C SURYA RAO Vs. V VIRRAJU

JUDGEMENT

(1.) The plaintiffs filed a suit tor declaration and possession. The defendants are the tenants. Defendants 3 and 4 particularly claimed that they are tenants and they are entitled for the protection under the Tenancy Act. Defendants 3 and 4 in their turn filed O.S. No. 132 of 1982 seeking permanent injunction against the present first plaintiff and first defendant and others claiming themselves as cultivating tenants. During the pendency of the two suits, the third defendant in the suit, who is the plaintiff in O.S. No. 132 of 1982 died. His sons, who are respondents 6 and 7 nerein were brought oa record as the legal representatives of the deceased 3rd defendant in the suit. The present I.A. No 773 of 1984 in O.S. No, 77 of 1982 was filed to implead respondents 5 to 10 as the legal representatives of the deceased third defendant. Respondents 6 and 7 claimed that the third defendant was a cultivating tenant and so they are entitled to the tenancy rights as they are his nearest descendants as per Section 10 of the Tenancy Act and they are only to be addeu das the legal representatives of the third defendants as the daughters shown m it are not necessary parties and they are not the nearest lineal descendants as per section 10 of the Tenancy Act as such they cannot be added as defendants.

(2.) The trial Court by taking into consideration that the respondents 6 and 7 were along to be brought on reeord as the lineal descendants of the third defendant found that the other respondents did not claim any interest in the property and they adopt the contention of the respondents 4,6 and 7 and therefore, respondents 6 and 7 alone can be added as the legal represent tatives of the deceased third respondent.

(3.) Aggrieved by that order, the plaintiffs filed the present petition. The petitioners contention is that the daughters and sons are also the legitimate lineal descendants by blood to the deceased third defendant and so all the respondents must be brought on record as defendants. It is also contended that though the, claim of the plaintiff's is for declaration and possession, in view of the contention raised by the defendants that they are the cultivating tenants that all the lineal descendants must be brought on record. One thing we should not forget is that the claim of the plaintiffs is there is no tenancy. The claim of the defendants 3 and 4 is that they are the statutory tenants. It is a matter that has to be decided in the suit and also in the other suit i.e., O.S. No. 135 of 1982. Both the suits are being clubed together for joint trial. Except the respondents 6 and 7 i.e., the sons of the third defendant, others expressed that they have no interest in the said property. That means that they are not claiming any rights that accrue to them by virtue of the rights conferred under the Tenancy Act or under the general law. When they claimed that they have no interest, it must be presumed that they are estopped to claim any right in future. On the other hand, they claimed that respondents 6 and 7 alone are the persons that are entitled to be the cultivating tenants after the death of the third defendant and in support of that they pleaded that respondents 6 and 7, who are the sons of the third defendant, were alone brought on record as the legal representatives of the first plaintiff in the other suit. From the nature of the pleadings, it is clear that the daughters and wife of the third defendant supported the inclusion of respondents 6 and 7 only as the persons that are entitled for the right, title and interest claimed by the third defendant in the suit as well as the first plaintiff in the other suit. In this context the view taken by the lower Courts is contested. The trial court took the view that the sons i.e., respondents 6 and 7 claimed themselves as sons and lineal descendants of the third defendants and it is just and proper to bring them alone on record as the legal representatives of the deceased their defendant. It is also held that adding of the legal representatives in the place of the third defendant, who claimed to be the tenant, has to be limited to the extent of adding his lineal desen- dants in his place to continue the litigation. That means virtually the lower Court has rejected the claim of the plaintiff that the meaning of 'lineal descendants' includes females also. Perhaps the learned Judge might have been led away by the contention that has been made in the counter that respondents 6and 7 alone are the nearest lineal descendants by blood and they alone have to be added as the legal descendants by blood and they alone have to be added as the legal representatives of the third defendant and that the daughters are not the nearest lineal descendants by blood as per section 10 of the Tenancy Act.