Atal Shrivastava v. Devprasad and another

Judgment

1. Atal Shrivastava, S/o Late Shri J.P.Shrivastava, aged abbut 41 years, R/o Tilak Nagar, In frontof Chhattisgarh Bhawan, Bilaspur, Tahsil and District Bilaspur (CG) Devprasad, son of Mohitram, aged 42 years, Caste Satnami, Tahsil R/6 Takliatpur, DistrictBilaspur(CG) Village Sakri, ResDondentNo.2/ Defendant No.2

2. State of Chhattisgarh, Collector, Bilaspur (CG) Bilaspur, through District Present: Shri Pawan Kesharwani, counsel for the appellant. Shri Ravi Maheshwari, counselfor respondeht No.1. Shri M.P.S.Bhatia, Deputy Govemment Advocate State/respondent N6.2. 'w J-% '^- First Appeal under Section 96 oftheCode of Civil PrQcedure JUDGMENT (Delivered on <??Januarv,2012) Per RadheShvam Sharma. J.: The instant appeal, preferred by the plaintiff, under Section 96 of the Code of Civil Procedure, 1908, is directed against judgment and decreedated 5-2-2011 passed by 1 Additional District Judge, Bilaspur in Civil Suit No.19-A/2009, whereby the suit, filed by the plaintiff/appellant for declaration of title and permaneht injunction, has been dismissed, 1 %»,• ^

Brief facts, as projected by the plaintiff/appellant, are that Manohar, son ofMangat Suryavanshi wasownerofa piece of land bearing Khasra No.259/3, area 0.50 acre (Q.202 hectare), situatedat 'the suit Village Mangla, P.H. No.21, R.l. Circle Bilaspur (henceforth land'), which Was subsequently purchased by Smt. Jotkunwar, widow of Nandram Satnami, resident of Sakri through a registered sale-deed dated 21-3-1975 and as such she becameowner of the suit land andcameinto possessipn thereof. During her lifetime, she gifted the suit land to Smt. Yashoda Bai, W/o Dhanaram Satnami throughagift-deecld^ted 3-2-1989. Since the suit land was received vide the gift-deed, Smt. Yashoda Bai could npt get her name recorded in the reyenue records and after her death, her legal heirs, namely, Ganesh.and Dinesh inherited the suit landand later on, theyexecuted agreement dated 8-6-2004 in favour of Kadaram, S/Q Ramkhilawan Jangde. Kadaram was grand son of the original ownerSmt.Jotkunwar.As such, the suit land got mutated in the ^ '^J)] <. / name of Kadaram. Kadaram sold out the suit land to the appellant/plaintiff thrQugh registered sale-deed dated 15-9-2004 and handed over him ownership and possession thereof. By virtue of the sale-deed, theappellant/plaintiffbecame owner ofthe suit land. On his making an application for mutation in therevenue records, an objection was raised by brothersof Kadaram, namely, Vikram and defendant No.1 Devprasad. The objection was allowed and ttie suit land was mutatecj in the name ofVikram, defendantNo.1 Devprasad and Kadaram. Subsequently, pn getting their shares out of the consideration of the sale, Vikram anddefendant No.1 Devprasad executed consent-deeds 28-10-2004 22-1-2008, '^^^%^%^^®- ^-5<."i%t /, ,^ ^' ^ .€- ^ t respectively, in favour of the appellanVplaintiff and as such the appellanVplaintiff became owner of the suit land and came in possession thereof from the date of its sale. Since, the suit land was mutated in the name of defendant No.1 Devprasad along with two others and he, even after executing consent-deed dated 22-1-2008 in favour of the appellanVplaintiff, was frying to sell out the suit land, therefore, theappellanVplaintiff preferred the civil syit for declaration of titleand peFmanent injunction over the suit land.

3. In his written statement, defendant No.1 Devprasad stated that he was owner of the suit land andwas in possession thereof. He had inherited the suit land from his grand mother Smt. .;:IJr.:'.; ..^\..'; ,.;.-..;.:...:,. .. . ,.' . ' .; ,. ,, Jotkunwar. His ancestors were cultivating the suit land and earning livelihood therefrom for the last 30-40 years. After their death, he was cultivating the suitland fo.r the last 20-25 years. The suit land was purchased by Nandram, husband of Smt. Jotkunwar from his agricultural inconf^e in the name of Smt. Jotkunwar from Manohar, son of Mangat Suryavanshi. Therefore, Smt. Jotkunwar didnot have right to gift the ;suit land. ^^After death of Smt Jotkynwar, her legal heirs were entitled to inhdrit the suit land. Smt. Jotkunwar didnot have right to execute gift-deed of thesuit land in favour of her daughter Yashoda B,ai qnly. There were two sons of Smt. Jotkunwar, namely, Mohitram and Ramkhilawan. After death of Mohitram, hjs son defendant No.1 Devprasad and widow Kainabai and after death of Ramkhilawan, his sonsKadaram, Bhagbaliand Vikram and. daughters Karichan, Sulochana,^ Ashlata, Hemlata were jointly Qultiyating the suit land and their names were ....- -..-.! C; L..: .;;•:: ^'. : r 4 y jointly recorded in the revenue records. The suit land is ancestral and joint property, therefore, Kadaram alone did not have right to execute its sale-deed dated 15-9-2004 registered in favour of the plaintiff. Sale-deed dated 15-9-2004 is void. Since, gift-deed dated 3-2-1989 was unregistered, therefore, Smt. Yashoda Bai did not acqyire any right by virtue thereof. Gift-deed dated 3-2-1989 was an ~/^ '];^ ^^ unregistered deed, therefore, under Section 122 of the Transfer of Property Act, 1882 (henceforth 'the Act, 1882')the sameisvoid. After death of Smt. Jotkunwar, her two sons, Mohitram and 11<- .•A -y ^ • Ramkhilawan were her legal heirs. After death of Mohitram, his son defendant No.1 Devprasad and wifeKainabai (DW-3) are his legal heirs. After death of F^amkhilaw^ sons Kadaram, Vikram and Bhagbali and daughters Pushplata, Ashlata and Hemlata etc. are legal heirs and they are necessary parties. The plaintiff has not made them party to the suit, therefore, the suit is not maintainable. Defendant No.1 Devprasad neither gave any consent nor executed any consent-agreemeht in fayourofthe plaintiff. Therefore, the suit filed bytheplaintiffdeseryestobedismissed.

4. The trial Court framed as many as ten issues and after appreciation of the evidence and documents available on record, recorded its findings that the plaintiff did not prove that Smt. Jotkunwar executed gift-deed in favour of Smt. Yashoda Bai. The said gift-deed was ah unregistered deed and it was not proved by the piaihtiff. The triaT Court further arrived atthe finding that Smt. Jotkuriwar Was owner of the suit land and the suit land is ancestral property. Kadaram alone did npt have righttosell thesuit land to '^.'?. •::M r1^: n: ^ ."^ .,^: w ^' theplaintiff. On the basisofsale-deeddated 15-9-2004, theplaintiff did notacquire any title over the suit land. The trial Court further held that the plaintiff didnot implead the necessary party to the suit, therefore, the suit was not maintainable and accordingly dismissed the suit.

5. The question for determination of this appeal is whether the findings recorded by the trial Court are erroneous and illegal?

6. Learned counsel for the appellant submitted thatin ordinary course it is npt ppen to the appellate Court to substitute its own exercise of discretipn for that of the trial Court, but if it appears to the appeljate Court that discretion is not exercjsed judicially or trial Court ignored relevant facts, it would be certainly open to the appellate Court. In' the Tnstant case, learned trial Court has wrongly appreciated the eviderice. He further argued that the documents Ex.P-2, consent letter and Ex.P-3,agreement are dulyproved by the appellant, The sale-cl^ed.executed by Kadaram in favour of the appellant j? valid. Kadaram has right to transfer his share. Therefore, the appellant acquires title over the suit land. Respondent No.l/defendant No.1 did not raise any objection to the sale-deed dat^cl 15-9-2004withinthreeyears ofjts registration. The name Qf Kadaram is mutated in revenue records. It means, resppndent No. 1 and other co-sharers have relinquished their rights overthesuitland.Hefurtherargyedth^tleamedtrialCourtwrongly held that thesuitis pot majntainable fo^ want of non-joinder of necessai'yparties.lftherewasnon-joinderofnecessarypartiesand on that groynd the suit was not maintainable, it was necessary for the trial Court to afford opportunity to the appellant for impleading those persons as party to the suit. The plaintiff in a suit, being dominus litis, may choose the person against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief. Learned counsel further argued that learned trial Court committed errorin law and fact by ignoring that •^ the registered sale-deed was executed by Kadaram Jangde and later on the respondent No.l/defendant No.1 Devprasad had consented for the same through his consent-deed and as such defendant,No.1 Devp|]asad is now estopped^f^ transaction. The learned trial Coyrt committed error in law in not accepting the consent-deed executed by defendant No.1 Devprasad to be a substantiye piece of evidence in just decision of the matter when the same was proved by primaryas well secondary evidence before the learnedCourt. Thelearned trial Court committed error in law holding that the plaintiff/appellant failed to prove that Kadaram had executed a valid sale-deed in his favour withoutconsidering the presumption in favourof the validity of the registered sale-deed, even otherwise execution of the sale-deed was not assailed or questioned. The leaFned trial Court committed error in law while holding that the opinipn pfthe expertcan never be accepted to be a substantive piece qf evidence, Learned counsel submitted that civil y matter dpes not require strict proof but decisions are made on • ;;! ...;.....-...; . . .^ ... .. .^ , .^ . ^..^ ..^ . ; ^ ,^ ^. v ^ ..•..- ............. preponderance of prpbabjlities, thus, settled principle of law has been badly ignpred by the learned trial Court. Therefore, the appeal may be allowed and a decree may be drawn in favour of appellantor the matter may be remanded to the learned trial Court ^m G q^ for appreciation of the matter in the light of legal position as enumerated above. Reliance was placed on Uttar Pradesh Co- operative Federation Ltd. vs. Sunder Bros., Delhi, AIR1967 SC 249, Jumma Masjid, Mercara vs. KodimaniandraDeviah and others, AIR 1962 SC 847, Laxmishankar Harishankar Bhatt vs. Yashram Vasta (dead) by LRs. vs. (1993) 3 SCC 49, Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Ljmited and others, (2010) 7 SCC 417, Kasturi vs. lyyamperymaland others, (2005)6 SCC 733, Ramji Dayawala and sons (Px) Ltd. v$. Invest Import, (1981) 1 SCC 80, Anil Kumar Singh vs. Shivnath Mishraalias Gadasa Guru, (1995) 3 SCC 147 and Sumtibai and others vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) through Mankanwar (Smt) W/9 Parasmal Chordia (Dead) and others, (2007) 10 SCC 82

7. Learned couriseT for responderit No.1 argued that appeltarit utterlyfailed tb prove that fhe suit land wasgifted by Smt. Jotkunwar to Smt: Yashoda Bai. The appellant did not prove the gift-deed dated 3-2-1989. The said gift-deed is an unregistered deed ariti, therefore; it is not admissible in evidence. For validity of a gift-deed of ari registration and delivery of possession under Sections "122 and 123 immovable property worth above Rs.100/-, of the Act, 1882are mandatory. ^ecause gift-deed dated 3-2-1989 is an unregjstered deed andthe napne of Smt. Yashoda Bai was not mutated in the revenue records, therefore, Smt. Yashoda Bai could not acquire any title oyer the suit land. He further argued that Smt. •^ JI:!- '-.^ k.P '••'isr——.:.—.-* ^ R Jotkunwar was owner of the suit land and she had two sons, Mohitram and Ramkhilawan. Respondent No.1 is son of Mohitram and Kadaram is son of Ramkhilawan. There are other legal heirs of Ramkhilawan. The suit land is an ancestral property. Kadaram alone did not have rightto alienate the suitland, therefore, appellant did not acquire any title over the suit land. The findings recorded bythe learned trial Court do not require anyinterference by this Courtand the appeal is liable to be dismissed.

8. Now, we shall examirie whetherthe gift ofthe suit land made bySmt.JotkunwarinfavourofSmt.YashodaBaiwasvalid?

9. Sections122and123oftheTransferofPropertyAct, 1882 run thus: "122, "Gift" ?defined.-- "Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee,and accepted by or \..^' on behalf of the donee. Acceptance Wh6h ' to be mad6.—Such acceptance must be made during the lifetime ofthe donor andwhile he isstillcapabledfgivi If the donee dies before acceptance, thegift is void. the purpose of 1;23. Trahsfer how effecfed.—For making a gift 6f immovable property, the transfer must be effected by a registered instrument signed by or onbehalf ofthe donor, ahd attested by at least two witnesses. Fbr tlie purpose 6f making a gift of movable the transfer may be effected either by a property, registered iristrumehf signed as aforesaid or by delivery. TI Such delivery may be made in the same way as goods sold may be delivered." \

10. Atal Shrivastava(PW-l) deposed that the suit land belonged to Manohar, son of Mangat Suryavanshi, resident ofVillage Mangla. Smt. Jotkunwar purchased the suit land from Manohar by registered sale-deed dated 21-3-1975. Smt. Jotkunwar had giftedthe suitland •^ to Smt. Yashoda Bai on 3-2-1989. By virtue of the said gift, Smt. Yashoda Bai became owner of the suit land. Smt. Yashoda Bai did ^ notget her name mutated in the revenue records. After her death, hersons Ganesh and Dinesh inherited the suit land. They executed agreement dated 8-6-2004 in favour of Kadaram.

11. Atal Shrivastava (PW-1) deposed in-cross-examination that it is true that after death of Smt. Yashoda Bai, the suit land was recorded in the name of Smt. Jotkunwar. Kadaram (PW-4) deposed that it is true that Smt. Jotkunwar had gifted the suit land to her h-. •^" / daughterSmt. Yashoda Bai by an unregistered gift-deed. It is also true that even after the gift, the suit land remained recorded in the name of Smt. Jotkuriwar.

12. The plaintiff did riot produce the gift-deed 3-2-1989. From perusal of the evidence of Kadaram (PW-4), it appears that the so called gift-deed was unregistered.

13. In Gomtibai (Smt) (Dead) through LRs. and bthers vs. Mattulal (Dead) throuflh LRs., (1996^ 11 SCC 681, the Hon'ble Supreme Court observed that it is seen that the gift of immovable property should be made only for transferring the right, title and mr' \M 10 interest by the donor to the donee by aregistered instrumentsigned by or on behalf of the donor and must be attested by at least two witnesses. The pre-existing right, title and interest of donor thereby stand divested in the donee by operation of Section 17 of the Registration Act only when the gift .deed is duly registered and thereafterthe donorwouldlose title tothe property. It must alsobe proved that the donee had accepted the propertygifted over under theinstrument.

14. It appears that said gift-deed dated 3-2-1989 was an unregistered deed. The delivery bf possession of the suit land was alsb not proved by the plaintiff. Even after the gift of the suit land was made in favour 6f Smt. Yashoda Bai, the name of Smt. Jotkunwar remained recorded in the revenue records over the said land. The plaintiff did not produce any document whichcould show that ttie narrie of Smt. Yashoda Bai and after her death, the names pf her sons, Ganesh and Dinesh were recorded in revenue records. -V,/:. Even the plaintiff did npt produce any evidence which could show that Qanesh and Djnesh were in possession of the suit land.

15. The learned trial Court rightly held that the plaintiff failed to prove that the suit land was gifted by Smt. Jotkunwar to Smt. Yashoda Bai. Kadaram (PW-4) deppsed in cross-examination ih paragraph 7 that according to his knowtedge, the suit land was ancestrarp^operty of his own, deferidaht No.1 and co-sharers. He 'ICithat it istruefhatthesuitlandwas furthercleposecl in paragrsipti ancestral property. Therefore, the findings arrived at by learned trial <^> Court relating to issues No.1,2, 7 and 8 are correct and basedon due appreciation of evidence and documents available on record.

16. Atal Shrivastava (PW-1) deposed that Smt. Yashoda Bai had two sons, Ganesh and Dinesh Patre (PW-3). After her death, they inherited the suit land. They executed consent-agreement dated 8- 6-2004 in favour of Kadaram. On the basis of thatagreement, the suit land was recorded in revenue records in the name of Kadaram and accordih^ly, Kadaram became absolute owner of the suit land: Dinesh Patre (PW-3) deposed that Kadaram was owner of the suit l?nd and thesuit land remajned in his ppssession. This witness has not stated anything in his examination-in-chief about execution of the agreement. WitnessKadaram has also not stated anythingabout execution of theso-called agreement. He has only stated that he was the owner pfthe suit landon the date of itssale.

17. Atal Shrivastava (PW-l)deposed in cross-examinationthathe ^' purGhased the suit ISrid vide registered sale-deed dated 15-9-2004 J after recording ofname of Kadaram (PW-4) intherevenue records. He atso stafed that he did not produce any document relating to possessioh of Gahesh and Dinesh over the suit land. He also stated in cross-examiriatibn fhat he did not produce any document relating fo recordihg of name of Kadaram in the revehue records on the ::.'1\-;... si.:.Lj.^','i. .;•....•.,;:...'- •.:,.. :..1 11 , ..' basis of agFeement of Ganesh and Dinesh. He admittedthat at the time when the agreement was executed by Ganesh and Dinesh, the suit land was not recorded intheir names in the revenue records. It appears thatthe plaintiffdiid not produce anydocumentary evidence -:-^^ » 12 c^ that the suit land was recorded in the names of Ganesh and Dinesh and theywere in possession ofthesuitland.

18. Kadaram Jangde (PW-4) deposed that Ganesh and Dinesh executed an agreement in his favour on 8-6-2004 for mutation of his name in the revenue records over thesuit land. Kadaram (PW-4) admitted that the suit land was ancestral property of his own and defendantNo.1. How the name of Kadaram was mutated in the revenuerecords, nosatisfactory evidence inthis regard was ledby '-,, / him.

19. In Balwant Sirigh and another etc. vs. Daulat Singh (Dead) by LRs. and others, AIR 1997 SC 2719, the Hon'ble Supreme Court observed that be that as it may, mutation entries do not convey 6r extinguish any title and those entries are relevant only for the purpose of collection of land revenue. In the instant case, mere mutation of name of Kadaram in the revenue records doesnot ^ render any title in his favouroverthe suit land. Kadaram did not -..F become sole owner of the suit land on the basis of said mutation and rightand titleofdefendant No.1 didnot extinguish.

20. Merely on the basis of executipn of an agreement by Vikram, Ganesh and Diriesh in favour of Kadaram, Kadaram did not become absolute owner ofthesuitland.

21. Now, we shall examine whethersale-deed dated 15-9-2004 executed by Kadaram in favour of the plaintiff is valid and the appellanVplaintiff perfected his title over thesuit land? 13

22. Learned counsel forthe appellant argued that under Sections 41 and43 ofthe Act, 1882, the appellant perfectedhis title overthe suit land and in support of his contention, he placed relianceon Jumma Masjid, Mercara (supra).

23. In Jumma Masjid, Mercara (supra), the Hon'ble Supreme Court observed that where a person transfers property representing ..^ that he has a present interest therein, whereas he has, jn fact, only a spes success/bn/s, the transferee is entitled to the benefit of S. 43, if he has taken the trahsfer on the faith of that representation and for consideration. Such a construction of S. 43has not the effect of nullifyirig S. 6(a). ^^ S. 43 relate to two different subjects, and thereis no necessary conflict between them. Section 6(a) deals with certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of those interests. Section 43 deals with representations as to title made by atransferor ^ who had no title at the time of transfer, and provides that the transfer ^1 fasten itself on the title which the transferor subsequently acquires. Section 6(a) enacts aruleof substantive law, while S. 43 enacts a ruleof estoppel which is oneof evidence. The two provisions pperate on different fields, and under differentconditions, and there is no ground for reading a conflict between them orfor cutting down the ambit of the one by reference to the other; both of them can be given full effecton their own terms, in their respective spheres. To hold that transfers by persons who have only a spes successionis at the date of transfer are not within the protection afforded by S. 43 wQuld^destroy its utility to a large extent. Section ^^- ^" (fr-Md) i-"ejepe>| •pBSBjdAea I'ON luepuejep pue LUBJ)|!A 'ujBjepex '8jo^9J84i p seiueu eqi ui spjooej enueAOj Q\\\ ui pspjooajseM pue| iins 'oiejeqi uoipefqo pesiej pesejdAea |.•ON luepuejep ^o jeqiojq 'LUBJ^A 'jepijsqei 9q» ejojeq pue| pue uuejepe>| 4ins eqi JQAO euueu sjq p uoiieinLU jo^ uoiieoiidde ue p uoissiiuqns iins eqi jp uoissessod PI|BA uis! 94 'jnoAej siii U! Sjq UQ 'pue) 9|es 941 J9yv "joajeqi uoissessod luiy j8Ap pepyeq pue ^QOZ-G-Q I. peiep p99p-9|es p9J9isi69J Aq pye| ^ins eyi UJILI p|os peLi Luejepex "•'"OAe^siy ui lyQLyeojBe 9L|i peinoexeAeqi ieL|ip9Sod9pj94ijni9|-l pue eoue^jeyu! p ABM Aq pue| iins eyi pejinboe qseuiQ pue Liseueo •jeMun^or -ILUS ^q PQseqojnd SBM pue| ^ins 811} ieqi pasodep Aiieo^pads (l.-Md) eAeiseAuqs |BIV 'sseo lue^su! eqi u| -^ "(e)9 "S JQpun iie^ ||IM je^sueji eqi pue 'uoiieoiidde ou 9Aeii ue^ p|no/v\ gi7 uoipes "Je^sueji e 6ui>|ei UOLIM 11 uo pepe 8AeL| oipies eq puueo eq ueqi 'seii eq siu9§9jd9J94 401^ QIII} eqi ssessod iou seop joje^sueji 9141 leq^ pe^ e se SMbu>| eejejsueji eqi 9J9L|M 'i! uo pepe 864 eeje^sueji eqi pue uoiieiuesejdej e 9>|BLU leueieiu si teqM le^i pue 'uoiieiuesejdej eqi BUDIBUU pip eq ieqi sj ui Aiiueoouui j6 A|iu9|npnejj pepe joje^sueji sqi jeqieqM iou sjeueLU 'peisiLu ueeq SBLI eeja^sueji }\ uoipes 8t|i p esodjnd 9L|i JQJ eqi pe^ ui jeqieqM ino puy 01 lejjeieLU A|UO 81 }\ •uoi^uesejdej eqi Bu^euu ui A|iu9|npnej^ w Qpij. euoq spe jojejsuejl eqi jeqieqM leueieLULU! si u •uoiieiuesejdej ve^} uo spe OL<M uosjed e IsuieBe se Aiejiuoo eqi 969||e 01 PJKQ^ eq iou iieiis uoiieiuQsajdej e 88)|eLuoqM uosjede ^eqi speue pye |9ddoise jo 9|nj e seipoquje £17 l7l A- i € ./" !1 '•' 15 deposed that according to his knowledge, the suit land is ancestral property.

25. From perusal of the above evidence, it appears that appellant/plaintiff knew that the suit land was belonging to Smt. Jotkunwar,respondent No.l/defendant No,1 Devprasad was grand -f son (son'sspn) ofSmt. Jotkunwarand Kadaram did not possesstitle over thesuit land, therefore, Section 43 ofthe Act, 1882 would have rio applicatibn and th6 appellariVplaintiff was not entitled for the bertefit of Sections 41 and 43ofthe Act, 1882.

26. Atal Shrivastava (PW-1) deposed that defendant No.1 Devprasad executed consent-letter dated 22-1-2008, which is denied by defendarit No.1 Devprasad. D^vprasad (DW-1) deposed that cpnsent-letter dated 22-1-2008 submitted by the plaintiff forged. He further deposed thafhe did not execute any consent- letter. Everi if defendant N6.1 Devprasad executed the consent- ^::' letter, it neither convey title nor create any interest in favour of the plaintiff over the suit land. Eyen such cohsent-letter (Ex.P-2) cannot be relied upon or made the basis for mutation in revenue records.

27. Therefore, the trial Court rightly held that Kadaram alone did nothave righttosell thesuitlandtotheappellanVplaintiffandonthe basis of sale-deed dated 15-9-2004, the appellant/plaintiff did not acquire anytitle over tftesuit land. • : • ' \,! , . .;.•'.

28.Now,WeshallexaminewhetheFtheappellant/plaintiffdidnot impleadthenecessaFypaFtytothesuit? ki,.-L 16

29. Devprasad (DW-1) deposed in examination-in-chief, paragraph 3, that Smt. Jotkunwar died leaving behind her two sons Mohitram and Ramkhjlawan. Mohitram died leaving behind him son Devprasad (DW-1) andwife Kainabai (DW-3). Ramkhilawan died leaving behind him sons Kadaram, Bhagbali,Vikramanddaughters Ashlata, Hemlata, Pushplata etc. Kadaram (PW-4) deposed in cross-examination, In paragraph 5, that Ramkhilawan had two sons Kadaram himself and Vikram and six daughters, namely, Shivkumari, Kanchanbai, Sulochana, Ashlata, . Pushplata and Hemlata. y <f

30. After perusal of the evidence of Kadaram(PW-4), Devprasad (DW-1) and Panchram (DW-2), itappears that Kadaram (PW-4) had brothersand sisters. Theywere legal heirs of Ramkhilawan also. In his written statement, defendant No.1 Devprasad specifically pleaded that Ramkhilawan died leaving behind him sons and ^.^ daughters being his legal heirs andthey are necessary parties to the .^' suit.

31. Order 1 Rule 10 ofthe Code of Civil Procedure, 1908 enable the Court to add any person as a party at any stage of the proceeding if the person whose presence before the Court necessary inorder to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of the multiplicity of proceeding is also one oftheobject of thesaid provision. A necessary party is one without whom no prder can be effectively made. In the instant case, the plaintiff filed -^ 17 the suit for declaration of title and permanent injunction. The brothers and sisters of Kadaram and mother of defendant No.1 Devprasad are necessary parties. Therefore, the trial Court rightly k held that the appellanVplaintiff did not implead necessary party to the suit.

32. We have considered all the aspects in the light of decisions cited above. We find no infirmity in the impugned judgment and decree passed by the trial Court and, therefore, the same are affirmed.

33. The appeal is devoid of any merit; it deserves tobe and is hereby dismissed. Parties shall bear their own costs.

34. A decree be drawn-up accordingly. Sd/- Satish K. Agnihotri Judge Sd/- R.S. Sharma Judge •i^^ ill:] /• 1