ANITA JOSHI Vs. CHHATI YADAV & ORS.

JUDGEMENT

(1.) LEARNED counsel for respondent No. 2 accepts notice. With the consent of counsel for the parties, the matter has been heard for final disposal. This petition under Article 227 of the Constitution assails order dated 5th March 2012 whereby application under Order 1 Rule 10 CPC filed by respondent No. 1 Mr. Chhati Yadav, was allowed. The respondent had filed a suit for possession and recovery of rent against respondent No. 2 Asha Yadav alleging the latter to be her tenant in respect of the suit premises @ Rs.2500/ - per month since the year 2002 by virtue of lease deed. Asha Yadav is the wife of respondent No. 1/applicant Chhati Yadav. Applicant Chhati Yadav filed application under Order 1 Rule 10 CPC for impleading in the suit, stating himself to be in possession of the suit premises and, further that he has purchased the suit premises from the petitioner i.e. the sister of his wife, vide agreement to sell dated 11.09.2003 and that he is in possession of the suit premises in his independent rights and, not as a tenant through his wife Asha Yadav. The said application was allowed by the Senior Civil Judge, vide the impugned order, which is under challenge in this petition.

(2.) I have heard the learned counsel for the petitioner/plaintiff as also respondent No. 1/applicant and respondent No. 2 Ms Asha Yadav and on going through the records, I do not see respondent No. 1/applicant Chhati Yadav to be anyway necessary or proper party in the instant suit, that was filed by Anita Joshi against her sister Asha Yadav, seeking possession and recovery of rent. This is settled law that in a suit for possession against a tenant, a claim of third person to be added as defendant on the ground that he had the title to the suit premises having purchased the same, was not maintainable. He could not be added as a defendant in such a suit, as that would change the entire nature of the suit, and further that no relief has been claimed against him by the landlord/plaintiff. The question of title of third person predicated on the basis of agreement to sell with the owner cannot be investigated in the case filed by the owner against tenant. If such a person is arrayed as a defendant, there will be rival claims regarding ownership of the suit premises between the owner and the third person and that cannot be given effect in the suit filed by the owner against the tenant. In the case of J.J. Lal Pvt. Ltd. & Others Vs. M.R. Murali and another : AIR 2002 SC 1061, the Supreme Court held that impleadment of any of the applicant in such a case would change the complexion of the litigation and raise such controversy as would be beyond the scope of the litigation. The presence of the applicant, thus, is neither necessary nor proper to enable the Court to factually and completely adjudicate upon and settle the question in the instant suit. Further, any decision in these proceedings would govern and bind the parties therein and the respondent No. 1/applicant will have his remedy to establish his own claim or title whatever, he may have in any other independent proceedings. The impugned order suffers from material illegality and is not sustainable as per law and is, thus, hereby set aside. The petition stands disposed of