Uttam Gulabrao Sakhare v. Champatrao Gulabrao Gawande, .

This is a defendant's second appeal from a suit for possession instituted by the plaintiff who claims to be the defendant's landlord and for recovery of arrears of rent.

2. The house in question is situated at mouza Sanglud, tahsil Daryapur, district Amravati. The plaintiff claims to be the owner of this house. According to him, he let out the house to the defendant in the year 1946. He states that at that time the defendant was in his service and had no house to live in. Therefore, he permitted the defendant to occupy the house and it was agreed between the parties that the defendant would pay rent to the plaintiff at the rate of Rs. 0-8-0 per month. His grievance is that though the defendant was asked several times to vacate the house and though he was even served with a registered notice in respect of it, he has refused to vacate.

3. The defence of the defendant is that the house in question belonged not to the plaintiff but to his maternal uncles Sukdeo and Baban, and that he is occupying it as a licensee of these two persons. He denied that the plaintiff has any title to the house or that he was let into possession by the plaintiff.

4. In his written statement, the defendant also contended that Sukdeo and Baban were necessary of at least proper parties to the suit, suggesting thereby that they should be joined as parties to the suit.

5. The trial Court decreed the suit. The defendant thereupon appealed to the District Court but his appeal was dismissed.

6. The first point which has been urged before me very strenuously by Mr. Prabhune on behalf of the defendant is that Sukdeo and Baban were necessary parties to the suit and that since they were not joined as parties thereto, the suit itself was rendered bad and ought to have been dismissed as untenable. In support of his contention, Mr. Prabhune strongly relies upon a decision of a single Bench of the Madras High Court in Subbaraya v. Seetha Ramaswami, AIR 1933 Mad 664. That was a case where the plaintiff had brought a suit to eject the defendant from a site which was in the latter's occupation. The plea of the defendant was that the land belonged to the Municipal Council and that the Municipal Council was, therefore, a necessary party to the suit. The trial Court, without making the Municipal Council party, held that the plaintiff had made out a better title to the property in suit than the Municipal Council and granted a decree to the plaintiff. The decree was confirmed by the appellate Court but was reversed in second appeal by the High Court. The learned Judge relied mainly upon the decision in Umed Mal v. Chand Mal, 53 Ind App 271 : (AIR 1926 PC 142) and upon a passage from Dicey on Parties to an Action, R. 113 (p. 495). In Umed Mal's case, 53 Ind App 271 : (AIR 1926 PC 142), the facts were that a mortgagee as purchaser of the mortgaged properties in Court auction in execution of his mortgage decree sued a third party, not being the mortgagor, in ejectment of one of the suit properties which were alleged by him to have been included in his mortgage and purchased by him in execution. He, however, did not make the mortgagor a party to the suit; but his suit was decreed by the lower Courts. Their Lordships said that the lower Courts acted with material irregularity in the exercise of their jurisdiction in deciding the question of title to the mortgaged property in the absence of the mortgagor. I may point out that in the case before their Lordships the precedent title of the mortgagor was admitted by both the parties. That is not the position in the case before me, nor apparently was the position in the case before the learned Judge.

7. The passage from Dicey on Parties to an Action, which has been relied upon by the learned Judge, runs as follows:

“The persons who have a right to defend in an action of ejectment are any persons named in the writ and any person who is in possession by himself or his tenant………The object of the plaintiff in ejectment is to obtain, not damages but possession of the land. He brings his action against the persons actually in possession, and if he succeeds, e.g, through their letting judgment go by default, he turns them out and himself obtains possession. This may cause damage to a person, who owns but does not himself actually occupy the land and is therefore not made a party to the action. A, for example, brings an action of ejectment against X and Y who are in the occupation of land as tenants of Z from week to week; Z is not made a party to the action, the tenants let judgment go by default and A obtains possession. This is obviously an injury to Z, for he must, in order to regain possession, either enter and then turn A out, or, in his turn, bring an action of ejectment against A. But the injury, may extend far beyond this, and Z may be deprived of his property, for A may have no title and therefore Z may be able if sued to resist his claim.”

8. It would be clear from this passage also that the learned author was considering a case where there was no dispute as to the precedent title of the third party. Apart from that, as has been pointed out in Poonit Singh v. Kamal Singh, AIR 1924 Pat 172, even according to this passage, strictly speaking, only all those persons who are actually in physical possession of the property should be made defendants and that it is neither necessary nor proper to join any person who is merely in receipt of the rents and profits of the land.

9. As against this decision, there is an old decision of this Court which goes against the view taken by the Madras High Court. That decision is Kashi v. Sadashiv, ILR 21 Bom 229. In that case, the learned Judges held that if the plaintiff, in an ejectment suit, can make out a legal title to the land, he is entitled to maintain a suit against the person in actual juridical possession of such land for its recovery without making the person under whom the latter claims to hold a party to the suit. There the plaintiffs had based their title to the land in dispute on a lease granted by Government giving occupancy right to their predecessor-in-title and the defendants claimed to hold the land under an occupancy title conferred on them by Government subsequent to the plaintiffs' lease. The learned Judges held that though the Government might have properly been made a party so as to bind it by the decree and prevent future litigation, it was not a necessary party to the suit. Mr. Prabhune contends that this decision cannot be regarded as good law in view of the decision of their Lordships. Be that as it may, it is sufficient to say that the present case is distinguishable from the Privy Council case, inasmuch as the precedent title of Sukdeo and Baban has not only not been accepted by the plaintiff but is disputed by him. I may also refer to the decision in Mst. Mullar Devi v. Mohar Lal, 1951 All LJ 700, where the decision of this Court in ILR 21 Bom 229 has been followed and the following passage therein approved:

“We consider that if the plaintiff in an ejectment suit can make out a legal title to land, he is entitled to maintain a suit against the person in actual juridical possession of such land for its recovery without making the person under whom the latter claims to hold a party to the suit……..It is enough for the plaintiff to sue the person in actual possession. It would be unfair upon him to compel him to add a party of whom he may know nothing and against whom he may have no cause of complaint, while the defendant by disclosing the name of the person under whom he claims can have him made at his own risk a defendant to the suit.”

10. From this decision, it will be clear that though Sukdeo and Baban were proper parties to the suit, their joinder was not necessary to enable the plaintiff to obtain the relief which he claimed against the defendant. Apart from this, the suit as framed by the plaintiff is between landlord and tenant, and it he proves the contract of tenancy, then the estoppel under S. 116 of the Evidence Act would operate against the defendant. By the operation of the estoppel the question of title would be completely shut out from this suit.

11. Mr. Prabhune, however, points out that the contract of tenancy pleaded by the plaintiff has not been held to be proved, and in this connection he refers to the following observations in the judgment of the trial Court:

“The plaintiff admitted in the witness-box that the defendant was the servant of the plaintiff and being in need of a house was allowed by him to live. The plaintiff admitted that the plaintiff had no intention to realise rent. It appears quite plausible that the defendant must have been allowed by the plaintiff to live in the house in dispute in the capacity of a licensee. I, therefore, hold that the defendant was the licensee of the plaintiff.”

12. Now, it is true that the Court holds that the defendant is not liable to pay any rent but it also holds that the defendant was let into possession by the plaintiff. No doubt, it characterises the relationship between the parties as that of licensor and licensee and not that of landlord and tenant. But that was merely an interpretation placed by the Court on the evidence of the plaintiff. It may well be that the defendant was a tenant of the plaintiff but was not liable to pay rent. However, even assuming that he was merely a licensee, it does not mean that the estoppel created by S. 116 of the Evidence Act does not apply. If authority were needed for this proposition, I would refer to the following passage from Sarkar on Evidence, 9th edition, p. 1002:

“The rule that tenant cannot deny his landlord's title extends to the case of persons coming in by permission as a mere lodger, a servant or other licensee … (Doe ??? Johnson v. Baytup, (1835) 3 A and E 188).”

13. I, therefore, hold that in view of the finding of the trial Court which was confirmed by the lower appellate Court, that the defendant was let into possession of the house by the plaintiff, the question of title could not arise in this suit, and that being so, Sukdeo and Baban were neither necessary nor proper parties to the suit.

14. I may mention that at the commencement of the hearing of this appeal, Mr. Prabhune made a request to the effect that this appeal should be heard along with Second Appeal No. 38 of 1958 which is admitted by this Court for hearing, on 7-2-1958. That appeal arises out of a suit instituted by Sukdeo and Baban for a declaration to the effect that the house which is the subject-matter of the suit out of which this appeal arises, belongs to them and for a permanent injunction restraining the present plaintiff who was joined as a defendant to that suit along with the present defendant, from executing the decree which the present plaintiff obtained against the present defendant with respect to the house in question. That suit was decreed by the trial Court and the decree of the trial Court was confirmed by the lower appellate Court. As a result of the ultimate decree of the lower appellate Court, the plaintiff is restrained from executing the decree which is the subject of the appeal before me, against the house in question. As that appeal would take considerable time for being made ripe for hearing and as the present appeal is fairly old, I declined the prayer made by Mr. Prabhune. However, while dismissing the present appeal with costs, I would direct that the decree of the lower appellate Court which I affirm will be subject to the decision in Second Appeal No. 38 of 1958 and will not be executed, in so far as the relief of possession is concerned, till that appeal is decided.

GC/V.B.B

Appeal dismissed.