THAKURJI SHRI MAHADEVJI Vs. NATHU MALI

JUDGEMENT

(1.) IN a suit filed on be-half of Thakurji Shri Mahadevji by 9 persons acting as Managers and next friends of the plaintiff against Nathu for possession of land and for demolition of the super-structures built by the defendant on the land which is alleged to belong to the plaintiff. The defendant in his written statement stated that he had obtained a lease of the said land from the Jaipur Municipality and was making constructions under the terms of the said lease. He did not admit the title of the plaintiff to the disputed land. The defendant applied in the Court below that the Jaipur Municipality, under whom he was holding the land, should be made a party to the suit. The learned Munsif, Jaipur West, having accepted the request of the defendant on the 19th of January, 1950, directed the plaintiff to make the Jaipur Municipality one of the defendants in the suit. The plaintiff has now filed this revision on the ground that the order of the Court below is wrong in law and should be set aside

(2.) THE advocate of the plaintiff has cited A. I. R 1944 Nag. 130 in his favour. In that suit the plaintiff alleged that the 3 defendants trespassed on the plaintiff's land and excavated his well without his consent. He, therefore, prayed for a declaration of title to the land and the well and also sought an injunction against the defendants restraining them from trespassing on his land and from excavating his well. THE defendants pleaded that they acted in pursuance of a resolution passed by the Village Panchayat, and that they were digging the well in order to supply water to the villagers. THE trial Court held that the land and the well belonged to the plaintiff and that the Village Panchayat had no authority to pass any resolution for digging the well of the plaintiff. THE suit was decided in favour of the plaintiff. In first appeal the plaintiff's suit was dismissed on the ground that the plaintiff failed to implead the Village Panchayat as a defendant which was considered to be a necessary party in the suit. THE High Court in its judgment observed that "where the plaintiff sues the defendants as they are the wrong-doers who trespassed on his land and excavated the well the mere fact that the defendants by their written statement have stated that they acted in pursuance of the Village Panchayat Committee's resolution, does not deprive the plaintiff of his right to continue the suit against them by showing that the Village Panchayat Committee as well as the defendants were acting in excess of their powers and, therefore, they were individually liable. Without a decision on the question whether the resolution, was passed by the Village Panchayat Committee, was ultra vires and whether the acts of the defendants in the case were in excess of their powers the Court is not justified in dismissing the plaintiff's suit on the ground that the Village Panchayat Committee was not joined as a party. " In the present case there is no question regarding any act of the Municipality being intra vires or ultra vires. THE plea of the defendant is that the Municipality is the landlord and he is only a lessee under the Municipality. THE decision in A. I. R. 1944 Nag. 130, therefore, does not help the plaintiff in the present case. THE other side has put his reliance on A. I. R. 1933 Mad. 664. In that case the plaintiff brought a suit to eject the defendant from a site and to remove a pial erected by him thereon. THE plea of the defendant was that the land belonged to the Municipal Council, that he put up a pial with its permission and that the Municipal Council was a necessary party to the suit. THE trial Court held that as the plaintiff claimed the suit property as his it was unnecessary to implead the Municipality on the contention of the defendant. It was held by Walsh J. that the Municipality was a necessary party to the suit and not having been made one inspite of the objection taken from the start the suit must be dismissed. In deciding this case the Court discussed the authorities in A. I. R. 1927 P. C. 142, A. I. R. 1921 Cal. 622, 13 Bom. L. R. 118, 34 Cal. 753, A. I. R. 1925 P. C. 234. This case is practically speaking on all fours with the present case. THE defendant here pleads that he is only a lessee under the Jaipur Municipality. THE Municipality is, therefore, interested in the title of the disputed land and no effective decision can be made regarding the question of title to the disputed land without joining the Municipality as defendant. It is therefore, held that the Municipality is a necessary party for deciding the plaintiff's suit and the decision of the trial Court ordering the plaintiff to make the Municipality a party to the suit cannot be treated as bad in law.