents with the observations that the objection to non-joinder of the party was belated and the suit could not be dismissed for non-joinder of a necessary party, granted the declaration of the title of the appellants/plaintiffs as prayed in para. 12(a) of the plaint to the effect that the plaintiffs/appellants are owners of the suit land according to their shares as per Muhammadan Law as shown in the Schedule "A", to the plaint. The rest of the prayers for partition and separate possession were disallowed.
5. The respondents (defendants) filed an appeal (Civil Appeal No, 274 of 1974) in the Court of District Judge, Hyderabad, and it was ultimately transferred to the Court of IV Additional District Judge for disposal. Before the First Appellate Court, the present respondents moved an application for joinder of the same persons (Shafiq Ahmed and others) for whose joinder earlier an application has been filed before the trial Court by the present appellants themselves. This application came up for hearing but was dismissed as not pressed because both the parties conceded that the point raised therein could well be adjudicated upon at the time of hearing of the main appeals. The appeal thus came up for final hearing before the learned First Appellate Court, who by judgment passed on 27th September, 1978, set aside the judgment and decree of the trial Court, directed the joinder of the descendants of late Muhammad Juman as defendants and remanded the case for disposal in accordance with the law.
6. It is conceded by Mr. Kazi Abdul Rahim learned counsel for the appellants that they had made an application for joinder of Shafiq Ahmed and others, the same parties for whose joinder the learned 1st Appellate Court has given the direction while remanding the case. It is also admitted by the learned counsel that in some of Survey numbers which are subject-matter of the suit, the proposed defendants (Shafiq Ahmed and others i,e, the descendants of late Muhammad Juman have interest, but he is unable to give the details. It however, appears that the parties sought to be joined have substantial interest in the land in respect of which they prayed in their suit for declaration, partition and mesne profits.
7. It would be noticed from the certified copy of Deh Form VII, Exh. 34 that Muhammad Juman predecessor of the parties sought to be joined, had acquired interest in land (the extent whereof need not be discussed here) which is subject-matter of the suit from the predecessor of the present respondents as far back as 1931 when the name of Muhammad Juman was duly mutated in the revenue records.
8. Mr. Kazi Abdul Rahim learned counsel for the appellants has advanced two-fold arguments in support of this appeal. His first contention is that the order of the trial Court is not covered by the provisions of rule 21, 23 or 25 of Order XLI, C. P. C. And his second submission is that no objection was raised to the non-joinder of the parties in the trial Court and that even if any such objection was raised the same should be deemed to have been waived by the respondents.
9. I have carefully considered the arguments of the learned counsel for the appellants and in my view the same could not be substantiated. As regard the first submission of the learned counsel it would suffice to say that under Order I, rule 10, sub-rule (2), C. P. C. It is open to the Appellate Court to implead a new party provided there is no introduction of entirely new cause of action. Mr. Kazi Abdul Rahim learned counsel for the appellants does not contend that joinder of these persons would introduce a new cause of action. His submission is that this power could be exercised only at the stage of the trial of the suit before the original Court and not at the appellate stage. It may however, be mentioned that Order 1, rule 10 (2), C. P. C. Itself provides that the name of any party who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle the questions involved in the suit be added and that this power can be exercised at any stage of the proceedings even at the appellate stage subject to the well-recognised principles laid down by the Courts. Reference may also be made to section 107 (2), C. P. C. Which also recognises the principle that the appellate Court, subject to conditions and limitations prescribed under subsection (1), shall have the same powers and perform as nearly as may be the same duties as are conferred and imposed by the Code in Courts of original jurisdiction in respect of suit instituted therein. This submission of the learned counsel therefore, cannot be accepted.
10. The present suit as stated above is for declaration, partition and separate possession and it would be advantageous here to reproduce the provisions of Order XX, rule 18, C. P. C. Which clearly support the proposition that the proposed defendants who have or claim to have interest in the land are necessary parties and ought to have been joined in the suit.
"Order XX, rule 18, C. P. C."
"Decree in suit for partition of property or separate possession of a share therein. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then-
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property but shall direct such partition or separation to be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54 ;
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."
' I may also refer here to the case reported in (Noor Muhammad and others v. Zainul Abedin and others (1) wherein it has been laid down as follows :- "Not only must the parties themselves to the partition suit take care that they bring before the Court all persons who are or may be interested in what it is proposed to divide but that the duty lies upon the Court itself in matters such as these to see that it has before it every one whose presence is necessary to enable it to make the declaration which it is required to make by Order XX, rule 18.
The rights of the parties cannot be judicially determined in the absence of the persons interested to contest them.
' When Order XX, rule 18, lays upon the Court the duty of declaring what the rights of the parties interested in the property are it means that there shall be a judicial declaration and not a mere ex parte declaration in the absence of some of the parties." {{FOOT NOTE}}
(1) AIR 1940 All. 399 {{FOOT NOTE}} ' The learned Judges in the said case have also further observed :- "Where the Appellate Court is of opinion that a certain person is a necessary party and ought to have been impleaded in a partition suit under Order XX, rule 18 the proper procedure is to remand the case to the Court of first instance with a direction that the Court should implead that person and then proceed to dispose of the case."
11. It would also be advantageous to refer here to the following observations of Hon'ble Mr. Justice Karam Elahee Chauhan (as he then was) in the case reported in PLD 1973 Note 13 at p. 22 :- ' It therefore, seems clear that co-owner cannot apply for the partition of some of the fields included in the joint holding without including the other fields also unless other co-owner agrees to it. It is obvious that to allow a partial partition might produce a very unfair result."
12. It may be pointed out that a suit for partition has some distinct features. In such a suit every co- sharer whether he is included in the category of plaintiffs or defendants, stands in the position of a plaintiff, and the ends of justice demand that in a suit for partition, the Court can and ought to invoke its power under Order I, rule 10 of Civil Procedure Code, and allow the necessary parties to a be added so as to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. If any authority for this proposition is needed, reference may be made to the case of Fazlur Rehman v. Syed All (2).
13. The other contention of the learned counsel for the appellants is that no objection was taken in the trial Court to the non-joinder of the parties, and even if it is found that any such objection was taken the same should be deemed to have been waived, it may be observed that there is no force in this submission, and sufficient answer to the same is found in the law cited and discussed above. Moreover the respondents have expressly raised objection at the earliest in their written statement wherein they have stated that "the suit is bad for non-joinder of necessary patties." The trial Court had also framed Issue No, 2, which has been reproduced above.
14. The first appellate Court in the ends of justice has ordered for joinder of the necessary parties and in my opinion the presence of the proposed defendants in the suit is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved. I may also observe here that in view of the application and affidavit filed by the appellants themselves seeking the joinder of the proposed defendants as parties to the suit on the express plea that they are "necessary parties" to the present suit and that no final and conclusive adjudication could be made in the suit until and unless the proposed defendants are joined as parties", it is not open to the appellants to contend that the learned First Appellate Court should not have ordered their joinder as necessary parties in the suit. The objection to non-joinder was raised at the earliest by the respondent, and in any case the appellate Court could order the joinder of necessary parties suo motu without any application of either party. No question of waiver. C therefore, arises in this case.
15. No other point has been raised. {{FOOT NOTE}} PLD 1967 Dacca 809 {{FOOT NOTE}}
16. In view of the above, I dismiss the appeal but in the circumstances of the case with no order as to costs.
' I may clarify here that any observation on merits shall be deemed to be tentative and not binding on the parties as the case has been remanded for disposal in accordance with the law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.