Punjab-Haryana High Court
Jaswinder Singh And Anr. vs Lakhbir Singh Walia And Anr. on 30 November, 1999
Equivalent citations: (2000)124PLR556
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been preferred by Jaswinder Singh and another (hereinafter described as "the petitioner") directed against the order passed by the learned Rent Controller, Ludhiana, dated 27.8.1994. By virtue of the impugned order, the learned Rent Controller dismissed the application preferred by the petitioners under Order 1 Rule 10 of the Code of Civil Procedure (for short "the Code").
2. The relevant facts are that respondent No. 1 Lakhbir Singh has filed a petition for eviction against Pritam Singh, respondent No. 2, in the revision petition. During the pendency of that eviction petition, petitioners preferred an application under Order 1 Rule 10 of the Code for them to be arrayed as a party. It was asserted that the property in dispute was originally owned by Gurbachan Singh s/o Chanda Singh. Pritam Singh and Manmohan Singh were his tenants in two different portions. After the death of Gurbachan Singh, his heirs Lakhbir Singh, Balbir Singh and Kartar Kaur became the owners of the said property. Lakhbir Singh filed ejectment petition. An order of eviction was passed against Manmohan Singh. He took possession of that portion. Sometime back, a family partition, took place amongst Lakhbir Singh, Balbir Singh and Smt. Kartar Kaur. Smt. Kartar Kaur relinquished her 1/3rd share in favour of her two sons, namely, Balbir Singh and Lakhbir Singh. In this process, Balbir Singh and Lakbir Singh became owners of the property to the extent of 1/2 share. Lakbir Singh was already in exclusive possession of 1/2 of the inherited property. Balbir Singh sold his 1/2 share to the petitioners. In the sale deed, it was mentioned that Pritam Singh tenant was in occupation of the property. In this process, it was asserted that inter se Lakhbir Singh and Pritam Singh the relationship of landlord and tenant had come to an end. Since valuable rights of the petitioners are involved, they prayed that they should be arrayed as a party. In fact, it was contended that the eviction petition had become infructuous.
3. In the reply filed, respondent No. 1 contested the application. It was asserted that the application had been filed at the instance of Pritam Singh who is the father of the petitioners. It was admitted that Gurbachan Singh was the owner of the property and that on his death, his two sons, namely Balbir Singh and Lakhbir Singh inherited the property. It was denied that there was any oral family partition as alleged by the petitioners. It was also denied that Kartar Kaur had relinquished her share. It was denied that the petitioners in any case were the necessary party.
4. The learned Rent Controller took note of the respective contentions and held that the petitioners could not be arrayed as a party and accordingly the application was dismissed.
5. Aggrieved by the same, present revision petition has been filed.
6. The learned counsel for the petitioners highlighted the fact that respondent No. 1 is only the owner of the property to the extent of 1/2 share. He has already filed a petition for eviction and obtained possession of 1/2 share of the property. The petitioners are owners to the extent of 1/2 portion. The eviction petition, therefore, against respondent No.2 is not maintainable.
7. Order 1 Rule 10 of the Code reads as under:-
"10(2) Court may strike 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 as plaintiff of 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."
This provision is its stark brevity points out that the Court on its own motion or at the instance of a particular person implead the person whose presence is necessary to adjudicate upon the rights of the parties. It is necessary that the presence of that person should be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In other words, if the presence of a particular person is not necessary for adjudicating the suit of eviction petition, he need not be impleaded as a party.
8. In eviction petition, necessary parties are always the landlord and the tenant. It is a dispute inter se them. Ordinarily, a third person, who is neither a landlord or a tenant, would not be impleaded as a party. Only in rare cases where the Court may found that the presence of a third person is necessary to effectually decide the rights of the parties, an exception to the rule can be made.
9. The learned counsel for the petitioners relied upon the decision of Calcutta High Court in the case of Smt. Kalyani Sen v. Sh. Enyetullah, 1971 Recent Control Reporter, 612. In the cited case, a petition for eviction had been filed on the ground of personal necessity. One of the petitioners had sold his share. The purchaser was added as a respondent. The sole question before the Court was as to whether the order of eviction could be passed in changed circumstances or not.
10. The question in controversy in the present case is totally different. Herein, the question to be adjudicated upon is as to whether the petitioners should be arrayed as a party or not. It is entirely a dispute between respondent Nos. 1 and 2 as to whether there would be a relationship of landlord and tenant between them or not. Therefore, the said contention of the learned counsel must fail. The cited decision will not come to the rescue of the petitioners.
11. Reliance was further placed on the decision of the Orissa High Court in the case of South Eastern Roadways v. Satyanarayan and Ors., 1982(2) Rent Control Reporter 362. Herein, application for eviction was filed by one of the co-sharers. The other co-sharers were opposing the eviction of the tenant. The application for eviction was held to be not maintainable. Orissa High Court held as under:-
"......The law is clear that in the case of a trespasser, a co-sharer is entitled to evict such trespasser from the entire property as eviction would ensure to the benefit of all the landlords. That however, would not be the position when the claim of eviction is against a tenant who has interest in the property. Where the co-sharer landlords oppose eviction, the position would be very much against the maintainability of the application by one co-sharer. Admittedly, until there is a partition and it has been found as a fact that there has been no partition of the premises, each co-owner would be entitled to possess every part of the property. That is a necessary incidence of co-ownership. Therefore, the Controller cannot grant eviction from any definite part of the property by saying that it belonged to the co-owner asking for eviction....."
12. As noted above, the controversy in the present petition is as to whether firstly the petitioners should be arrayed as a party or not. If the presence of the petitioners is not necessary to adjudicate upon the rights of the parties, in that event, the application must be taken to have rightly been dismissed. The question as to whether the petition for eviction filed by respondent No. 1 is maintainable or not can only be adjudicated upon by the learned Rent Controller when such a plea, if any, is offered by respondent
13. Reliance further was placed on the decision of Delhi High Court in the case of Ujagar Singh Kakkar v. Chander Mohan and Ors., 1988(1) Rent Control Reporter 303, Herein also, the Delhi High Court was basically concerned with the question as to what is the effect of non-joinder of necessary parties in an ejectment application. The ejectment application was filed by only one legal heir of the deceased landlord without being authorised by the other heirs. It was held that the petition suffers from non-joinder of necessary parties. For the reasons already recorded, this question, indeed, is not relevant to be gone into at this stage.
14. In fact, the law is well settled. Eviction petition should ordinarily be not allowed to be converted into a title dispute between other co-owners, if any. This Court had taken note of this fact in the case of Bachna Ram v. Nar Singh Dass and Ors., A.I.R. 1982 Punjab and Haryana 281. Herein, an eviction petition was filed. During the pendency of the petition, the suit property was sold. The vendees were seeking permission to be impleaded as petitioners. It was held that when the ground for eviction is not affected by change in ownership, the new purchaser can be impleaded as a party. Similarly, in the case of Smt. Krishna and Anr. v. Smt. Shanti Devi and Anr., (1991-1)99 Punjab Law Reporter 374, this Court concluded that the Rent Controller is not to decide and determine the question of title between the parties. The limited claim to be gone is as to if there is a relationship of landlord and tenant between the parties or not.
15. Similarly, in the case of Anil Kumar v. Chaudhary Ram and Ors., (1994-1)106 Punjab Law Reporter 507, same controversy had again been gone into. An application was filed for addition of applicants as a party alleging that they had purchased a share in the property. This court held as under:-
".......Even otherwise, one co-owner can maintain a petition for ejectment against a tenant. If there is a dispute about the title between the parties, it cannot be settled in a rent petition but has to be settled in a regular suit which may be filed by one or the other party. It is thus, open to the applicants to take any other step to establish their right, title or interest in the premises in dispute after impleading proper parties, who claim interest adverse to them, as in the rent petition the only dispute at the most would be which could be and that to whether there is a relationship of landlord and tenant between Anil Kumar son of Banarsi Dass and Chaudhary Ram. If this relationship is held to be there, petitioner Anil Kumar will succeed or fail in terms of the pleadings of the parties. If it is held that there is no relationship of landlord and tenant between the parties, the rent petition is bound to fail on that ground. The rights of the applicant will in no way be affected by adjudication of the rent petition between Anil Kumar and Chaudhary Ram even if they are not impleaded as parties. As noticed above, the applicants can take appropriate proceedings where their claim can be adjudicated in a more effective manner. Thus, in my view, by seeking impleadment as parties, the main rent petition cannot be permitted to be converted into a petition for determination of title. No useful purpose would be served if the applicant are allowed to be impleaded as parties in the circumstances as noticed above."
16. Identical is the position herein. Even if the petitioners have any share in the property, they can take necessary recourse under the law but by no stretch of imagination it can be taken that they can convert the eviction petition into a title suit between them and respondent No. 1. So far as pleas of respondent No. 2 are concerned, the learned Rent Controller would be competent to go into the same but it does not imply that the petitioners would become necessary parties. In these circumstances, there is no ground to interfere in the discretion exercised by the leaned Rent Controller. The presence of the petitioners is not necessary to adjudicate upon the rights of the parties in the eviction petition.
17. For these reasons, the revision petition being without merit must fail and is accordingly dismissed.