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Brij Mohan Lal Bhargava Vs. Smt. Lila Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 385 and 386 of 1982
Judge
Reported inAIR1984Raj45; 1983()WLN248
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 and 10(2)
AppellantBrij Mohan Lal Bhargava
RespondentSmt. Lila Bai and anr.
Appellant Advocate S.L. Mardia, Adv.
Respondent Advocate J.R. Tatia, Adv.
DispositionRevisions dismissed
Cases ReferredIn Smt. Yamuna v. A. Rama Amin
Excerpt:
.....alone need to be decided in the suits and the arena could not be widended by addition of a third party in the suit. in these cases, i am of the view that addition of brijmohan would unnecessarily complicate the matter and in that event lengthy and intricate enquiries would be required to be made in respect of questions which do not fall within the ambit of the dispute involved in the suit;revision dismissed. - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of..........to convert a simple suit for rent and ejectment between the landlord and tenant into a complicated title suit between persor claiming competing rights of ownership in the property in dispute. that would tend to lead to a protracted litigation, involving the trial and decision of intricate questions which are totally outside the ambit of the suit. a triangular dual at which the plaintiff sues at the defendant, while the defendant and third party sue at the plaintiff should not ordinarily be permitted unless the third party shows a direct and immediate interest in the property involved in the suit and in that event it would be in-equitable not to allow the matter to be fought out between all the interested parties completely and effectively in the suit. however, the court should be chary.....
Judgment:
ORDER

Dwarka Prasad, J.

1. These two revision petitions raise identical questions and arisein similar circumstances and as such they are disposed of by a common order.

2. The petitioner Brij Mohan Lal is alleged to be the previous owner of the properties in dispute, which he is said to have sold in one case to Smt. Lila Bai and in another case to Mohandas, by means of registered sale deeds. The purchasers filed suits for ejectment and for recovery of arrears of rent against Lak-hunal and Ramjan Khan, who are the tenants in the premises which have been purchased by Lila Bai and Mohandas respectively. In the two suits filed for recovery of arrears of rent and for ejectment by the aforesaid purchasers against the tenants, Brij Mohanlal filed applications under Order 1, Rule 10 C. P. C. for being impleaded as a party defendant. His case is that the sales, said to have been made by him in favour of Smt. Lila Bai and Mohandas, were benami transactions and were made without consideration and were invalid and void for various reasons including fraud and that Brij Mohanlal still continued to be the owner and landlord of the premises in dispute and as such he was a necessary party in those suits. The applications filed by Brii Mohanlal were rejected by the trial court in both the suits and it was held that he was neither a necessary nor a proper party in the suits for recovery of arrears of rent and ejectment filed by the plaintiffs against the tenants.

3. In these revision petitions, it was urged by the learned counsel for the petitioner Brij Mohanlal Bhargava that in order to effectually and completely adjudicate upon and settle all disputes between the parties in the two suits, the petitioner was a necessary party in those suits. The submission of the learned counsel is that as the contention of the defendants-tenants in those suits was that they were the tenants of Brij Mohanlat and were paying rent to him, it was at least proper to add Brii Mohanlal as a party defendant in the two suits.

4. It is a settled principle of law that a simple suit for recovery of rent between a land-lord and tenant should not ordinarily be converted into a suit for title in respect of the property of which the rent and possession is claimed. The statement of law as to who are proper parties in a suit for ejectment appearsfrom the following passage from Dicey on Parties to an action:--

'The persons who have a right to defend in an action of ejectment are any persons named in the writ and any person who is in possession by himself or his tenant..... The object of the plaintiff in ejectment is to obtain, not damages but possession of the land. He brings his action against the persons actually in possession, and if he succeeds e. g. though their letting judgment go by default, he turns them out and himself obtains possession. This may cause damage to a person, who owns but does not himself actually occupy the land and is therefore not made a party to the action.'

The cases for recovery of rent and ejectment of tenant can be divided into two classes, namely,

(i) where the plaintiff has let the defendant into possession of the premises in dispute;

(ii) where the plaintiff is not himself the person who let the defendant into possession, but claims under a title derived from the person who did it. Now, the cases of derivative title can be further sub-divided into two classes, namely:--

(a) by assignment, including gift, sales, devise or lease; and

(b) by inheritance, including adoption amongst Hindus. The cases, where the plaintiff relies on derivative title, can be divided into two classes, i. e.

(i) where the defendant has attorned to the plaintiff; and

(ii) where the defendant has not attorned to the plaintiff.

In cases where the plaintiff has let the defendant into possession or in cases where the defendant has attorned to the plaintiff ordinarily the tenant would be estopped on account of the provisions of Section 116 of the Evidence Act from disputing the title of the plaintiff. Thus, in cases of derivative title, where the defendant has attorned to the plaintiff, the defendant would not ordinarily set up the defence that the plaintiff has no title unless some other person has satisfied him of a better title and prohibited himfrom paying rent to the plaintiff. If there is any such person then it would be a plausible reason to make him a party to the suit for rent and ejeclment and itwill be really in the interest of the plaintiff that such a person should beadded as a party to the suit, because if he is made a party to the suit then he will be bound by the adjudication made upon the question of title. If the adjudication is made in the absence of such a third party, then it may be made upon scanty material and insufficient investigation and may in a large majority of cases lead to further litigation.

5. But, in cases where the plaintiff has not let the defendant into possession and the plaintiff's claim is based on derivative title, yet the tenant has not attorned in favour of the plaintiff, then the plaintiff will have to prove his title as a condition precedent to the establishment of the relationship of landlord and tenant between himself and the defendant. In some cases, the plaintiff's title may be so clear and the defence may be so palpably obstructive and unfounded that the court will be justified in dealing with the question of title in the rent suit as between the plaintiff and defendant only. In such cases, it would not be proper to make any lengthy and intricate enquiries about the question of title of the plaintiff. In such cases the third person should be left to litigate his claim for title, which must be adverse to the plaintiff by means of a separate suit.

6. Mudholkar J., as he then was, observed in Uttam Gulabrao Sakhare v. Champatrao Gulabrao Gawande, AIR 1960 Bom 238 as under:--

'Where in an ejectment suit instituted by the plaintiff as landlord against the defendant in actual juridical possession of the house, The defendant pleads that the house in question belonged to a third party and not to the plaintiff and the title of the third party is disputed by the plaintiff, though the third party is proper party to the suit, his joinder was not necessary to enable the plaintiff to obtain the relief which he claimed against the defendant.'

The principle applicable to such cases is that if the plaintiff can prima facie make out a legal title to the property in dispute, he is entitled to maintain the suit, against the person in actual juridical possession of the disputed premises, for recovery of its possession, without making the person under whom the latter claims to hold, as a party to the suit. It is enough for the plaintiff to sue the person in actual juridical possession.It would be unfair in such cases to convert a simple suit for recovery of rent or for ejectment between the landlord and tenant, into a long drawn out controversy about the title to the property in dispute. In such cases it would be fair to leave the person claiming adverse rights to the plaintiff's title to fight his own claim by means of a separate suit.

7. In the present case, the question which the petitioner Brij Mohanlal desires to raise by filing an application under Order 1, Rule 10 C. P. C. for being added as a party to the suit is about the nature of the transaction of sale, while such sales were admittedly made by Brii Mohanlal in favour of Smt. Lila Bai and Mohandas. Whether the alleged sales were benami or were without consideration or invalid and void for any other reason, including that such transactions of sale were tainted by fraud all such questions would necessarily involve long drawn out proceedings and intricate enquiries, in which the defendant is not at all interested. As against the tenant, the plaintiff is required to establish his title to the property, which in the present case is based upon registered sale deeds and any objection by the defendant on the basis of defect of title - in the plaintiff, because of such sales being invalid or void or being benami transactions, is apparently obstructive and is concerned not so much with the defence of the tenant as with the advancement of the adverse claim of the third party. The addition of the petitioner third party in such suits would unnecessarily complicate the matters and in such circumstances his presence on the record is not necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions raised in the suit.

8. The argument of the learned counsel for the petitioner is that the power under Order 1, Rule 10 C. P. C. should be invoked by the Court in favour of a third party, when questions relating to him are required to be decided by the Court in the suit, The emphasis of the learned counsel is that Order 1, Rule 10 C.P.C. does not provide only for adjudication of questions between the parties but also questions arising between the parties and third parties which are necessary to be disposed of in order to settle all controversies raised in the suit. There is no doubt that Order 1, Rule 10G. P. G. employs the expression 'all the questions involved in the suit' and not only the questions involved between the parties. Thus, not merely the questions which are involved between the parties, as originally impleaded but other questions which are also raised in the suit, involving the parties to the suit as well as third parties, have to be decided for a proper and effectual adjudication. In my view, these parties who have a direct and immediate interest in the dispute in controversy in the suit should undoubtedly be impleaded but at the same time the court should not allow adjudication of collateral matters, so as to convert a simple suit for rent and ejectment between the landlord and tenant into a complicated title suit between persor claiming competing rights of ownership in the property in dispute. That would tend to lead to a protracted litigation, involving the trial and decision of intricate questions which are totally outside the ambit of the suit. A triangular dual at which the plaintiff sues at the defendant, while the defendant and third party sue at the plaintiff should not ordinarily be permitted unless the third party shows a direct and immediate interest in the property involved in the suit and in that event it would be in-equitable not to allow the matter to be fought out between all the interested parties completely and effectively in the suit. However, the court should be chary of adding parties to the suit merely because that would save a third person the expense and botheration of a separate suit, for seeking adjudication of his rights.

9. The leading English case on the question is Moser v. Marsden, (1892) 1 Ch 487. The plaintiff in that case was patentee of a machine who brought ah actiti'on against the defendant for using a machine, which he alleged was an infringement of his patent. M, the maker and patentee of the defendant's machine applied to be added as a defendant, alleging that the judgment in the action would injure him. It was held in that case that M, not being directly interested in the issue between the plaintiff and the defendant, but being only indirectly and commercially affected, the court had no jurisdiction to add him as a defendant. Lord Justice Lindley observed as under in the aforesaid case:--

'It cannot be said that the case comes within that part of the rule which provides that the Court may order the names of any parties, whether plaintiffs or defendants, 'who ought to have been joined', to be added. In no sense can it be said that Montforts ought to have been joined as a party to this action. But reliance is placed on the following words of the rule, which provides for adding the names of parties 'whose pre sence 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 cause or matter'. But what is the question involved in the action? The question, and the only question is whether what Marsden is doing is an infringement of the plaintiff's patent .....Can it be said that the rule prevents the plaintiff from, proceeding against a defendant without having to litigate with everybody who may be in any way affected, however indirectly, by the action? It appears to me that it does not. The counsel for the applicant grounded his argument on the allegation that Montfort's interest would be affected by the decision in this action. It is true that his interest may be affected by the decision in this action. It is true that his interest may be affected commercially by a judgment against the defendant, but can it be said that it would be legally affected? Can we stretch the rule so far as to say that whenever a person would be incidentally affected by a judgment he may be added as a defendant.'

10. Learned counsel for the petitioner cited certain decisions in support of his submission. Harbans Singh v. E. R. Srinivasan AIR 1979 Delhi 171 was a case where the court expressed the view that all that was necessary for the court at that stage was to be prima facie satisfied that the claim of the third party who desires to be impleaded as a defendant in the suit for ejectment on the ground that he was a real tenant, was bona fide and plausible. In these circumstances, it was held that the third person was entitled to be impleaded as a defendant in order to prevent multiplicity of proceedings and for the purpose of completely and effectively deciding the question in controversy in the suit in the presence of allconcerned parties. Similarly in the decision of this Court in Sanwarmal v. Budhmal, (Civil Revn. Petn. No. 308 of 1982 decided on December 20, 1982) the question was about the addition of a person when the plaintiff referred in the suit as a sub-tenant, but who himself claimed to be a tenant-in-chief, deriving his rights directly from the plaintiff. In that case, the third party was allowed to be added as a party defendant in the suit, as the/ plaintiff himself had admitted that such third person was in actual possession and in effect such party was sought to be dispossessed on the alleged ground of being a sub-tenant. Following the decision of their Lordships of the Supreme Court in South Asia Industries Pvt. Ltd. v. S. Sarup Singh, AIR 1966 SC 346 it was held that where the effect of the decree, which may be passed in a suit for ejectment by a landlord against the tenant, would be to obtain ejectment of the person claimed to be the sub-tenant it would be proper that the person who was sought to be actually ejected should be added as a party defendant on his request, so that he may be able to have his say in furtherance of his defence, lest the so called direct tenant may be negligent and incompetent in his defence or may even collude with the landlord or may not care to defend the suit at all.

11. In Khaja Abdui Khadar v. Mah-bub Saheb, AIR 1979 Andh Pra 152 although the suit for ejectment of the defendant was instituted by the plain-tiffs claiming themselves to be the owners of the land in dispute, yet the defendant claimed himself to be in possession on his own right and not as a ten-ant, while a third party applied to be joined as a defendant independently claiming to be the owners of the land. Thus, the plaintiffs, the defendant and the third party were all interested in the decision of the question of title as each one of them claimed to be the owner of the property in dispute and the Court was called on to decide the question relating to ownership of the said property. In these circumstances it was held that the third party was a proper party, in whose presence the question could be finally and effectually adjudicated upon.

12. All the aforesaid decisions areclearly distinguishable. The other cases relied upon by the learned counsel for the petitioner laid down the broad principle that in a suit relating to property, the person to be added as a party should have a direct interest, as distinct from a commercial interest in the subject-matter of litigation. Their Lordships of the Supreme Court in Rasia Begum v. Sahebjadi Anwar Begum. AIR 1958 SC 886, laid down the aforesaid principle and the same was followed in A. Gyaneshwar Rao v Mahmood Shareef, AIR 1982 Andh Pra 155. The last mentioned case was a suit for specific performance of a contract and the person who sought to be impleaded as a party in the suit claimed himself to be not only the rightful owner but also the person in possession of the property, which was subject-matter of dispute in the suit. As the party who desires to be added as a party in the suit was in possession of the property, he would naturally be affected by the decree which may be passed between the parties in the suit, in respect of the property in dispute.

13. In Smt. Yamuna v. A. Rama Amin AIR 1983 Kant 27, a sub-lessee sought to be impleaded as a party defendant in the suit for eviction, in which one of the grounds taken was unlawful subletting of the premises in favour of the person who desired to be impleaded as 8 party defendant in the suit. The case was similar to Banwarmal's case (supra) and the sub-lessee was rightly ordered to be added as a party defendant in the suit. In that case also the decision of their Lordships of the Supreme Court in South Asia Industries case, AIR 1966 SC 346, was relied upon for holding that the sub-lessee was directly interested in showing that the sublease was valid and that the premises were sub-let with the consent of the landlord.

14. So far as the present cases are concerned, there can be no doubt that the questions which the petitioner Brij-mohanlal desires to get decided by his addition as a party defendant to the two suits relate to the validity of the sale deeds or the alleged benami nature of the transactions between him and the plaintiff. Such questions which may possibly arise between the plaintiffs and Brijmohanlal, regarding the validity ofthe alleged sales or the nature of the transactions of sale are not, relevant, so far as the question of ejectment of the tenants from the premises in dispute or recovery of rent from thorn is concerned. The scope of the suits for ejectment is a limited one and the questions which would be involved in such suits between the plaintiffs and the defendants alone need to be decided in the suits and the arena could not be widened by addition of a third party in the suit. In these cases, I am of the view that addition of Brijmohanlal would unnecessarily complicate the matter and in that event lengthy and intricate enquiries would be required to be made in respect of questions which do not fall within the ambit of the dispute involved in the suit. I, therefore, hold that Brijmohanlal is not a necessary party to the suit, even he is not a proper party in such suits. The trial Court has thus exercised its discretion rightly is not adding Brijmohanlal as a party defendant in the two suits.

15. In the result, the orders passed by the trial Court in both the suits are upheld and the revision petitions are dismissed. The parties shall bear their own costs of these revision petitions.


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