1. This revision petition under Section 115 of the Code of Civil Procedure, 1908, to be referred to as the Code, is directed against the order dated 7-4-1977 made on I. A. No. 2 in Original Suit No. 26 of 1977 on the file of the Court of the Principal Civil Judge, Hubli, granting permission to one Khandappa Devappa Dhumale to be added as defendant No. 3 in the suit.
2. Petitioners in the revision petition are defendants 1 and 2 in the original suit, a suit for partition instituted against them by respondent No. 1 herein as plaintiff, Respondent No.2 herein is the person who is allowed to be added as defendant 3 in the suit. Whether the Court below has exercised a jurisdiction not vested in it under Rule 10 of O. I. of the Code in ordering addition of the applicant in I. A. No. II as defendant 3 in a suit for partition having regard to the claim put forward by him that he was in actual enjoyment of the suit lands being in possession of them as a tenant entitled to the benefits conferred upon him under the 'Karnataka Land Reforms Act, 1961, to be referred to as the Act, is an important and interesting question of law which is raised for my decision in this revision petition.
3. The facts which have given rise to the said question are, in brief, the following:
Plaintiff instituted O. S. No. 26 of 1977 against defendants 1 and 2 seeking partition and separate possession of his one third share in the plaint schedule agricultural lands with a farm-house thereon, on the allegations that he and defendants 1 and 2 were members of a joint Hindu family and he, as a member of such family, was entitled to obtain a decree for partition and separate possession of his share in the plaint schedule property, which was ancestral joint family property. The claim made by the plaintiff in the suit for partition and separate possession of one-third share in the plaint schedule property is, according to the learned counsel for defendants 1 and 2, not denied by defendants 1 and 2. However, on the very day of the institution of the suit, an application under Rule 1 of Order XL of the Code, having been filed in the suit by the plaintiff, an order is said to have been obtained from the Court for appointment of a practising Advocate of the court as Receiver of the plaint schedule property. The Advocate who was so appointed by the Court as Receiver, when attempted to take possession of the plaint schedule property on the strength of the order of the Court appointing him as the Receiver of the property, the application. I. A. No II under Rule 10 of Order I of the Code, on the basis of which the order under revision is made by the Court below, has been filed seeking to obtain an order of the Court to add the applicant as defendant No. 3 in the suit so as to enable him to contest the suit. This application is supported by an affidavit sworn to by the applicant. The allegations in the affidavit which are material for the purposes of this case read thus:
I am cultivating the suit land as tenant for the past 25 years, I am in physical possession of the suit land. I am residing in the suit farm house along with members of my family. I have got agricultural establishment. I own no other land. I cultivate no other land except the suit land. I have cultivated the suit land during the current agricultural season. I have filed an application to the Land Tribunal, Hubli, to grant the occupancy right to me. The said application is pending hearing. On coming to know of this, the plaintiff and the defendants in collusion have filed the suit with a view to harass me and to oust me from the suit land. The receiver appointed by this Court has with force removed some of my household articles. I have no other house except the suit farm house to stay. The receiver has also taken to his custody all my agricultural implements and the crops. The act of the receiver is causing me untold hardships. If I am not added as one of the defendants in this suit I will be put to irreparable loss and hardship. The parties on record will not be put to any inconvenience.'
4. Plaintiff, opposing the grant of the application, I. A. No. II, has stated in his statement of objections that the applicant in I. A. No. II is not a tenant of the plaint schedule property as claimed by him but he is living in the farm-house of the plaint schedule property as a servant of the plaintiff's family. He has further stated that the application for impleading is filed by the applicant in collusion with defendants 1 and 2 (the revision petitioners). Defendants 1 and 2, who have also opposed the grant of the application by filing a statement of objections, have, curiously, gone to the extent of stating in their objection statement that it is the applicant, their servant, who has deliberately instigated the plaintiff to file the suit in order to obtain wrongful gain by spoiling the harmony in the family and pushing the whole family into endless litigation, besides stating that the applicant has no locus standi to file the application, being a person who has no right or interest in the suit property.
5. The Court, on the basis of the application, statements of objections and the documents filed by the parties and arguments addressed to it on behalf of the parties had made an order, the relevant part of which reads:
'6. The applicant has produced 4 documents under list dated 23-3-1977 and four more documents under the list dated 31-3-77. The document at Sl. No. 1 list dated 23-3-77 is an extract of the mutation entry No. 1345. This entry shows that the name of the applicant has been entered as a tenant of the suit lands for the year 1976-77 as per the orders of the Tahsildar in R. T. S. S. R. 150/ 76-77 dated 10-1-77 and R. T. S, dated 16-9-76. The document at Sl. No. 2 is the receipt issued by the Special Tahsildar, Land Reforms, Hubli on 27-12-76 for having received one application in Form No. 7 under Section 45 read with Section 48-A(1) of the Karnataka Land Reforms Act. The other two documents are receipt-cum-sale slips issued by the Hubli Agricultural Produce Market Committee, Hubli in the name of the applicant. The four documents produced under the 2nd list relate to the purchase of some agricultural implements and the payment of electric charges, in respect of the pump set. Mr. Joshi, learned Advocate for opponent No. 1 has submitted that the applicant is merely a farm servant and the documents produced by him are all got up after the dispute arose in the family. He has referred to the various documents produced by the opponents 2 and 3 and has submitted that they clearly show that the pump set and other agricultural establishment on the suit property belong to the family and the electric charges are also paid by the members of the family only. So, he submits that taking undue advantage of the family dispute the applicant wants to create further complications in the suit. At this stage, we have to see, as already noted above as to whether there is material on record in support of the contention of the applicant that he is the tenant. The revenue records especially the extract of the mutation entry and the receipt for having received the applicant's application for occupancy rights, prima facie lend support to his contention that he has been asserting to be the tenant of the suit lands. We are not now deciding the question of tenancy and this Court is not competent also to do it. Whenever any party requests that he may be added as a party, we have to see whether he has got any interest in the suit property. The documents produced by him support his contention that he has got some interest in the suit property. The matter will be decided by the competent authority and finding will be recorded as to whether he is a tenant as contended by him or merely a farm servant as asserted by the parties to the suit. So, looking to the documents produced by the applicant, I think it is necessary to add him as a party to the suit for partition. Hence, grant the application and direct that the applicant Khandappa Dhumale be added as defendant No. 3 to Original Suit No. 26/77.'
6. Plaintiff in the suit has not chosen to question the correctness of the said order. But defendants 1 and 2 in the suit, claiming that they are aggrieved by the said order, have preferred this revision petition challenging the correctness of the same. Though plaintiff is impleaded by defendants 1 and 2 in this revision petition as respondent 1, he has remained unrepresented.
7. I may state here that I would have dismissed the revision petition on the very ground that the original defendants cannot be considered to be persons aggrieved against an order of the Court by which a third party is ordered to be added as an additional defendant but for the fact that the suit concerned is a partition suit among the members of a joint family where the position of parties in the suit as plaintiffs or defendants does not make any difference in relation to the reliefs to be granted in the suit. However, what can be seen from the conduct of the original plaintiff and original defendants in the suit is the falsity of the claim of either of them that there was collusion between the other party and the applicant (respondent 2) in making the application which has led to the order under revision, and this is not a matter which can be altogether ignored by the Court while considering a revision petition filed under Section 115 of the code as it stands today.
8. Sri. T. S. Ramachandra, learned counsel for the petitioners, arguing in support of the revision petition. Seriously contended before me that even if it is assumed without conceding that the applicant in I. A. No. II is a tenant of the plaint schedule agricultural lands which are the subject-matter of the suit, the Court below has exercised a jurisdiction not vested in it under Rule 10 of Order I of the Code in ordering addition of the applicant as defendant 3 in the suit, as, according to him, the questions involved in the partition suit which are required to be decided by the Court could be decided effectually and completely even in the absence of the applicant in I. A. No. II in the suit. He proceeded to contend that the prayers sought by the plaintiff in the suit, such as partition of his share and separate possession thereof, even if granted, the rights of the applicant in I. A. No. II as a tenant would remain unaffected. When I questioned him as to how he can sustain such a contention when, in fact, even before a decree is made in the suit, the receiver appointed by the Court is attempting to disturb the possession of the applicant claiming to be a tenant of the agricultural lands on the basis of an interlocutory order obtained from the Court at the instance of the parties who are obviously colluding with each other, his answer was that the applicant should have recourse to a separate suit in the event of his dispossession of the lands by the Receiver as such a remedy was always open to him.
9. On the contrary, Sri T. R. Veereswara, learned counsel for respondent No. 2, submitted that on the facts and in the circumstances of the case, it cannot be contended that the Court below was not justified in ordering the addition of respondent No. 2 as additional defendant in the suit. However, he submitted that even if there is any error committed by the Court below in the exercise of its discretion in ordering the addition of respondent No. 2 as an additional defendant in the suit, there would be no justification for this Court, in exercise of its revisional powers under section 115 of the Code, to set aside a discretionary order made by the Court below.
10. The principal question of law, which, therefore, arises for my consideration and decision in this revision petition is as to whether the Court below has exercised a jurisdiction not vested in it under Rule 10 of Order I of the Code in ordering addition of the applicant in I. A. No. II as defendant 3 in a suit for partition having regard to the claim put forward by him that he was in actual enjoyment of the suit lands being in possession of them as tenant entitled to the benefits conferred upon him under the Act.
11. The determination of this question, in my view, since depends not merely upon the true construction to be placed on the scope and ambit of power exercisable by a court under Rule 10(2) of Order I of the Code, but also upon the legal effects which are brought about in the relationship of landlord and tenant in respect of tenanted agricultural lands by several provisions of the Act in force in the State of Karnataka, I purpose to consider them. However. I shall first take up for examination the point relating to the scope and ambit of Rule 10(2) of Order I of the Code, inasmuch as it should not detain me along in view of the authoritative pronouncement made by the Supreme Court in dealing with the said point.
12. The Rule so far as it is relevant for the present purpose reads as follows:
'The Court may at any stage of the proceedings, either upon or without the application of wither party, and on such terms as it may appear to the Court to be just, order XX that the name of any person ** ** whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.' English and Indian decisions bearing on the construction to be placed on the above rule have been thoroughly discussed by the Supreme Court in the case of Razia Begum v. Sahebzadi Anwar Begum : 1SCR1111 . Sinha, J., (as he then was) speaking for the majority summarises the effect of the various decisions considered by the Supreme Court in the following words:
'(8) It is no use multiplying references bearing on the construction of the relevant rule of the Code, relating to addition of parties. Each case has to be determined on its own facts. ** ** There cannot be the least doubt, that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject-matter of the litigation whether it raises questions relating to moveable or immoveable property.'
The learned Judge stated in the course of his judgment while dealing with the point as to when a person who seeks to be added as party to a suit can be considered to have direct interest in the subject matter of the suit, thus (at page 890).
'In the leading case of (1892) 1 Ch 489 Lindley, L. J., has held that a party who is not directly interested in the issues between the plaintiff and the defendant, but is only indirectly or commercially affected, cannot be added as a defendant, because the Court has no jurisdiction, under the relevant rule, to bring him on record even as a 'proper party'. That was a suit to restrain the alleged infringement of the plaintiff's patent by the defendant, Marsden. The Court held, reversing the order of the trial Judge, that the party sought to be added has no direct interest in the subject-matter of the litigation, and all that could have been said on behalf of the party intervening, was that the judgment against the defendant would affect his interest commercially. The Court distinguished the previous decision in Vavasseur v. Krupp, (1878) 9 Ch D 351 and Appollinaris Co. Ltd. v. Wilson, (1886) 31 Ch D 632, on the ground that in those cases, the litigation would have affected the property of the persons not before the Court. The leading case of 1892-1 Ch 487 is clearly an authority for the proposition that the Court has jurisdiction to add as a part defendant only a person who is directly interested in the subject-matter of the litigation and not a person who will be only indirectly or commercially affected.'
According to the construction placed by the Supreme Court on the rule of the Code referred to above, the Court, before exercising its judicial discretion in ordering the addition of a person as an additional defendant, must see if the following requirements of the rule are present in a given case:
(1) that a person who wants to be added as a additional defendant in the suit has a direct interest in the subject-matter of litigation, whether it raises questions relating to moveable or immoveable property, as distinguished from indirect or commercial interest;
(2) that the facts constituting the interest claimed in the subject-matter of the litigation by the person who seeks to be added as defendant will make the Court to take the view that in the absence of such person in the suit, it will not be in a position to effectually and completely adjudicate upon and settle all the issues involved in the suit.
13. The points therefore, which next require consideration are whether a person who claims to be a tenant in respect of agricultural lands which are the subject-matter of the suit for partition, can be considered to be a person who has direct interest in the agricultural lands which are the subject-matter of the suit for partition and whether the Court considers the presence of such person necessary in the suit with a view to enable it to effectually and completely adjudicate upon and settle all the issues involved in the suit. Since the consideration of these points has to necessarily, in turn, depend upon the legal effects brought about in the relationship of landlord and tenant in respect of agricultural lands by the provisions of the Act in force in the State of Karnataka, and examination of the provisions of the Act is called for.
14. An examination of the provisions of the Act in the said context has made me reach the conclusion that the following are some of the effects brought about by the Act in the relationship of landlord and tenant in relation to agricultural lands:
1. All agricultural lands in the possession of tenants as on 1-3-1974 stand transferred to and vest in the State Government. (Section 44(1)).
2. All rights, title and interest vesting in the landlords of tenanted lands shall cease and be vested in the State Government absolutely free from all encumbrances. (Section 44(2)(a))
3. The landlords of tenanted lands shall be entitled to receive the amount payable for extinguishment of their right only from the State Government by applying to the Tahsildar. (Section 44(2)(f) and Section 48-B).
4. Tenants of such lands shall be entitled to be registered as occupants thereof and the Tribunal under the Act shall order registration of occupancy in their names conferring on them the rights of ownership of lands. Secs. 45 and 48-A).
5. Civil Court is debarred from deciding questions relating to the nature of the land and registration of occupancy and unless called for the amount payable to owners. Section. 132).
6. In a Civil Court or other Court of authority, be it a suit, case or proceeding, when any question whether a land is or is not an agricultural land and whether a person claiming to be in possession is or is not a tenant, arises for consideration, the suit, case, or proceeding has to be stayed and such question has to be referred for decision to the Tribunal. (Section 133).
15. I shall now examine the contentions of the learned counsel for the petitioners in the light of the conclusions I have reached in regard to the scope of the power exercisable by a Court under Rule 10(2) of Order I of the code in the matter of addition of defendants and the legal effects brought about in the relationship of landlord and tenant in respect of tenants of agricultural lands under the Act.
16. The first contention strenuously urged on behalf of the petitioners is that a person who claims to be a tenant in respect of agricultural lands belonging to members of a joint Hindu family among whom a suit for partition of such lands is pending can be considered to be a person vitally interested in the subject-matter of suit and the questions involved in such a suit cannot be effectually and completely adjudicated upon and settled without reference to such a person. This contention probably could have commended itself for acceptance at a time when a tenant of an agricultural land was in the position of the present tenant of house-property, for, in the case of partition and separate possession of house-property granted in favour of a member of a joint family in a suit filed by him, all that is expected of such a tenant would be to attorn the tenancy held by him previously from the joint family in favour of the member of the family who will have got it for his share by the decree in the suit and pay the rent to the latter instead of paying rent to the former.
But such a contention, when advanced in relation to agricultural lands which are claimed to be tenanted, cannot be entertained, if regard is had to the legal effect that is brought about in the relationship of landlord and tenant in respect of agricultural lands under the Act. Under the provisions of the Karnataka Land Reforms Act, among others, landlord's rights of ownership in tenanted agricultural lands get extinguished, while the rights of ownership of such lands are conferred on the tenants. Further, even the claim for the amount of compensation for loss of ownership rights of landlords in such lands had to be claimed from the State Government and not from the tenants. Again, when a tenant claims in a suit in a Civil Court that a agricultural land is a land tenanted by him, the Civil court is bound to stop the proceeding of the suit and refer the question of tenancy to the Tribunal constituted under the Act, for decision.
17. In the said view of the matter the person who becomes vitally interested in the suit lands which are agricultural lands and which are claimed to be tenanted, is the applicant who has sought to come on record of the suit as additional defendant. Therefore, the contention advanced on behalf of the petitioners that respondent 2 (applicant in the application for impleading) is not interested in the subject-matter of the suit is wholly devoid of substance and is liable to be rejected.
18. The further contention advanced on behalf of the petitioners that the questions involved in the suit can be effectually and completely adjudicated upon and settled without the presence of respondent 2 in the suit, if accepted, would amount to saying that the Court can adjudicate effectually and completely the question arising between the parties to a suit in respect of agricultural lands, which are the subject-matter of the suit, even though such parties have absolutely no sort of interest whatsoever in such lands. Hence, the said contention deserves to be rejected and is accordingly rejected.
19. Again, the other contention of the learned counsel for the petitioners that the tenant of agricultural lands, when he is being dispossessed of such lands by a Receiver appointed in a suit for partition of such lands pending among the members of the family, should file a separate suit to get back the lands into his possession, does not stand a second's scrutiny, for to accede to such contention, I have to ignore the existence of the Act which is brought into force by the State Legislature with a view to confer on the tenants of agricultural lands the rights of ownership of such lands, without allowing the landlords to disturb, under any excuse, the possession of such lands held by tenants pending conferment of ownership rights on them by the Tribunal constituted under the Act. Hence, the said contention advanced on behalf of the petitioners is liable to be rejected as one devoid of merit and is accordingly rejected.
20. The learned counsel for the petitioners, since however, invited my attention to three decisions of some High Courts including a decision of this Court, and contended that his contentions derive support from them, I purpose to refer to them.
21. The decision of a learned single Judge of the Andhra Pradesh High Court in the case of B. Somaiah v. Amina Begum reported in : AIR1976AP182 , is the first of such decisions. The learned counsel pointed out to me a passage in the said judgment, which, according to him, will support his contention. The said passage reads thus (at p. 183)
'where a person applies to be made a party, what the Court ought to see is whether there is anything in the suit which cannot be determined owing to his absence or whether there will be prejudice by his not being added as a party. Order 1, Rule 10 cannot be read as requiring that all persons who are likely to have any sort of right, title or interest in respect of the subject-matter of a suit should be made parties to it. Questions involved in the suit refer only to questions between the parties to the suit. They refer only to questions as between the plaintiffs and the defendants and not to questions which may arise between a party to the suit and a third party. The procedure under Order I, Rule 10 should always be adopted where it is really necessary for a complete adjudication of the questions involved in the suit and to avoid multiplicity of proceedings, Order I, Rule 10 cannot be resorted to where there is no need for adding new parties for adjudication upon the question involved in the suit.' It has to be stated that the view expressed by the learned single Judge of the Andhra Pradesh High Court was in relation to a claim made by a party to be impleaded as a party-defendant in the suit where the plaintiffs who had agreed to sell a particular property in his favour by means of an agreement to sell, had filed the suit for recovery of possession of the property from the Government of Andhra Pradesh and Praga Tools Corporation, a public limited company. Before expressing the view referred to above, the learned single Judge had virtually accepted the contention advanced on behalf of the contesting parties that there was no subsisting interest which was created in respect of the subject-matter of the suit in favour of the applicant who sought to come on record as a party-defendant. Hence, on the facts and in the circumstances of that case, it could not be said that the Court was unjustified in reaching the conclusion that the person who sought to come on record of the suit as an additional defendant cannot have recourse to Order I, Rule 10 of the Code.
However, the considerations which according to the learned Judge should weigh with a Court while considering an application made to it under Order I, Rule 10 of the Code do not in any way come in conflict with the requirements specified by the Supreme Court in the decision referred to earlier by me. The decision, as is obvious, is not rendered in a case where the person who sought to come on record by having recourse to Rule 10 of Order I of the Code is a tenant of agricultural lands-the subject-matter of a partition suit, leaving alone the question of such tenant's rights being augmented under a legislative enactment similar to the Act which has a bearing on the matter. Hence, this decision does in no way support the contentions of the petitioner's counsel.
22. The other decision to which my attention is drawn by the learned counsel for the petitioners is of the learned Chief Justice of the Punjab and Haryana High Court in the case of Kaka Singh v. Rohi Singh, reported in AIR 1978 Punj & Har 30. It is again a case where a party, who claimed a right pursuant to an agreement to sell which was executed in his favour, sought to come on record as a supplemental defendant. In the application made by him, in support of his claim that he should be impleaded as a party-defendant, it was stated that if one of the defendants in the partition suit got the benefit of the decree made in the suit for partition, by means of declaration of his right to a share and possession thereof, he being a person who had agreed to purchase the interest of such party in the land, would be prejudiced if not impleaded. The learned single Judge, on a consideration of the entire matter and having regard to the facts of the said case, came to the conclusion that it cannot be said that such an applicant would in any way be prejudiced by the disposal of the suit in his absence. I am of the opinion that it cannot be said that the Court was not justified in rejecting the claim of the applicant in the case to get impleaded as a party-defendant in the circumstances of the case. Thus, this decision also does in no way support the contentions of the learned counsel for the petitioners.
23. Lastly, the learned counsel for the petitioners invited my attention to a decision of this Court in the case of Angeline Monterio Bai v. Mrs. Roslie G. Castelino, reported in (1967) 2 Mys LJ 365. It is a case where the plaintiff in the suit filed an application for impleading the owners of certain property other than the suit properties with a view to show to the Court that those persons, who were to be impleaded as defendants, had acquired a right of passage on the subject-matter of the suit, which was a land. This Court, on a consideration of the matter found that in the facts and circumstances of that case, the application for impleading was rightly rejected by the Court below. In my view, this decision also does in no way support the contentions of the learned counsel for the petitioners.
24. For the foregoing reasons, I conclude that the Court below has rightly exercised the jurisdiction vested in it under Rule 10(2) of Order I of the Code is ordering addition of the applicant I. A. No. II as defendant No. 3 in a suit for partition having regard to the claim put forward by him that he was in actual enjoyment of the suit lands, being in possession of them as tenant entitled to the benefits conferred upon him under the Act. Hence, the order under revision does not call for any interference.
25. As, on a consideration of all the facts and circumstances of the case and the decisions relied upon by the learned counsel for the petitioners, I have reached the conclusion that the Court below has acted well within its jurisdiction in allowing the application and permitting respondent 2 for being impleaded as defendant No. 3 in the suit, there is no need for me to deal with the question raised on behalf of respondent 2 that even if the Court below has wrongly exercised its jurisdiction, this Court will not interfere with the order in question in the exercise of its powers under Section 115 of the Code. However, I must state that the made-believe allegations of collusion contained in the statements of objections to the application of respondent 2 filed by the petitioners (original defendants 1 and 2) and respondent 1 (plaintiff), the manner in which the order of appointment of Receiver is obtained from the Court, the submission made on behalf of defendants 1 and 2 that they have no objection for the decree for partition being made, and the fact that it is only defendants 1 and 2 in the suit who have come up in revision, have made me reach the conclusion that interference with the order under revision cannot be envisaged without doing violence to proviso to Section 115 of the Code.
26. In the result, this revision petition fails and is accordingly dismissed. However, in the circumstances of the case, each party shall bear his own costs.
27. Petition dismissed.