Pakenham Walsh, J.
1. The plaintiff brought the suit to eject the defendant from a site and to remove a pial erected by him thereon. 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. This latter point was raised as issue No. 3 and the objection was repeated in appeal. With regard to issue 3 the trial Court said:
According to the plaint allegations, plaintiff exclusively claimed the suit lane as his property. So it is unnecessary for him to implead third party on the contentions raised by the defendant.
2. In respect of this its judgment reads throughout as if it were a decision between the plaintiff and the Municipality. The District Munsif says in para. 6:
I am constrained in this state of evidence as observed (sic) that plaintiff had made out a better title to the suit lane than the Municipality,
and later on in the same paragraph
As already observed there is some dispute between plaintiff and Bezwada Municipality about the ownership of this lane. As the available evidence is not before the Court, I am constrained to find in this state of evidence that plaintiff had made out a better title than the Municipality.
3. In dealing with this issue the lower appellate Court says:
As for the contention of the defendant that it is part of the Municipal lane, there is no proof of it.
4. If by proof the learned Subordinate Judge means evidence, he is clearly in error. There is the evidence of the receipts granted to the defendant by the Municipality as well as the direct evidence of D.W. 4, the Municipal Town Surveyor, who swears it is a public lane. An attempt was made in arguing the case before me to state that what the defendant got the license receipts for was not the present pial but some other in a different position. That cannot be maintained, for it is seen from the plaint that the pial in its present position has been there for four years which is within the period covered by two receipts. Both the Courts decreed the suit in plaintiff's favour and the main contention in this second appeal is that the Municipality was a necessary party.
5. The plaintiff, is the owner of house sites A and A-l and the defendant of house site B. Plot C is the one in dispute. The written statement has not been printed. If the defendant's written statement as regards the origin of the suit is as extracted in paragraph 3 of the judgment of the District Munsif, it is very badly expressed. It is there stated as follows:
The defendant contends that the alleged land C is not the exclusive one of the plaintiff. The plaintiff and his predecessor-in-title had no interest in that site. The sites A and B originally belonged to one joint family. When they were divided they kept this suit land C as their joint lane. Plaintiff purchased A and A-1 marked land only eight months back, while defendant purchased site marked B twenty years back. The Municipality acquired this suit land long ago.
6. I think that the defendant clearly means that A, B and C originally belonged to the joint family. If that were not so, there was no meaning in saying that when they divided they kept the suit land C as joint lane. However, the matter is not of very much importance because the defendant's clear case was that the Municipality acquired the suit land long ago and the question is whether the Municipality is not a necessary party to the suit in the circumstances.
7. For the appellant is quoted Umed Mal v. Chand Mal (1926) L.R. 53 IndAp 271 : I.L.R. 54 Cal. 338 : 52 M.L.J. 368 a Privy Council case. In that case where a mortgagee as purchaser of the mortgaged properties in Court-auction in execution of his mortgage decree sued a third party, not being the mortgagor, in ejectment of one of the items alleged to have been included in his mortgage and purchased by him in execution of his mortgage decree, without making the mortgagor a party to the suit and the Lower Courts decreed the suit, it was held that the Lower Courts acted with material irregularity in the exercise of their jurisdiction in deciding the question of title to the mortgaged property in the absence of the mortgagor and, that the High Court had jurisdiction to interfere in revision under Section 115. The present case is very much stronger than that because there the mortgagee had actually purchased the mortgagor's property. The next case is Haran Sheikh v. Ramesh Chandra Bhuttacharjee 25 C.W.N. 249. In that case where in a suit for declaration of a right of way as a village road and for removal of obstruction thereon, an objection was taken that one of the persons interested in the servient tenement had not been made a party to the suit, which was overruled by the Courts below on the ground that it was taken at a late stage, and the Courts below decreed the suit, it was held that the non-joinder of the person in question as a party to the suit was a fatal defect and on that ground the suit was dismissed ; and it was also held that notwithstanding the provisions of Order 1, Rule 9 of the Civil Procedure Code, the Court will not entertain a suit in which no effective decree can be made in the absence of an interested party. Here again the present case is much stronger for the objection was taken from the start. The next case is Mahomed Israil v. J.P. Wise (1874) 21 W.R. 327. There it was held that in a suit for possession of land, where the plaintiff alleged that he is the rightful owner of the lands which have been resumed by the Government, but that the defendant by false allegation of ownership and of possession induced the Revenue authorities to enter into settlement with him, the Government ought to be made a party. Of the five Judges one expressed no opinion on the point. So it was apparently not necessary for the determination of the case. A recent decision of Sundaram Chetty, J. in this Court in S.A. No. 1502 of 1927 is also quoted. In that case the plaintiffs as reversioners to the estate of one Sattigadu sued for recovery of possession of the plaint properties. The defendant resisted the claim setting up the title of a minor Subbulu as the adopted son of Sattigadu. Sundaram Chetty, J. held that the objection taken by the defendant that the suit was bad for non-joinder of the alleged adopted boy was good, quoting the decisions which I have already quoted. He did not however find it necessary to set aside the decree and remand the suit because in a subsequent suit the matter of the alleged adoption with the boy as a party had been gone into and the adoption found not true. Another case quoted is Brojanath Bose v. Durga Prosad Singh I.L.R.(1907) 34 Cal. 753. In that case a Digwari tenure-holder granted a lease of all the surface and the sub-soil rights. Upon a suit by the landlord without making the Government a party, for a declaration that the mineral rights belonged to him as landlord and that the defendant had no right to grant such a lease, it was held that the Government was a necessary party to the suit as the Digwari tenure was held on the condition of the performance of certain police or public services for the due discharge of which the holder had been responsible to the Government.
8. For the respondent four cases are quoted. Mahabir Prasad v. Jamuna Singh (1925) 23 L.W 75 at 79 is a decision which is quite irrelevant because it will be found that the person from whom the appellant claimed was made a defendant (Defendant 5). Even if he had not been, it is doubtful if the decision would have any relevancy because the appellant is described as his assignee. What is meant by the right jus tertii pleaded by a party in connection with this question whether that third party should be impleaded in the suit is of course a present right and not one which has been extinguished by assignment. The next case is Kashi v. Sadashiv I.L.R.(1895) 21 Bom. 229. This was a peculiar case where both parties claimed under the Government. It was held that the Government was not a necessary party. It was really a case of priority of title. The next case is Subramania v. Ananthakrishnaswami Naidu (1932) 36 L.W. 378. This was merely a matter of landlord suing his tenant under a lease. The tenant was estopped from disputing his landlord's title under Section 116 of the Evidence Act. The last case quoted is Poonit Singh v. Kamal Singh : AIR1924Pat172 . This case is exactly on all fours with Umed Mal v. Chand Mal (1926) L.R. 53 IndAp 271 : I.L.R. 54 Cal. 338 : 52 M.L.J. 368 as to the inclusion of a mortgagor. It is the decision of a single Judge and must be held wrong in the light of the Privy Council decision. There appears to be either a misquotation or a misunderstanding of some quotation from Bullen and Leake's Precedents of Pleadings, 7th Edition, which is quoted as follows:
Strictly all persons who are actually in physical possession of the property should be made defendants. It is neither necessary nor proper to join any person who is merely in receipt of the rents and profits of the land.
9. I have looked up Bullen and Leake's Precedents of Pleadings. I have unfortunately not got the 7th Edition hut only the 8th. Bullen and Leake seems to have been remodelled for, the first remark now appears on page 20. I shall quote the whole passage as it stands there: 'Strictly, all persons who are actually in physical possession of the property should be made defendants.' 'In ejectment the tenant in possession must be sued' per Lord Tenterden, C.J., in Berkeley v. Dimery (1829) 109 E.R. 393 : 10 B. & C 113. But where a larger number of persons are in occupation of the premises who all claim title under the same lessor, the rule is relaxed and the plaintiff is allowed merely to make that lessor defendant: Minet v. Johnson (1890) 63 L.T. 507 and Green v. Herring (1905) 1 K.B. 152 : 74 L.J. K.B. 62. It being provided by Order 16, Rule 9, 'Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested'. There is no sentence here at all that it is neither necessary nor proper to join any person who is merely in receipt of the rents and profits of the land. On the other hand the passage quoted above shows that where there are a large number of persons in occupation all claiming title under the same lessor the plaintiff is allowed merely to make that lessor defendant. If therefore there is any such remark in the 7th Edition it cannot refer to the landlord but must refer to some person who is merely in receipt of the rents and profits of the land by some arrangement with the landlord. Dicey on Parties to an Action, Rule 113 (p. 495) says:
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.
10. The learned author proceeds:
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., through 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. A, for example, brings an action of ejectment against X and Y who are in the occupation of land as tenants of Z from week to week; Z is not made a party to the action, the tenants let judgment go by default, and A obtains possession. This is obviously an injury to Z, for he must, in order to re-gain possession, either enter and then turn A out, or, in his turn, bring an action of ejectment against A. But the injury may extend far beyond this, and Z may be deprived of his property, for A may have no title and therefore Z may be able if sued to resist his claim.
11. This rule of Dicey is quoted in Poonit Singh v. Kamal Singh : AIR1924Pat172 as if it supported the decision there but, with respect, in my opinion it is opposed to it for I take it that if a person has a right to defend, it is the same thing as saying that he is a necessary defendant, for it is not within the discretion of the Court to say whether it will add him or not.
12. It is then argued that this Court cannot under Section 99 of the Civil Procedure Code interfere with a decree on account of the non-joinder of a party. In this connection Yakkanath Eacharaunni Valia Kaimal v. Manakkat Vasunni Elaya Kaimal I.L.R.(1909) 33 Mad. 436 : 20 M.L.J. 344 is quoted to show that for purposes of Section 99 misjoinder includes non-joinder. The remark is obiter and the case on which it relies, Mahabala Bhatta v. Kunhanna Bhatta : (1898)8MLJ139 was under the old Code. Section 578 of the old Code corresponding to Section 99 of the present ran as follows:
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal, on account of any error, defect or irregularity, whether in the decision or in any order passed in the suit, or otherwise, not affecting the merits of the case or the jurisdiction of the Court.
13. The words 'misjoinder of parties or causes of action' were introduced in the Code of 1908; so Mahabala Bhatta v. Kunhanna Bhatta : (1898)8MLJ139 is no authority as to the meaning of the section as it now stands. This obiter remark in Yakkanath Eacharaunni Valia Kaimal v. Manakkat Vasunni Elaya Kaimal I.L.R.(1909) 33 Mad. 436 : 20 M.L.J. 344 has been noticed in Mohanavelu Mudaliar v. Annamalai Mudaliar (1922) 44 M.L.J. 249 where Sir Walter Schwabe, C.J., says:
Under Section 99 of the Code, of Civil Procedure no decree is to be reversed on account of any misjoinder of parties not affecting the merits of the case or of the jurisdiction of the Court, and it has been held, how far correctly I am not prepared at present to say, that 'misjoinder' in that section includes non-joinder.
14. In Amichand Nagindas & Co. v. Raoji Bhai Moti Bhai Patel (1929) 58 M.L.J. 613 a Bench of this Court held that Section 99 would not prevent the Court interfering in appeal even in a case of misjoinder if the appeal was that the Lower Court acted without jurisdiction.
15. I must therefore hold 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.
16. I cannot help observing however that there are several defects in the lower appellate Court's judgment which would probably have by themselves justified the setting aside of its decree. I have noted above the statement that there is no proof of the contention of the defendant that the site is part of the Municipal lane; and that if by this it is meant there is no evidence it is a complete mis-statement of fact. The Municipal authorities refused to produce the survey plan and in connection with this the Subordinate Judge observes:
Unless the plaintiff or his predecessor had raised a dispute at the time of the Municipal survey and the point had been found against him, the decision of the Survey authorities cannot be res judicata against the plaintiff.
17. That is entirely wrong. The survey was made under the Survey and Boundaries Act. Decisions under that Act if not challenged become res judicata. Finally there is the remark:
It is alleged for the defendant (appellant) that when opening a gate into C the plaintiff took the Municipality's permission. But this was necessary under the Act even if the site C belonged to plaintiff.
18. Section 196 of the District Municipalities Act only requires permission to the opening of a gate into a public street. Therefore if plaintiff had really taken the Municipality's permission to open a gate into the site C it would have been almost conclusive against his contention that C was his private property. The mistake in law here made by the Subordinate Judge is so grave that it might reasonably be said that it affects his whole decision. I have looked at the actual evidence on the point. Apparently what the plaintiff said was that he applied for permission from the Municipality to open a doorway. It was not elicited exactly where this doorway was. Though one cannot be absolutely certain, it is not easy to see where else it could have been than at the point A (1) opening into the site C. In any case the learned Subordinate Judge clearly took it as meaning that the gate opened into the site C, and if so, the admission was fatal to the plaintiff's case.
19. The appeal is allowed with costs throughout and the suit will be dismissed.