KRISHNA VESUJI SHELAR Vs. VITHAL NARAYAN SHELAR

JUDGEMENT

(1.) (His Lordship upholding the decree appealed against proceeded to decide the question as to joinder of parties). As regards the frame of the suit, the present respondents were proper parties on the contention of the plaintiff. But, as they denied that they were tenants of the other defendants, it was open to the Court, if it chose, to frame a preliminary issue on the point and continue or dismiss them according to the finding. In the course that the litigation, however, has taken, they must be treated as having been properly impleaded. Fawcett, J.

(2.) (His Lordship proceeded to decide the question as to joinder of parties). On the legal point as to the joinder of Defendants Nos. 4 to 8 the learned Assistant Judge failed to notice that the law, as laid down in Jaggeswar Dull V/s. Bhuban Mohan Mitra [1906] 33 Cal. 425 and other cases, is qualified by an exception in the case where the person asserting a title paramount is connected with the mortgage. Here, the Defendants Nos. 4 to 8 were connected with the mortgage on the plaintiff's allegation that they were tenants of the mortgagee, and as they were properly joined under Order 34, Rule 1, it is incumbent upon the Court to settle the dispute between the plaintiff and the Defendants Nos. 4 to 8, and not leave it over for future litigation. It is sufficient to refer to the provisions of Order 2, Rule 1; Order 1, Rules 2 and 3; Order 6, Rule 17.