K.K. Verma, J.
1. This is an unsuccessful intervener's revision under Section 115 C.P.C. from an order passed by the Civil Judge (Class II), Dabra on 15-12-1983 rejecting his application for being impleaded as a defendant in non-petitioner No. 1's suit(C. S.No. 107-A/82) for a permanent injunction against non-petitioners 2 to 8 from interfering with his possession of Kh. Nos. 397, 398 and 399, situate at village Khadicha.
2. A copy of the plaint made available to me during arguments shows that the suit was filed on 5-9-83 on the following averments. The plaintiff who stands recorded in the annual papers as a bhumiswami of the suit lands has been all along in possession thereof. He raised till and war crops in the suit lands in 1982-83. After he had prepared the suit lands for sowing grass therein in 1983, on 1-9-83 the defendants told the plaintiffs servants to stop working in the suit lands. The plaintiff went to the suit lands, the defendant then went away after telling him that they would dispossess him at any cost.
3. The defendants in their written reply dated 4-10-83 in answer to the plaintiffs application dated 5-9-83 for temporary injunction controverted the aforementioned averments. They stated that the suit lands are the peersthani maafi lands of the estate of Dargah Baba Kappor. They claimed that the mujabir (pujari) of Dargah Baba Kapoor gave a written patta of the suit lands to the defendant No. 1 (N.P.2) along with vacant possession of the same on 6-6-83 and since then the defendant No. 1 has been in possession of the suit lands.
4. Intervener Mukhtiar Ahmed claiming to be the mujabir who had given the suit lands to the defendant No. 1 on patta applied to the Court on 15-11-83 for being added as a defendant. The plaintiff opposed the prayer.
5. The learned Civil Judge heard the parties and rejected Mukhtiar Ahmed's application.
6. I have heard the learned counsel of the petitioner and the non-petitioner No. 1 -- none having appeared for the non-petitioners 2 to 8 in the revision proceeding.
7. Sub-rule (2) of Rule 10 of Order 1 of the Civil P.C. runs as follows : --
'(2) Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether the plaintiff or defendant, be struck out, and that the name of any person 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 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'
8. The lower Court had on its hands the problem of considering and deciding under Order 1, Rule 10(2) an intervened application for being added as a defendant.
9. In the above background I will analyse the lower Court's order with a view to isolating the points arising for determination in this revision proceeding, and then to consider and dispose of the same.
10. The learned Judge found that the Panchaala-khasra's entries for Swamies for Samwat 2035 to 2039 recorded the DargahBaba Kapoor, Gwalior as the Bhumiswami, the Collector, Gwalior as the Prabandhak and one Naseer Ali (alleged to be the deceased paternal grandfather of intervener Mukhtiyar Mohammad) as the mujabir of the Dargah.
11. The learned Judge stated --inadvertence to the aforementioned Khasra entries and absence of documentary evidence-- that it is not established that intervener Mukhtiyar Mohammad, whose possession over the suit lands was not recorded in the aforementioned khasra, had been appointed as a Mujabir, or, had, as an heir of aforementioned Naseer Ali, any title to the office of the mujabirship of the Dargah.
12. The learned Civil Judge then observed-- an observation not warranted by the record-- that the intervener did not aver that he was in possession of the suit lands. The intervener's assertion that he had granted a patta of the lands to the defendant 1 (N.P.2) was then placed on record.
13. The learned Civil Judge then remarked that no plaintiff can be compelled to implead any person as a party to the suit unless he were a necessary party to the suit.
14. The learned Judge then stated that the relief of permanent injunction can be given against specified persons and since the plaintiff had specified only the defendants, he could not be legally compelled to claim the relief of a permanent injunction against the intervener.
15. The learned Judge summed up by saying that neither the intervener has a direct interest in the suit lands, nor he is a necessary party to the suit then the Judge rejected the intervener's application.
16. In Panna v. Jeewanlal 1976 Jab LJ84 : (AIR 1976 Madh Pra 148), (FB) the Court rejected two interveners' application to be added as co-defendants in a purchaser's suit for specific performance of a contract for sale of immoveable property, entered into between the plaintiff, and the defendant. It was stressed that the interveners had set out a title adversely to the defendant, and were not even proper party let alone necessary parties to the suit.
17. The plaint does not even mention intervener Mukhtiyar Mohammad. Thus, Mukhtiyar Mohammad is not a necessary party to the suit. The learned Civil Judge's finding to that effect is correct.
18. In Panna v. Jeewanlal, 1976 Jab LJ 84 : (AIR 1976 Madh Pra 148) (FB), it was held that the expression (in Order 1, Rule 10(2)) any person whose presence before the Court was necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions in the suit describes a party known in legal parlance as a proper party to the suit. As already pointed above (at para 16), in the ruling the intervener's application was considered from the point of view whether they were proper parties to the suit and was rejected after it was held that they were not proper parties to the suit.
19. The learned Civil Judge's order D/-. 15-12-1983 shows that he did not even mention the point whether intervener Mukhtiar Mohd. was a proper party to the suit. This was in effect an omission to consider a substantive question of law that properly arose for consideration by virtue of Order 1, Rule 10(2).
20. Again, the learned Civil Judge took it upon himself to discuss and hold-on facts and in law that the intervener has absolutely no case on merits in answer to the case disclosed in the plaint. This adjudicatory exercise by the learned Judge was not justified because the intervener did not seek a final adjudication on the merits of his claim -- indeed he could not have done so in view of the limited scope of examination of the question (under Order 1, Rule 10(2)) whether he was a proper party to the suit. My reason is this, that a Court gets jurisdiction to try and adjudicate upon the defence of a person finally only after that person is, or has been impleaded as, a defendant, and that too after a proper trial, held in accordance with the relevant provision of law. The learned Civil Judge therefore assumed jurisdiction, when he had none, to hold that the intervener had no case on merits and the Judge had allowed himself to be influenced by his aforementioned finding into rejecting the intervener's prayer.
21. In Sampatbai v. Madhu Singh, AIR 1960 Madh Pra 84 Dixit J. (as then he was) dealing in a revision with the case of an unsuccessful intervener observed as follows : --
'Again as pointed out in Dollifus Mieget Compagnie S.A., v. Bank of England, (1950) 2 All ER 605 at p. 611, in determining whether or not an applicant has a proprietary right in the subject matter of an action sufficient toentitle him to be joined as a defendant, the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result on the subject matter of the action if those rights could be established.'
Thus, the learned Civil Judge had no jurisdiction to analyse the constituents of the intervener's right.
22. In Amon v. Rajhal Tuck & Sons Ltd. (1956) 1 All ER 273, it was pointed out how an intervener must be legally interested in the suit.
'It is not enough that the intervener should be commercially or indirectly interested in the answer to the question; he must be directly or legally interested in the answer A Person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally -- that is by curtailing his legal rights. That will not be the case unless an order may be made in the action which will operate on something in which he is legally interested.'
In Sampatbai's case the aforementioned citation was relied upon.
23. Now, the intervener's statement of his professed defence to the plaintiffs case against the defendants is the same as the defence of the defendants as reflected in their written reply D/-4-10-1983. The following observations in Amon's case (at page 289, 290) afford an answer in the intervener's favour.
'Whenever a plaintiff seeks to restrain a defendant from dealing with his property and an intervener claims that the property is his, the plaintiff can say : 'If I am wrong I shall not get an injunction and the intervener's rights will not be affected; if I am right the intervener has no rights to be affected anyway'. The point is that the intervener is entitled to be heard on the issue whether the plaintiff is right or wrong so that he may be bound by the order made.'
The same view point is reflected in following observations of Lindlay LJ in (1892) 1 Ch 487 at p. 490 :
'I can understand the application of the rule where the property of a third party is affected. He may well say, 'I am not to be deprived of my property in my absence.'
24. In the result, the learned Civil Judge's order is clearly interferable under Section 115 of Civil P.C., as the intervener had, in the particular circumstances of the case, fulfilled the qualifications of a proper party to the suit and was therefore entitled to intervene in the suit.
25. I, therefore, set aside the lower Court's Order D/- 16-12-1983. I order that intervener Mukhtiar Mohd. be added as a co-defendant in the suit. The intervener shall pay Rs. 50/- as costs to the plaintiff, as one of the terms on which he is permitted to intervene in the suit. In the particular circumstances of the case there shall be no order as to costs of this revision proceeding. Counsel's fee Rs. 50/-.
26. The parties shall appear before the lower Court on 17-8-1984.