M.L. Jain, J.
(1) In order to understand the controversy let me give the pedigree of the parties :
Bengali Mal wife Vidyawati Harish Chand Tara Chand Gopi Chand Wife Wife Wife Gunwati Gian Wati Kamla Rani I I I Sons Sons Sons Satish Servesh Rakesh & Suresh Suhas Yogesh Sumesh Sukhesh Subhash
(2) Lala Bengali Mal had vast properties. He disrupted his joint Hindu family in 1935 and the same year converted his firm Lachman Das Ram Chand into a company and registered it under the Companies Act. Coparceners became shareholders. Bengali Mal died on 24-7-37. The company was thereafter dissolved and the assets were partitioned among the shareholders under an instrument of partition executed on 28-11-1941. In accordance with this deed, life estate was conferred on Vidyawati Widow of Bengali Mal in certain properties and it was provided that on her death l/3rd on Gian Wati and her sons and l/3rd on Kamla Rani and her sons. It is significant that sons of Bengali Mal have been deprived of their share in the property of Vidyawati and the same had been settled on their wives and sons. After the coming into force of the Hindu Succession Act) 1956 Mst. Vidyawati became full owner of the property and in virtue of the newly acquired right, she made a will on 18th December, 1959 and got it registered According to this will, the property was devised into certain shares in favor of the families of Harish Chand and Tara Chand. But it is alleged that she superseded this will by another one on 28-3-1960 which she deposited with the Registrar, she died on 2-1-1966. The will Was opened on 7-2-1966 and was subsequently registered on 16-2-1966. According to this will, she bequeathed her property exclusively to Gianwati and her sons. Gianwati was appointed executor of the will.
(3) Kamla Rani filed a suit against the other claimants in the year 1967 for partition of the family properties in which one of the issues framed was whether the plaintiffs are in joint possession of the properties in the suit? This court by order dated 31-7-1972 held that all the parties to the suit are all co-owners and possession of one will ensure to the benefit of the others. One of the properties included is B-39 Connaught Place, New Delhi. The defendants M/s. Standard Service Station were the tenants thereof.
(4) On 19-12-75 sons of Tara Chand filed a suit against M/s. Standard Service Station for an injunction restraining them from sub-letting, assigning or parting with possession of the aforesaid premises. The plaintiff contended that after the death of Mst, Vidyawati they became the owner landlords of the property and since her death the defendants are paying rents to them. One 19-12-75 the plaintiffs prayed for grant of an ad interim injunction which was granted on 20-12-75 and a local Commissioner was also appointed. The ground floor was in possession of the defendants while the first floor was occupied by some Hotel in Paharganj whose chowkidar was present there.
(5) In their written statement filed on 31-5-1976 the defendants stated that the plaintiffs are neither owners nor landlords. The lease deed in favor of Vidyawati was executed on 18-4-1951 and was registered on 8-2-1952 They were paying rent to Suresh Gupa till the year 1965. In 1966 Suresh Gupta told the plaintiffs that the rent would be collected by Sarvesh Chander. Suresh Gupta again informed in 1974 that the rent would henceforth be collected by Satish Gupta. thereforee, the defendants started paying rent to Satish Gupta w.e.f. 1-4-1974. They have handed over possession of the first floor to M/s. Satish Gupta on 29-10-75 and the possession of the ground floor was given on 2-12-1975 to the owners of the property. They had even disposed of their machinery and equipment on 2-12-75. Under the lease deed the defendants were given the right to sub-let and thereforee, no suit could be filed against them.
(6) The plaintiffs moved-an application on 2-11-76 under Order 39 Rule 2 Sub-rule (3) against them for action for breach of the said injunction. The respondents filed their reply on 8-12-1976 in which they mentioned that they had given possession in October and December, 1975.
(7) On 22-8-78 Satish Chander Gupta s/o Harish Chander Gupta made an application under Order I Rule 10 Civil Procedure Code that he should be made a party to the suit. He said that he is a co-owner and the possession has been handed over to him. by the defendants before the institution of the suit. Since the question of the will is in issue and the decision of the suit will affect the rights of the applicant he 'may be allowed to be imp leaded as one of the defendants as well as other legal heirs who were also a necessary and proper party may also be made a party and notice of this application may also be given to them in order to arrive at the correct conclusion in the matter in dispute as in the absence of those persons it will not be possible to give correct justice to the parties'. The learned Sub Judge by his order dated 15-9-1983 dismissed the application. Hence, the present revision petition. The defendants are supporting this petition.
(8) The learned Sub Judge was of the view that the present suit is for injunction and not for title. The plaintiffs merely seek to enforce an obligation placed upon the tenants though there was an issue whether the plaintiffs were owner-landlords yet the question of title was not at all relevant to the present controversy, and .the issue may even require to be racast. If the applicant is imp leaded it would unnecessarily widen the scope of enquiry and irrelevant questions would be brought in. The questions in suit between the parties do not include collateral question involving third party. The question involved in the present suit is limited to whether a relationship of landlord and tenant exists between the plaintiffs on the one hand and the defendants on the other. It is not at all necessary to implead the applicant in order to decide that limited question.
(9) I have heard the parties and seen the record. According to Order I Rule 10(2) Civil Procedure Code the court may at any stage of the proceedings, order that the name of any (person) who ought to have been joined 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. The learned counsel for the petitioner contended that petitioner was a necessary party to the suit and should have been allowed, to be added. The counsel relied upon Rajabibi & Others v. S. Ameerali and another Air 1974 Kar 115, wherein the High Court of Karnataka held that in a suit for ejecting a tress-passer by one co-sharer repudiating the claim of other co-sharer and claiming exclusive title in himself, the (other) co-sharers are not only proper parties but are necessary parties.
(10) The learned counsel for the respondent on the (other) hand maintained that the case of the (petitioner) is not covered by Order I Rule 10 (2) CPC. He cited Pravat Chandra Girl v. Amulya Chandra Bahaduri & Others 1927 Cal 340. It was held in that case that a third party ought not to be made a party to a suit for rent so as to convert a simple suit for arrears of rent into one for the determination of the title to the property in respect of which the rent is claimed. In Balwant Raj v. Lt. Gian Singh & others Air 1978 J & K 84, it was held that a suit for ejectment could not be converted into a suit for title and thereforee, the third party would have no locus standi to ask the court that he be imp leaded as a party because he was the owner of the property. His remedy lies by was of separate suit. In Raj K. Mehra v. Mrs. Anjali Bhaduri Air 1981 Del 237 in a suit for specific performance of contract, strangers seeking impleadment were not allowed to do so because impleading them will convert the suit for specific performance into a suit for title. In Khusi Ram v. Lal Man & others, : AIR1983Delhi78 it was held that a judgment in an injunction suit is not a judgment in remand thereforee, a stranger suit and hence could not be imp leaded.
(11) After considering these cases, it appears to me that it will depend upon the facts of each case whether a person is a proper party or a necessary party so that he may be allowed to be added as a party. 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 and not an indirect interest in the subject matter of the litigation. Razia Begum v V. Sahebzadi Anwar Begum and Others, : 1SCR1111 .
(12) The learned counsel for the respondent further submitted that the petitioner has no right to be imp leaded because it will widen the scope of the enquiry and it is not a suit for establishing the title. The defendants are paying rent to the plaintiff and thereforee, obviously they are landlords and their dispute is with their tenant. If the suit is dismissed, then the addition of the petitioner will be without any purpose. If the suit is decreed then it will be binding only on the defendants. The petitioner is thereforee, nothing but an intruder not necessary for the decision of this case. The plaintiff is the dominus litis. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does .not claim any relief. Plaintiffs averred in the plaint that they are owners-landlords and defendants are their tenants. But in their replication filed on 4-8-1976 they explained that Vidyawati was the owner. She bequeathed the property to the plaintiffs. The defendants after the death of Smt. Vidyawati attorney to the plaintiffs and started paying rent by cheques to the plaintiffs. The receipts of rents were also duly issued to the defendants on behalf of the plaintiffs. The rent was paid by the defendants to the plaintiffs since they had become owner of the property according to the last will dated 28-3-1960 of Smt. Vidyawati. The plaintiffs were Realizing the rent in their own right and the defendants had attorney to the plaintiffs. The defendants are, thereforee, estopped from denying that the plaintiffs are owner-landlords according to the provisions of S. 116 of the Evidence Act. The learned counsel for respondent relies upon Kumar Krishna Prasad Lal Singh Deo v. Baraboni Coal Concern Limited and others and Parameshwar Lal Agarwalla and another v. On the death of Jay Narayan Jalan. His heirs Dalu Ram Jalan and another Air 1957 gua 188. The Privy Council had observed that Section 116 does not deal or profess to deal with all kinds of estopped which may arise between landlord and tenant. The principle does not apply to disentitle a tenant. The principle does not apply to disentitle a tenant to dispute the derivative title of one who has since become entitled to the reversion though in such cases there may be other grounds of estopped e.g. by attornment, acceptance of rent etc. The Assam High Court purports to hold that when a tenant in possession has by payment of rent attorney to the successor in interest of the deceased landlord, he would be estopped from denying the title of the successor landlord. But in John Nadjarian v .E.F.Trist AIR 1945 Bom. 399 Chagla J. after considering Privy Council decision said that although the fact of the defendant having attorney tenant to the plaintiff creates an estoppel in favor of the plaintiff, it still does not prevent the defendant from showing that he attorney tenant in ignorance of the fact that the plaintiff had no title. It is competent to the defendant to show that the plaintiff had no title at the date when the defendant attorney tenant to him.
(13) In this case, the plaintiffs claim an injunction against the defendants against sub-letting, assigning or parting with possession. They have not mace any assignment. Sub-letting was permitted to them under the lease but they have not sub-let. They have only parted with possession. Sec- corporation 16 of the Delhi Rent Control Act, 1958 to which the learned counsel for the respondents referred also creates no bar against parting with possession. That apart, according to the decision of this High Court of 31-7-1972 to which I have referred earlier, the applicant is otherwise a co-owner of the property in dispute. He claims to have obtained possession of the suit property perhaps before or perhaps after the temporary injunction was issued. He next claims his share on the basis of a prior will of 1959 while the respondent are claiming under a subsequent will of 1960. He contends that the second will is not genuine because it was made on 28-3-1960 and the deponent lived for another six years and yet she did not get it registered as she did in case of the will made only three months before. No reason has been given in the second will why she has cancelled the earlier one just within a space of three months and if the will is proved, it will, though not judgment in rem yet, be relevant under Section 43 of the Evidence Act in favor of the plaintiffs in the partition suit. If a person recovers rent, it does not mean he has become the landlord unless the rent is otherwise payable to him. If a coowner does so, he does so, on behalf of all the co-owners. It is not a simple suit based upon tenancy but the scope of the enquiry already covers the question of title. The plaintiffs have themselves widened the controversy. The situation is:
(1)Neither the plaintiffs nor the petitioners have put the tenants in possession: and both claim a derivative title;
(2)The petitioner is not a stranger without any semblance of title. Both of them are co-owners. But the plaintiffs claim to the exclusion of the petitioner;
(3)The plaintiffs have been collecting rents from the defendants and claim attornment and have instituted this suit for restraining the tenants from parting with possession etc., while the petitioner has by some means fair or otherwise able to obtain possession during the pendency of the suit. The plaintiffs have not applied for restoration of status quo ante.
(14) Now in a situation like this, I am doubtful if the suit in the present form can continue. However, if the plaintiffs were to ask for adding the petitioner as a defendant, could he be refused on the ground that the petitioner was neither a proper party not a necessary one The answer would be no. The question involved in the suit is not a simple one solely relating to rights between Lesser and lessee, but the crucial issue is whether the plaintiffs are owners-landlords to the exclusion of the co-owners in virtue of the second will. Can that issue be decided effectually and completely without the presence of the petitioner. Again the answer will be no. The object of Order I Rule 10(2) is that the real dispute raised in the suit should be decided in the presence of all the parties interested in the suit. It is not limited to questions which are involved in the suit as between the parties originally imp leaded : Razia Begum v. Sahebzadi Anwar Begum and others Air 1958 Ap 195. That is why, it seems to me. Order I Rule 3 has been amended to say that all persons may be joined in one suit as defendants if the right to relief in respect of the same transaction exists against such persons jointly, severally, or in the alternative separate suits were brought against such per- sons any common question of law and fact would arise. A material question common to the parties and to third parties should be tried once for all. To secure this result the court has a discretion to add parties which it should exercise, unless by the addition of new parties either of the parties already on the record would be prejudiced or hindered of their remedies : Vydianadayyan v. Sitaramayyan 5 Mad. 52. Not to add the petitioner is not to exercise the jurisdiction propertly.
(15) I, thereforee, accept this revision petition, set aside the impugned order and direct that the application of the petitioner be accepted and he be added as a defendant. No costs.