Skip to content


Urban Improvement Trust Vs. Raj Kumari and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 438, 457 and 458 of 1967
Judge
Reported inAIR1969Raj131
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10(2) - Order 2, Rule 3; Evidence Act, 1872 - Sections 116
AppellantUrban Improvement Trust
RespondentRaj Kumari and ors.
Appellant Advocate C.L. Agrawal and; R.P. Goyal, Advs.
Respondent Advocate D.P. Gupta and; H.C. Rastogi, Advs.
Cases Referred and Gregory v. Doidge
Excerpt:
.....the petitioner is added as a party to the suit which are clearly beyond the scope of the present suit. and in such a suit it is better both in the interests of government and for the proper adjudication of the question of title, that it should be tried by a competent court in a suit directly framed and brought for tiiat purpose'.12. in srilla sri subramanfya desika ganana's case, air 1932 mad 688 it was held that: there are some well known exceptions to the aforesaid dictum, viz. ordinarily, a tenant who had attorned would not set up this defence unless some person had satisfied him of a better title and prohibited him from paying rent to the plaintiff. at the same time it has been clearly observed that the question of rights of third parties do come in such cases be-cause the effect..........who were described as tenants of one shivlal deceased from whom they claimed to have purchased the suit property. the defendants in their written statements denied that they held the property as tenants of shivlal. they stated that they were in possession of the suit property since the time of their ancestors and were permanent tenants of the land and had constructed houses on it at their own costs. they further pleaded that shivlal had no right to transfer the suit property to the plaintiffs in each case as he was the 'muafidar' or 'jagirdar' whose jagir had resumed by the state of rajasthan under the rajasthan land reforms and resumption of jagirs act of 1952 (hereinafter called the act of 1952) and thus the ownership of the suit property vested in the state. they also stated that the.....
Judgment:
ORDER

C.B. Bhargava, J.

1. These three revision petitions are being dealt with together as the petitioner is common to them and they also raise common questions of law and fact.

2. In the Court of the Munsif, Alwar, the plaintiffs-non-petitioners filed separate suits or ejectment against the defendants-non-petitioners who were described as tenants of one Shivlal deceased from whom they claimed to have purchased the suit property. The defendants in their written statements denied that they held the property as tenants of Shivlal. They stated that they were in possession of the suit property since the time of their ancestors and were permanent tenants of the land and had constructed houses on it at their own costs. They further pleaded that Shivlal had no right to transfer the suit property to the plaintiffs in each case as he was the 'Muafidar' or 'Jagirdar' whose Jagir had resumed by the State of Rajasthan under the Rajasthan Land Reforms and Resumption of Jagirs Act of 1952 (hereinafter called the Act of 1952) and thus the ownership of the suit property vested in the State. They also stated that the alleged sale in favour of the plaintiffs was fictitious.

3. The trial Court did not frame any issue on the plea taken by the defendants viz., that the ownership of the suit property had become vested in the State of Rajasthan because of its resumption under the Act of 1952. The trial proceeded when in the suit out of which Civil Revision No. 458 of 1967 has arisen, defendants made an application for framing an additional issue. The Court acceded to their request and framed additional issue No. 9 on the point whether the ownership of the suit property, due to its resumption, vested in the State and the alleged sale in favour of the plaintiffs was unauthorised On this issue too, the defendants closed their evidence ana the plaintiffs are now required to lead evidence in rebuttal. The other two cases were also ripe for arguments. It was at this stage of the cases that the petitioner--Urban Improvement Trust, Alwar made an application under Order 1, Rule 10 (2) of the Code of Civil Procedure for being impleaded as a party. The learned Munsif rejected the application in each case holding that the simple suit for ejectment cannot be allowed to be converted into a suit for title and if the petitioner wanted an adjudication of its title to the suit property it could file a separate suit. It is against these orders that the present revision applications have been filed.

4. Under Order 1, Rule 10 (2) of the Code a person may be added to a suit:

i. when he ought to have been joined, whether as plaintiff or defendant, that is when he is a necessary party.

ii. when without his presence the question in the suit cannot be completely decided, that is when he is a proper party,

5. The question of addition of parties under the said rule is generally one of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case subject to the provisions of Order 1, Rule 1 and Order 2, Rule 3. The rule has been enacted to prevent multiplicity of suits and conflict of decisions though it is not the only consideration in impleading parties.

6. In these cases learned counsel has urged that Shiv Lal was a jagirdar and his jagir including the suit property was resumed under the Act of 1952 and thereafter, it vested in the State. Thereafter, under the provisions of Section 43 of the Rajasthan Urban Improvement Act of 1959 (hereinafter called the Act of 1959), a notification was issued by the State whereby these properties along with other properties were placed at the disposal of the petitioner. After the vesting of the property in the State, Shivlal had no right left to transfer it to the plaintiffs. It is pointed out that the presence of the petitioner before the Court is necessary to enable it effectually and completely to adjudicate upon the question whether the petitioner or the plaintiffs is the owner of the land. It is urged that the power of adding parties can be exercised by the Court at any stage of the proceedings.

7. On the other hand learned counsel for the plaintiffs-non-petitioners has vehemently urged that by adding the petitioner, controversies which are foreign to the scope of the suit, would be introduced and the trial in all the cases which had now become mature for disposal, would be reopened. It is pointed out that the suits were instituted in the years 1962 and 1963 and the petitioner applied to be impleaded as a party about four years after their institution. It is pointed out that in the present suits the only question to be tried between the parties is whether the defendants are the tenants of the plaintiffs they having purchased it from Shivlal and have a right to a decree for ejectment against them. It is also pointed out that the suit property consists of buildings and house sites and could not have been resumed by the State as provided in Section 23 of the Act of 1952. It is also pointed out that even if the suit property was resumed its ownership vests in the State of Rajasthan and not in the petitioner. The effect of the notification relied upon by the petitioner is only to place the property at the disposal of the petitioner and not of vesting its ownership in it. It is contended that all these questions will have to be determined by the Court if the petitioner is added as a party to the suit which are clearly beyond the scope of the present suit.

8. It may be stated at the outset that it is not the contention of the learned counsel for the petitioner that Urban Improvement Trust is a necessary party in the suits. He, however, says that the petitioner is a proper party whose presence before the Court is necessary in order to enable the Court to effectually and completely to adjudicate upon and settle all the questions involved in the suit.

9. In support of his contention learned counsel for the petitioner relied on (Pasum-arthi) Subbaraya Sastri v. Mukkamala Seetha Ramaswarni, AIR 1933 Mad 664, G. Krishna-swami Naidu v. Municipal Council Bellary, AIR 1937 Mad 641, Razia Begum v. Sahe-bzadi Anwar Begum, AIR 195S SC 886 and Sampatbai v. Madhusingh Gambhirji, AIR 1960 Madh Pra 84. On the other hand learned counsel for the plaintiffs non-petitioners has placed reliance on Uttam Gulab-rao Sakhare v. Champatrao Gulabrao Gawande, AIR 1960 Bom 238, Mst. Singar Kanwar v. Dhoopchand, 1953 Raj LW 320 a judgment in Civil Revn. No. 94 of 1964. D/- 18-1-1968 (Raj), Anjuman Monia and S. P. Mohinia v. Murad Mohammed, Mt. Bindru v. Sada Ram, AIR 1960 J and 67, Kana v. Kishenlal, AIR 1952 Aimer 59, M. Abdul Razack v. S. Mohammad Shah, AIR 1962 Mad 346, Motiram Roshanlal Coal Co. (P.) Ltd. v. District Committee, Dhanbad, AIR 1962 Pat 357, Mujta Bai v. Mehbub Rehman, AIR 1959 Madh Pra 357, Srilla Sri Subramaniya Desika Ganana v. R. Anantka-krishnaswami Naidu, AIR 1932 Mad 688, Pravat Chandra Giri v. Amulya Chandra Bhaduri, AIR 1927 Cal 340, Charmar Kunchelan v. Kandan Damodran, AIR 1960 Ker 284, Lodai Mollah v. Kally Dass Roy, (1882) ILR 8 Cal 238 and Gagan Bekari Patnaik v. Rameshwar Lal, ILR (1966) Cut 456. It is however, not necessary to refer to all the decisions relied on by the parties and it would be sufficient to refer only those which relate to suits for ejectment.

10. In (Pasumarthi) Subbaraya Sastri's case, AIR 1933 Mad 664, where the plaintiff brought a suit to eject the defendant from a site and to remove a pial erected by him thereon and the plea of the defendant was that the land belonged to the Municipal Council, that he put up a pial with its permission and that the Municipal Council was a necessary party to the suit, it was held that:

'The Municipality was a necessary party to the suit and not having been made one, in spite of objection taken from the start, the suit must be dismissed'.

In this case the learned Judge mainly relied upon Umed Mal v. Chand Mal, AIR 1926 PC 142 and the observations made by Dicey on Parties to an Action, Rule 113. This case was referred in Uttam Gulabrao Sakhare's case, AIR 1960 Bom 238 and Mudholkar J. as he then was, distinguished it and held that:

'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 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'.

11. In Lodai Mollah's case, (1882) ILR 8 Cal 238 it was held per Field J., that:

'Where a person sued for rent sets up the title of a third party, and alleges that he holds under, and pays rent to him, such third party ought not to be made a party to the suit 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.

Such a suit raises only two issues, viz.,

(1) Does the relation of landlord and tenant exist between the plaintiff and defendant?

(2) Are the alleged arrears of rent due and unpaid?

And these are questions in which the plaintiff and defendant are alone concerned, and no third party claiming a title adverse to the plaintiff can properly be made a patty to the trial of these issues.

Section 28 of the Civil Procedure Code is not imperative, but allows a discretion to be exercised; and in such a suit it is better both in the interests of Government and for the proper adjudication of the question of title, that it should be tried by a competent Court In a suit directly framed and brought for tiiat purpose'.

12. In Srilla Sri Subramanfya Desika Ganana's case, AIR 1932 Mad 688 it was held that:

'In an ejectment suit on basis of lease deed, prima facie, persons claiming adverse lights to the plaintiffs title should not be made parties in the absence of special circumstances'.

13. In Pravat Chandra Giri's case, AIR 1927 Cal 340 following the decision in Lodai Mollahs case, (1882) ILR 8 Cal 238 it was held 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'.

14. In Mst. Singar Kanwar's case, 1953 Raj LW 320 it was held that:

'In a rent suit where the defendant admitted the execution of rent note but pleaded that he executed it under undue influence and that one was the real landlord, it was held that was not necessary party'.

Lodai Mollah, (1882) ILR 8 Cal 238, Pravat Chandra Giri, AIR 1927 Cal 340, Srila Sri Subramaniya Desika Ganana, AIR 1932 Mad 688 and N. T. Palarnsamy Chettiar by agent V. D Seetarama Mtidaliar v. Momara Chettiar, AIR 1950 Mad 91 were relied upon for the said view.

15. In Gagan Behari Patnaik's case. ILR (1966) Cut 456 it was held that:

'A simple suit for rent should not be converted into a complicated title suit. There are some well known exceptions to the aforesaid dictum, viz., cases where a third party claims a share of the rent sued for, or where a third party is alleged to be a transferee from the tenant with the landlord's consent, or where the defendant in a suit for rent by the lessee against the sub-lessee pleads payment to a third party with the owners's consent Subject to the various exceptions, some of which have been illustrated above, a suit for rent should not be converted into a complicated title suit and a third party claiming a title rival to that of the plaintiff-landlord is not a necessary Party .'

It may be noted that the petitioner in that case had already filed a separate suit claiming that he was the real owner of the disputed property.

16. Similar view was taken in Chamiar Kunchelan's case, AIR 1960 Ker 284.

17. A review of the above decisions would show that they fall in three categories, viz., (i) that the third party is a necessary party (Pasumarthi) Subbaraya Sastri's case, AIR 1933 Mad 664 (u) the third party is not even a proper party, Lodai Mollah's case, (1882) ILR 8 Cal 238 and other cases which nave followed it, (iii) that the third party is a proper party, Uttam Gulabrao's case, AIR 1960 Bom 238. However, to my mind the question whether the third party claiming title to the property in a suit for ejectment is a proper party or not, would also depend upon the nature of the plaintiffs title. In cases where there is a contractual relationship of landlord and tenant and the defendant has been inducted into possession of the suit property as tenant by the plaintiff and the rule of estoppel contained in Section 116 of the Evidence Act operates against the tenant no question of impleading a third person as a party setting up title to the suit property can arise because any enquiry about the tide of a third party would be completely shut out by reason of the rule of estoppel and in such cases the third person would not be a proper party within the meaning of Order 1, Rule 10 (2), Civil P. C. However, in cases where the plaintiff claims title to the suit property on the basis of inheritance, assignment etc., and the tenant has not attorn-ed to him and the above mentioned rule of estoppel does not operate against him and it is open to him in me suit to set up the title of a third person, such third person in appropriate cases can be regarded as a proper party whose presence before the Court will be necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In such cases there would be no question of converting a simple suit into a suit of title and no controversy beyond the scope of the suit would be introduced as after his joinder the main evidence in the suit and the main enquiry will remain the same as before his (addition. In Lodai Mollah's case, (1882) ILR 8 Cal 238, Field J. observed :--

'But it is clear that, in cases falling under this head, there may be a further defence; there may be a denial of the facts which constitute the derivation, or denial of the assignment, or of the adoption, ot of the validity of either; or of the plaintiff being the heir of the original person from whom he professes to derive title by inheritance. It is clear that it is only as regards this further matter of defence that the rights of third parties can come into question. The effect of an assignment, or of an adoption, or of a claim founded on inheritance, may be to deprive of the property, and so of the rents and profits, of some other person who, but for such assignment or adoption or claim founded on inheritance, would be entitled thereto. This class of cases may be further divided into (a) cases where the defendant has attorned to the plaintiff; and (b) cases where the defendant has not attorned to the plaintiff, (a) Where the plaintiff claims by a derivative title, and the defendant has attorned to him, the defendant is not thereby stopped from showing that the title is really not in the plaintiff but in some other person: (Seethe cases of Rogers v. Pitcher, (1815) 6 Taun. 202, Claridge v. Mackenzie. (1842) 4 Man & G. 143 and Gregory v. Doidge, (1826) 3 Bing. 474). In this last case, a person had occupied lands under A. Upon A's death this person entered into an agreement to pay rent to D, and paid one shilling as an acknowledgment of D's title, being ignorant that D had no title to the property. It afterwards turned out that D had no title, and it was held, that such person might show in answer to a suit for rent that D had really not title. Ordinarily, a tenant who had attorned would not set up this defence unless some person had satisfied him of a better title and prohibited him from paying rent to the plaintiff. There is no plausible reason why this third person should be made a party to the suit for rent, and it is really for his own interest that he should not be a party. If he Is a party, he will be bound by the adjudication upon the question of title, and this adjudication may be based upon scanty materials and insufficient investigation, which are not uncommon when the subject-matter of the claim itself is inconsiderable. If he is not a party, he has the chance of the tenant's plea being successful, and so of him self stepping into the place of landlord without personal litigation. If the tenant's plea is unsuccessful, he can litigate the question of title himself with better preparation and with experience gained from the contest at which he looked on without being a party'.

18. It would appear from the above that it was on the ground of expediency that it was held that the third person need not be joined as a party in such a suit because it is in his own interest that he should file a separate suit for the proper adjudication of his own title. At the same time it has been clearly observed that the question of rights of third parties do come in such cases be-cause the effect of an assignment, or of an adoption, or of a claim founded on inheritance may be to deprive of the property, and so of the rents and profits, of some other person.

19. The power of the Court to add par-ties under Order 1, Rule 10 (2) came up for consideration by the Supreme Court in Razia Becam's case, AIR 1958 SC 886. Their Lordships of the Supreme Court held inter alia that:

'In a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject matter of a litigation'.

20. Bearing in mind the above principle and the views expressed in the various decisions quoted above, I am of the view that in suits for ejectment falling under the second category noted by me, a third person claiming title in himself can be a proper party and the Court would not be exercising its discretion improperly to implead him as a party for the complete and effectual determination of the points involved in the suit,

21. The next question whether the present cases call for any interference with the discretion exercised by the Court below even though the reason given by that Court is not wholly sound. For more than one reason I am not inclined to interfere with the lower Court's discretion. Firstly, I am not satisfied with the bona fides of the petitioner in making the applications for being added as parry in the lower Court because as mentioned earlier, these suits were filed as back as 1962 and 1963 and the petitioner submitted its applications in 1967 and sometime earlier also got some documents executed in (sic) by the defendants which shows its object is to help the defendants in dfeating the suit of the plaintiffs and not the vindication of its own rights. The suits were filed as back as 1962 and 1963 and no reason has been shown why applications for being added as a party were made as late as 1967, when suits had become ripe for arguments. Secondly, the suit property is situated in the city of Alwar and is in possession of the defendants. It seems to me rather doubtful although I express no opinion on this question how buildings and house sites situated in the city of Alwar could be resumed in the resumption proceedings taken against Shivlal under the Act of 1952. Thirdly, the parties are added very often to avoid multiplicity of suits and conflict of decisions. But here I am told that Shivlal had transferred houses and lands situated in the same locality known as Shivlalpuri to different persons under various transfer deeds and many of them have filed suits against persons in occupation of those properties. There are about 40 suits pending in the Court below of similar nature. In case the petitioner is added party in these suits, it will have to be added as party in all the pending suits also and in each suit separate enquiry will be made regarding the title of the petitioner which instead of avoiding multiplicity of suits will lead to multiple enquiries in all the suits. On the other hand, if the petitioner files a separate suit in which all the transferees and the persons in occupation of those lands can be impleaded as defendants because there would be a common question of law and fact to be determined, the controversy will be determined once for all in that one enquiry. For the above mentioned reason no interference is called for with the order passed by the Court below.

22. The revision applications are rejected, but without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //