S RATNASABAPATHI PILLAI Vs. GOPALA AIYAR

JUDGEMENT

(1.) The facts giving rise to the Civil Miscellaneous Appeal and the connected Second Appeal No. 508 of 1936 are briefly these. One Sambasivan Pillai, the third respondent herein, brought the suit O.S. No. 268 of 1932 for recovery of the plaint mentioned property from the first respondent herein on the ground that it had been leased by him to one Vyasachariar who let the first respondent into possession as a sub-tenant and that the latter was bound to surrender possession as the lease to Vyasachariar had been terminated.

(2.) The trial Court decreed the suit on 26 September, 1933, and the first respondent preferred an appeal, A.S. No. 7 of 1935, on the file of the Subordinate Judge's Court of Mayavaram. By that time, the first respondent had discovered that there had been a partition suit between the third respondent and his two sons and that a final decree had ,been passed therein on the 25 August, 1927, under which the suit property had been allotted to the sons of the third respondent. That partition suit culminated in a second appeal (S.A. No. 630 of 1933) to this Court which was dismissed on 15 September, 1933. On these facts, the first respondent contended in his appeal to the Subordinate Judge of Mayavaram that the third respondent had no right to sue for recovery of the property as he had lost the right to such property by reason of the final decree passed in August, 1927, under which the suit property as already stated had been allotted to the third respondent's sons. In view of this contention, the appellant herein, who is one of the sons of the third respondent who got the property under the partition decree, filed I.A. No. 13 of 1935 in A.S. No. 7 of 1935 in the lower appellate Court under Order 22, Rule 10, Civil Procedure Code, to implead himself as a supplemental respondent in the appeal so as to enable him to resist the first respondent's appeal as the rightful owner of the property and thus safeguard his interests therein. The Court below dismissed this application and allowed the appeal and this Civil Miscellaneous Appeal and the connected second appeal have been preferred against the said order and decree respectively.

(3.) The learned Counsel for the appellant has urged three contentions before me in the C.M.A. First he argued that the appellant was entitled to come on record under Section 146, Civil Procedure Code, and that the lower Court was wrong in dismissing the petition without considering the applicability of that section. I do not however see how that provision is applicable to the appellant in the circumstances of the case. That section would apply only if the appellant could be properly regarded as claiming under the third respondent who originally brought the action and was the sole respondent in the appeal in the Court below. But it is clear that the appellant cannot be so regarded as he got the suit property by virtue of the partition decree referred to already and not by reason?of any assignment or devolution from his father, the third respondent. I must therefore reject this contention.