( 348 ).
fJ9J0 Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice van Langenberg.
JAYAMAHA et at. v. 8INGAPPU et al.
D. G.t Ghilaw, 3,669.
Joinder of pla'inii}]#,causesof action,anddcfend/nits—CivilProcedure-
Code, ss. 17 and 18.
Two plaintiffs,whoclaimed tohe each entitled totwo distinct
lots, A and B.jointly brought anaction for declarationoftitle and
ejectment and damages against several defendants, of whom theninth and tenthwerealleged ^ to be in possession of lot*B,and the
others, each of distinct lots of A. The defendants objected—
(1) That there wasa misjoinderof plaintiffs,as they werenot
owners in common of these lots.
'(li) That therewas a misjoinder ofdefendants, inthat the
defendants were not jointly in possession of all the lots.
(3) That therewasa misjoinderof causes of action,aspossession
was taken of the lots at vrrious times.
Held, that the first objection was sound, and that the second andthird were. not.
The Supreme Courtremitted thecase to theDistrict Court,for'
it to deal with any application made to it to strike out one of theplaintiffs.
( 349 )
fJ^HE facts are set out iu the judgments.
SeneviraUie (with him Chitty), for the defendants, appellants.Bail'd, Acting S.-G.y for the respondents.
Cur. adv. vult.
June 2, 1910. Hutchinson C.J.—
The plaintiffs set out in their plaint that the Crown, being entitledto the land called Paluwelagalamukalana, shown in plan No. 60,856,dated February 29, 1864, and in plan No. 1,117, dated October 2,1903, both signed by the Surveyor-General, granted it on September23, 1864, to Bastian Perera, whose successors in title transferredthe northern portion of it on October 20, 1896. to the first plaintiff;that in 1901 the first plaintiff sold and conveyed about 6 acres ofthe said north portion to the ninth defendant, from whom it passedunder a Fiscal's transfer to the second plaintiff. I will refer to theportion which they say is still vested in the first- plaintiff as A, andto the portion which they say is vested in the second plaintiff (6 acres3 roods and 12 perches) as B. They allege that the seventeendefendants are in unlawful possession of different parcels of A andB, all of them pleading title to the whole of A and B~on an allegedsannas. And they claim a declaration of their title, and recoveryof possession, and damages. They attach to the plaint a sketchshowing that different defendants have been from different dates,and still are, in possession of separate pieces of A; thus, the firstdefendant has been in possession of about § an acre since 1901, thesecond and other defendants in possession of another £ an acre since1901, the fourth defendant in possession of another of an acresince 1904, and so on; and that B has been in possession. of thefifth, ninth, and tenth defendants since 1906.
The defendants, except the fourth and ninth (who filed no answer),joined in an answer, in which they first said that, as a matter oflaw, the action is bad for misjoinder both of parties and of causesof action. They also denied the plaintiffs' title, and said that, byvirtue of a royal sannas granted to his ancestors, one ThelenisGamarala was the owner and in possession of the entirety of theland which the plaintiffs said was comprised in the Crown grant;that the heirs of Thelenis Gamarala (of whom several of the defend-ants are some) have acquired a prescriptive title to the portions ofwhich the plaint says they are in unlawful possession; and. that thefifth defendant, to whom Gamarala in 1886 granted B to be planted,took possession under that grant, and has since 1886 been in theundisturbed and uninterrupted possession of B by a title adverseto and independent of the plaintiffs.
Several issues were suggested, but by consent of the parties(except the fourth and ninth defendants, who did not appear) theCouit tried first the issues as to misjoinder, and as to whether the
( 360 )
June 8, 1910
• Joyamaha v.Singappu
sannas set up by the defendants was genuine. The Court held thatthere was no misjoinder, and that the 6annas was a forgery. Anappeal by the defendants was dismissed as being out of time, butthis Court afterwards gave special leave to appeal, notwithstandingthe lapse of time, and this is the appeal. The only question which'has been argued before us is whether there was not a misjoindereither of parties or of causes of action or of both.
The first plaintiff’s cause of action is for a trespass on portions ofhis land A, and he has nothing to do with B. The seoond plaintiff’sis for a trespass on his land B, and he has nothing to do with A.
It is true that all the defendants who filed answer claim ultimatelyfrom – the sannas; but the claims of the plaintiffs are for distinctcauses of action, and ought not to have been joined. See section 17of the Civil Procedure Code. . Their counsel says that he is willingthat the second plaintiff and his claim should be struck out. Butthere was no application by either party to strike him out; andsection 18 does not empower the District Court to do so without anapplication; and I think that we have no power to do it now.
We have heard arguments on the question whether, supposingthe second plaintiff and his claim to be struck out, there is not amisjoinder of the claims of the first plaintiff against those defendantswhom he alleges to be in possession of separate portions of A. Thisr'fects all the defendants, except the ninth and tenth (who are onlyalleged to be in possession of B). The first plaintiff claims that heis the owner of the whole of A, and that certain of the defendantsare in wrongful possession of portions of it of the extent of 11J acres;these .defendants say that the whole of A belonged to ThelenisGamarala, and that his heirs, of whom they say the first, third,sixth, seventh, and sixteenth are some, have acquired a prescriptivetitle to all those 11£ acres; the other defendants, other than thosefive who are said to be the heirs of Thelenis, do not, so far as l eansee, set up any claim of right for themselves. In my opinion thereare not separate causes of action by the first plaintiff against thedefendants whom he alleges to be trespassers on A. He claims thewhole of A, one piece of land, which he says belongs to him underone title; and he alleges that the defendants are in wrongfulpossession of distinct portions of it. Several cases more or lesssimilar are reported in the Indian Laic Reports, and perhaps theyare not all reconcilable. It is said, on the one hand, that wheredefendants are in possession of distinct portions of the land andclaim it under distinct titles, and there is no collusion amongstthem, the plaintiff’s cause of action against each of them is distinct;and so it was held in Ram Narain Dat v. Annoda P. Joshi.i On theother hand, it is said that, the plaintiff's cause of action against allthe defendants is one, viz., to recover his land; that the defendantsmay set up what defences they please, but that the plaintiff is
1 (1887) 14 Cal. 6815'
( 351 )
entitled to recover possession of his land as a whole, and not in June g, 1910fragments. This last was .the view taken in Iahan Chunder Mazra Hutchdjbonv. Mondol1 and in Nundo E. Naaker v. BannuUi Gazan *CJ.
■ I would send the case back to the District Court with a declaration ^tTJfTtTITrftTthat there is a misjoinder of plaintiffs, and with directions that, if Singappuan application is made to the Judge to strike out one of the plaintiffs,he shall deal with it on such terms as to costs, amendment of plead-ings if necessary, and otherwise, as he thinks fit, and if he accedesto it, he shall proceed with the trial of the other issues; and that ifno such application is made, or if it is made and he does not grantit, he should dimnisa the action. The appellants should have theircosts of this appeal. The costs of the other appeal were ordered toremain, and must remain as costs in the cause.
Van Langsnbbbg A.J.—
In this case in the plaint it was averred that the first plaintiff'wasentitled to the land marked lot A in the plan, and the second plaintiffto the lot B. The cause of action as set out in the 15th paragraph ofthe plaint is as follows:“ The defendants, who have no manner of
right to the said portion (>.£., lots A and B), are in .the forcible midunlawful possession of different parcels of the said portion, asshown in the annexed sketch marked X, all of them pleading titleto the whole of the said portion on an ‘alleged sannas, to theplaintiffs' damage of the sum of Bs. 400.” In the sketch referred toin that paragraph the plaintiffs show the various blocks possessedby the defendants, and state the dates when the defendantsentered, thus:—
No. 1 is 6 acres 3 roods and 12 perches in extent, and is in thepossession of the fifth, ninth, and tenth defendants since February23, 1906.
No. 2 is about 2 acres in extent, and is in the possession of thefifth, eighth, and seventh defendants since 1902.
No. 3 is about £ an acre in extent, and is in the possession of thefirst defendant since 1901.
No. 4 is about $ an acre in extent, and is in the possession ofthe second, eleventh, twelfth, fifteenth, and sixteenth defendantssince 1901.
No. 5 is about $ an acre in extent, and is in the possession ofthe sixth and seventh defendants since 1900.
No. 6 is about J of an acre in extent, and is in the possessionof the.third defendant since 1901.
No. 7 is about £ of an acre in extent, and is in the possessionof the fourth defendant since 1904.
No. 8 is about J of an acre in extent, and is in the possessionof the fourteenth defendant since 1393.
1 (1897) 24 CaL 831
* (2902) 29 tai. 871.
( 352 )
June 2, 1910
No. 9 is about | of an acre in extent, and is in the possessionof the thirteenth defendant since July, 1906.
The plaintiffs prayed that they he declared entitled to the parcelsof land shown in the sketch, and that the defendants be ejected.Objection was taken by the defendants to the plaint on these grounds:first, that there was a misjoinder of plaintiffs, as they were notowners in common of these lots; second, that there was a misjoinderof defendants, ib that the defendants were not jointly in possession ofall the lots; third, that there was a misjoinder of causes of action,as possession was taken of the lots at various times.
The first issue tried ran as follows:“ Is this action bad for the
misjoinder of parties and causes of action?”
The learned District Judge held in favour of the plaintiffs, andthe defendants have appealed.
1 think the first objection a good one, and that the plaintiffscannot sue jointly in this action.
Mr.. Bawa intimated that in the event of our so holding, he wouldmove to strike out the name of the second plaintiff, and I wouldgive him an opportunity of taking steps to so amend his plaint.
I am not prepared to uphold the- second and third objections.The first plaintiff’s grievance is that the defendants are preventinghim from possessing several portions of this land, to which theyclaim title on a sannas; and this constitutes, it seems to me, onecause of action, and the fact that as among themselves the lots areseparately possessed does hot, I think, make any difference.
I agree to the order proposed by the Chief Justice.
Case sent back.
JAYAMAHA et al v. SINGAPPU et al