MOHINDER KAUR Vs. JAI GOBINDA ENTERPRISES

JUDGEMENT

(1.) IN Civil Suit No. 361 of 5.11.1999 titled M/s. Jai Gobinda Enterprises, Mandi Gobindgarh, Tehsil Amloh, District Fathegarh Sahib through its proprietor Smt. Sunita Rani wife of Sh. Chaman Lal resident of Mandi Gobindgarh and Smt. Sunita Rani wife of Sh. Chaman Lal sole proprietor of M/s. Jai Gobinda Enterprises, Mandi Gobindgarh, Tehsil Amloh, District Fathegarh Sahib v. Balwinder Singh and others, an application moved by Mohinder Kaur and Gurdip Singh son of Malkiat Singh under Order 1 Rule 10 CPC was dismissed by Additional Civil Judge (Senior Division), Amloh vide order dated 18.10.2000. It is this order, which they have called in question through this revision. Facts : M/s. Jai Gobinda Enterprises, Mandi Gobindgarh, Teh. Amloh through its proprietor Smt. Sunita Rani and Smt. Sunita Rani filed suit for permanent injunction against Balwinder Singh son of Malkiat Singh and others restraining them and their employees, servants or any other person authorised by them from dispossessing them from the premises approximately 8 biswas situated in the street opposite Central Bank of India, street now known as Shakti Nagar, Mandi Gobindgarh on the allegations that they are tenants and are entitled to protect their possession against unlawful invasion of it. Smt. Mohinder Kaur and Gurdip Singh wanted their intrusion into the suit saying that land in dispute is in their ownership and possession. They are continuing in possession and they have already filed suit for permanent injunction against the respondent plaintiff in which status quo has been ordered to be maintained. Local Commission appointed by the trial Court for ascertaining the possession at the spot has also reported that they are in possession and the boundary wall was constructed around the boundary of the land in dispute since long by them and some construction has also been made by them. Land was partitioned by the co-owners in this Khewat. Possession of the plots was given to each co-owner and the same was occupied by them as co-owners. In the municipal records, the property is entered in the name of Baldev Kaur who was mother of Gurdip Singh. They are paying house tax to Municipal Committee, Gobindgarh. After the death of Baldev Kaur, Gurdip Singh came in possession of the share of Baldev Kaur. It was stated by them in this application that this presence was highly necessarily for the proper adjudication of the matter and their absence would prejudice their right so far as possession is concerned. Smt. Mohinder Kaur and Gurdip Singh have also filed suit (Civil Suit No. 388 of 26.11.1999) against Sunita Rani proprietor of M/s. Jai Gobinda Enterprises, Mandi Gobindgarh, Tehsil Amloh, Sandeep Kumar Goyal, Kirandeep Goyal, Chaman Lal Goyal, Gurdial Kaur wife of Surjit Singh and Balwinder Singh son of Malkiat Singh for permanent injunction restraining them from interfering in their possession of property, bounded as East : Godown Kashmiri Lal and Sham Sunder, 581, South : Godown Mohinder Kaur 58'-6" West : Street 70'-2", North : House of Surinder Kumar 58' comprised in Khasra No. 1496/1147/142 min within the revenue limits of village Kuka Majra, Tehsil Amloh bearing property No. 13/SN in municipal record situated in municipal limits at Mandi Gobindgarh, Tehsil Amloh by force or by illegal means and restraining the defendants not to dispossess the plaintiffs from the above mentioned property except in due course of law. It was alleged in the plaint that they are owners of this property. Long ago they constructed boundary wall upto the height of 8'. The gate of the property is locked and opened by them. Gurdial Kaur and Balwinder Singh were co-owners in the Khewat and after partition, the property in dispute came to the share of the plaintiffs i.e. Mohinder Kaur and Gurdip Singh. Property is situated within the municipal limits and was in the name of mother of Gurdip Singh who expired about 15 years ago. House tax is being paid by the plaintiffs. Defendants 1 to 4 Sunita Rani and others in collusion with Gurdial Kaur and Balwinder Singh are threatening to interfere with their possession. In the written statement filed by Sunita Rani and others defendants 1 and 4, it was denied that the property in suit is in possession of Smt. Mohinder Kaur etc. as owners. Rather, they i.e. Sunita Rani etc. are in possession of the property as tenants since the year 1979. It was denied that the land comprised in Khewat was ever partitioned. It was denied that possession was ever taken over by the plaintiffs. It was denied that after the death of Baldev Kaur, her son came in possession of the suit property. There are thus two suits i.e. one filed by M/s. Jai Gobinda Enterprises, Mandi Gobindgarh Tehsil Amloh and Sunita Rani against Balwinder Singh son of Malkiat Singh and others in which they have claimed that they are in possession as tenants and they should not be interfered with in their possession by Balwinder Singh etc. and there is another suit filed by Mohinder Kaur and Gurdip Singh against Sunita Rani and others in which they have claimed to be in possession and restraint on Sunita Rani etc. from interfering with their possession. As to whether M/s. Jai Gobinda Enterprises, Mandi Gobindgarh Tehsil Amloh is in possession or Mohinder Kaur and Gurdip Singh are in possession, this question has to be decided in the presence of each other. It was property owned for co-sharers. It may also have to be determined whether this property was partitioned. If so, whether this property came to the share of Mohinder Kaur and Gurdip Singh or this property is in possession of M/s. Jai Gobinda Enterprises, Mandi Gobindgarh, Tehsil Amloh as tenants inducted by Gurdial Kaur and Balwinder Singh or they are tenants inducted by Mohinder Kaur, Gurdip Singh, Gurdial Kaur and Balwinder Singh.

(2.) LEARNED counsel for the petitioner submitted that Mohinder Kaur and Gurdip Singh should have been allowed to be impleaded as party as their presence is absolute necessary for determining the question of possession i.e. whether they are in possession or whether M/s. Jai Gobinda Enterprise, Mandi Gobindgarh, Tehsil Amloh is in possession. Learned counsel for the petitioner submitted that in allowing or disallowing an application under Order 1 Rule 10 CPC what is to be seen is whether the addition of a new party would be consistent with the scope of the inquiry as necessitated in the pending suit and whether in the absence of such a party, it would not be possible to completely and effectively dispose of the controversy in the pending suit. What the court ought to see is whether there is anything in the suit which cannot be determined owning to his absence or whether there would be prejudice by his not being made a party. In support of this submission, he drew my attention to Kaka Singh v. Rohi Singh, AIR 1978 Punjab and Haryana 30 where it was held as follows :-

(3.) LEARNED counsel for the respondent, on the other hand, submitted that in this suit M/s. Jai Gobinda Enterprises, Mandi Gobindgarh, Tehsil Amloh has claimed merely that they are in possession as tenants and that Balwinder Singh etc. should not interfere with their possession as tenant and in such a suit, a third person claiming to be owner or co-owner cannot be permitted to be added as a party. In suit between landlord and tenant, only their rights are to be determined on the basis of contract of tenancy. Ownership to the premises cannot be the subject-matter of tenancy. In support of this submission, he drew my attention to Omparkash v. Gajanand and others, 2000(1) Civil Court Cases 213. It was also submitted that this is no ground to implead Mohinder Kaur and Gurdip Singh as party to this suit merely because the decision of possession might affect them to some extent. In support of this submission, he drew my attention to Dalvir Singh and others v. Gurdarshan Singh and others, 2001(2) RCR(Civil) 150 (P&H) : 2000(3) Punjab Law Reporter 515.