Telangana High Court

Mauther Unnisa Begum vs Cheruku Narsing Rao on 31 October, 2023

Bench: K. Sarath

      THE HONOURABLE SRI JUSTICE K.SARATH

                      C.R.P.No.1925 of 2022

ORDER:

Heard learned counsel for the petitioner/plaintiff and

learned counsel for the respondent No.1/proposed

defendant No.2.

2. This Civil Revision Petition is filed against the order

dated 24.06.2022 in I.A.No.345 of 2022 in O.S.No.100 of

2020 on the file of the Principal Junior Civil Judge at

Adilabad, wherein the petition filed under Order I

Rule 10(2)(4) C.P.C. to add the proposed party as defendant

No.2 in the suit was allowed.

3. The petitioner herein filed suit in O.S.No.100 of 2020

for recovery of possession of suit schedule premises and for

recovery of rent amount and for mesne profits against the

respondent No.2/defendant. The respondent No.1 herein

filed I.A.No.345 of 2022 in O.S.No.100 of 2020 to implead

him as defendant No.2 in the suit stating that his father

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gave the suit schedule property to the father of the

respondent No.2/defendant on lease in the year ,1989 and

after the death of his father in the year, 1997 he leased out

the same to the father of the defendant and after the death

of the father of the defendant in the year, 1998 the

defendant has been paying rent from time to time regularly

to him and as such the defendant is his tenant and there is

no relationship between the plaintiff and the defendant as

landlord and tenant. The plaintiff and her husband had

sold the suit schedule premises to the father of respondent

No.1 in the year, 1973 and delivered the possession. For

execution of the registered sale deed, the stamps valued at

Rs.2,000/- were purchased by the father of respondent

No.1, but due to the death of the husband of plaintiff, the

execution of registered sale deed was post phoned even

though possession was delivered after payment of the sale

price of Rs.25,000/- to the plaintiff. As the respondent No.1

is the owner of suit schedule property, he is necessary

party to the suit and hence, he filed the implead petition.

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4. The Court below after hearing both sides and after

considering the material on record allowed the said I.A,

holding that as the proposed party is denying the title of the

plaintiff over the suit schedule property, it is just and

reasonable to allow the petition for proper adjudication of

the matter and unless the proposed party is not brought on

record, the suit cannot be adjudicated on merits and no

prejudice would be caused to the other side. Aggrieved by

the same, the petitioner/plaintiff filed the present revision

petition.

5. Learned counsel for the petitioner/plaintiff submits

that the plaintiff is owner of the suit schedule premises and

the defendant is her tenant and either the respondent

No.1/proposed party or his father are not the owners of the

suit schedule premises and the rent deed submitted by the

respondent No.1 is created and false one. The stamp duty

as alleged by the proposed party is not sufficient for

registration of the sale deed. The Court below failed to

appreciate the fact that the proposed party has not filed any

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document with regard to the sale transaction and receipt of

sale amount. He submits that the Court below failed to

appreciate that the suit is filed for eviction and recovery of

possession with recovery of rent and the claim of the

respondent No.1 is an independent and not related to suit

claim and as such he is not a necessary party to the suit

and requested to allow the revision petition.

6. Learned counsel for the petitioner has relied on the

following judgment;

1. Sudhamayee Pattnaik and others vs. Bibhu Prasad

Sahoo and others 1

7. Learned counsel for the respondent No.1/proposed

party submits that there is no relationship of landlord and

tenant between the plaintiff and the defendant as the

plaintiff never leased out the suit schedule premises to the

defendant. He submits that the plaintiff and her husband

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have sold the suit schedule premises to the father of

respondent No.1/proposed party in the year 1973 and

possession was also delivered and therefore, he is necessary

party to the suit and the Court below has rightly allowed

the petition and requested to dismiss the revision petition.

8. Learned counsel for the respondent No.1 has relied on

the following judgments;

1. Prakash Chand vs. Arjun Das and another 2.

          2.     Sumtibai        and     others    vs.   Paras   Finance

Company 3.

9. After hearing both sides and perusal of the material

on record, this Court is of the considered view that the

petitioner herein filed suit against the respondent

No.2/defendant for recovery of premises, arrears of rent of

Rs.3,12,000/- and for mesne profits in respect of the suit

schedule premises. The respondent No.2 herein filed

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(2007) 10 SCC 82

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I.A.No.345 of 2021 in O.S.No.100 of 2020 stating that there

is no relationship between the plaintiff and the defendant

since the suit schedule property was given to the defendant

by the respondent No.1. After receipt of notice from the

Court, the respondent No.2/defendant approached the

respondent No.1 and informed about filing of the suit

against him by the petitioner/plaintiff. The plaintiff and

her husband sold the suit schedule property to the father of

respondent No.2 in the year, 1973 and delivered the

possession, but due to the death of the husband of

petitioner, the execution of registered sale deed was post

phoned even though possession was delivered and sale

price of Rs.25,000/- was already paid to the petitioner and

her husband and requested to allow the implead petition as

he is a necessary party to the suit.

10. The contention of the petitioner/plaintiff is that the

Court below has failed to appreciate the scope of relief in a

suit for eviction and recovery of possession with recovery of

rent and mesne profits and the claim of the respondent

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No.1/proposed party is independent and disputing the title

of petitioner in the eviction suit and not related to the suit

claim and in collusion with the respondent No.2/defendant,

he filed the implead petition claiming ownership basing on

the alleged agreement and therefore, the Court below ought

to have seen that the presence of the respondent No.1 is

not necessary to adjudicate the matter nor he can be

considered as proper party.

11. In Sudhamayee Pattnaik's case (cited 1 supra), the

Hon'ble Supreme Court held as under:

At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs.

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The aforesaid judgment relied on by the learned

Counsel for the petitioner is squarely apply to the facts of

the present case.

12. In Prakash Chand's case (cited 2 supra), the Hon'ble

Supreme Court held as under;

'The Court below after hearing objection on the impleadment application held that the trust/impleader third party is the necessary party to be impleaded in the case. Relying upon the decisions rendered in Narendra Nath Srivastava v. Prescribed Authority, Lucknow (1992(2) ARC 236) and Laxmi Narain v. District Judge, Fatehpur (1991(2) ARC 538) and considering the provisions of Sections 21(1)(a) and 22 of the U.P.Rent Control Act, the Court below held that it is necessary for disposal of impleadment application that as to who is the landlord and owner of the property in suit since the controversy is a matter of adjudication by the regular Court. It may also be noted here that the impleader third party i.e., trust is not getting its right adjudicated in the release application filed by the petitioner as owner of the property in dispute rather, it has sought to be impleaded as a party as the trust is being illegally ousted by the tenants as alleged landlords who claim themselves to be the owners of the property in suit. When after the tenants do not pay the rent and recognize some other person as landlord for ousting the real landlords from the scene, the rights of the third party who claim to be real landlords and owners would be affected. Even though the rights of the impleader third party as owner may not be adjudicated in a suit for rent and eviction but it cannot be said that its impleadment is unnecessary for just and equitable decision in the case particularly when it may appear that the tenant is colluding

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with other persons whose sale deeds have been cancelled recognizing them as landlords to collusively oust the real landlord. This being the position the Court below has rightly concluded that impleader third party is a necessary party'.

The said judgment relied on by the learned Counsel

for the respondent No.1 does not apply to the facts of the

present case and it cannot be taken into account in view of

the recent judgments of the Hon'ble Supreme Court and

Allahabad High Court.

13. In Shahnaj Begum vs. Taj Mohammad and

another 4, the High Court of Allahabad held as under;

11. In this context an application for impleadment by a third party asserting right of owner-ship in the suit premises, is liable to be rejected for the reason that such person would neither be a necessary nor proper party to eviction proceedings, and in his absence the suit can be decreed or dismissed on merits. The questions of title or owner-ship can neither be decided nor can be made subject matter of determination in eviction proceedings.

13. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question which arose in this appeal. These principles are mentioned infra:

11.1. First, in an eviction suit filed by the plaintiff (landlord) against the defendant (tenant) under the State Rent Act, the landlord and tenant are the only necessary parties. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.

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11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff landlord has sought defendant tenant's eviction under the Rent Act exists. When these two things are proved, the eviction suit succeeds.

11.3. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See Ranbir Singh v. Asharfi Lal [Ranbir Singh v. Asharfi Lal, (1995) 6 SCC 580] .) 11.4. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit.(See Ruma Chakrabortyv. Sudha Rani Banerjee [Ruma Chakraborty v. Sudha Rani Banerjee, (2005) 8 SCC 140] .)

11.5. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (See Udit Narain Singh Malpaharia v. Board of Revenue[Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786] .)

11.6. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant.(See KasthuriRadhakrishnan v. M.Chinniyan[KasthuriRadhak rishnan v.M. Chinniyan, (2016) 3 SCC 296 : (2016) 2 SCC (Civ) 331]

15. In our considered opinion, Respondent 1, who claims to be the co-sharer or/and co-owner with the plaintiff-appellants herein of the suit property is neither a necessary and nor a proper party in the eviction suit of the appellants against Respondents 2 to 5. In other

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words, such eviction suit can be decreed or dismissed on merits even without the impleadment of Respondent 1.

14. The Hon'ble Supreme Court in Richand Lee v. Girish

Soni 5, held as under:

14. It has then been argued that, if a third party who raises aquestion of title is not allowed to intervene, the possibility of persons without title filing collusive suits for eviction against tenants might arise. In our view, such a situation is rare and even if there is one,there are adequate remedies in the civil law to seek declarations that proceedings in another court or tribunal are collusive. In fact, thegreater advantage in not allowing third parties to intervene and raise questions of title, is that unscrupulous tenants cannot any longer get collusive applications filed by the third parties claiming title so as to protract the rent control proceedings. The advantage of denying to third parties the right to raise questions of title, in our view, far outweighs the doubtful advantage of permitting such persons to get impleaded.

15. We would, however, like to state that it is not as if Order 1, Rule 10 C.P.C. would never be attracted to proceedings before the Rent Controller. A legatee or a purchaser or other person or a sub-tenant or any other person can always get impleaded so long as he is not raising any dispute of title or so long as his title is not disputed.

Similarly, if the landlord and the tenant agree for the third party being impleaded and if no question of title needs to be decide, the application under Order 1, Rule 10 C.P.C. can be allowed. It is onlywhere a disputed question of title is raised or has to be decided at the instance of the third party that it can be said that the scheme of the Act does not permit such impleading."

15. The Court below observed in the impugned order that

the respondent No.1 has failed to file any document along

with the I.A. about the ownership of the suit schedule

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property, but, allowed the implead petition and the same is

contrary to law. In view of the settled law with regard to

suits filed for eviction of tenants, the third parties cannot

be impleaded and as the respondent No.1 is denying the

title and ownership of the petitioner/plaintiff, he can file

suit for declaration in appropriate proceedings as per law

and he cannot be impleaded in the present suit. Therefore,