PT MOTI RAM Vs. L DURGA DAS

JUDGEMENT

(1.) THIS revision replication is directed against an order of the Subordinate Judge, Rajouri, by which on the application of one Mst Saraswati she was impleaded as a defendant in a rent suit between Moti Ram plaintiff applicant and Durga Das defendant non -applicant who had executed a rent deed in favour of the plaintiff in respect of a shop which had been leased out to him by the plaintiff.

(2.) WE have heard counsel for the parties. The learned counsel for the applicant has argued that in the rent suit instituted by the plaintiff against Durga Das, who had executed a rent deed of the shop in favour of the plaintiff Mst. Saraswati, who claimed to be owner of the property, was not a necessary party and her inclusion amongst the defendants would convert a simple rent suit into a suit for title. He has also urged that if Mst. Saraswati claims the rented property as her own she can institute a regular suit of title against the plaintiff. It was further submitted that by seeking to be included as a defendant in this case Mst. Saraswati was in fact trying: to evade the payment of court -fee. The learned counsel for the applicant also drew our attention to a judgment of mine in Durga Nag Trust v. Wazir Ami" Chand Civil Revn. No. 13 of 2010 A, in which F have held that in a rent suit the third party claiming to be owner of the property could not be made a party as it would convert a simple suit for arrears of rent into one for determination of the title to the property in respect of which the rent is claimed. After hearing the learned counsel for the parties I adhere to the view taken by me in the case referred to above. The basic authority on this question is Lodai Mollah v. Kally Dass Roy, ILR 8 Cal 238 B in which it was held that where a person sued for rent sets up the title of a third party and alleges that he holds under, and pays rent to him, such third party ought not to be made a party to the suit so as to convert a simple suit for arrears of rent into one for the determination of the title to the property in respect of which the rent is claimed. Rameshwar Pershad Singh v. Nauhku Mod, AIR 1916 Gal. 484 2 C and Pravat Chandra v. Amulya Chandra, AIR 1927 Cal 340 D are also to the same effect. The cases cited before us by the learned -counsel for the non -applicant are all distinguishable and cannot be invoked in the decision of this case. In Rameshwar Bhagat v. Jeban Narayan Singh, AIR 1937 Pat 49 E the intervener claimed that he had

(3.) PURCHASED the holding under the Bihar Tenancy Act, 1934. Landlords consent to the sale was presumed. The third party claimed title through the landlord and therefore, was held to be a necessary party in the case. In Kashi Das v. Krishna Gopal, AIR 1930 Pat 592 F a transferee of an occupancy holding claimed to be added as a party to the rent suit on the ground that he had been recognized as such by the landlord and the purpose of the rent suit was to bring the holding to sale. Here also the consent of the landlord was obvious and this case is as distinguishable from the present case as AIR 1937 Pat 49 E Sham Sunder Kuer v. Balgobind Singh, AIR 1930 Pat. 323 G is also similar. In a suit for Tent by a landlord against a tenant a third party, who alleged that the holding had been transferred to him with the consent of the landlord and that he and not the defendant was the real tenant of the holding, was allowed to be added as a party. In "Qadir Ahmed v. Abdul Khaliq, AIR 1943 Oudh 315 H the person claiming to be party to the suit alleged that he was a co -sharer with the plaintiffs and sir holder of the lands in suit and that the defendants were his sub -tenants. All these cases, therefore, do not over -ride the principle enunciated in ILR 8 Cal 238 A with which we find ourselves in respectful agreement. We therefore, accept this revision application, set aside the order of the Court below and direct that the name of Mst. Saraswati be struck off the list of defendants. Costs shall abide the event.