1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.768 of 2010 Nanasaheb Kondiba Ghanvat ... Petitioner versus Balkrushna Nivrutti Kashid & Anr ... Respondents ... Mr. V.S.Talkute for the petitioner. Mr.Sanjay Kshirsagar for the respondent no.1. CORAM : D.G. KARNIK, J. DATED : 25th June 2010 P.C. 1. Rule, returnable forthwith. 2. Mr.Kshirsagar waives service for respondent no.1. 3. In my view, respondent no.2 – original defendant is a formal party. Hence, service of Rule on respondent no.2 is dispensed with. Heard learned counsel for the appearing parties. 4. The petition arises out of an order dated 5 January 2010 passed by the Jt. Civil Judge, Jr. Division, Malshires allowing the application made by the respondent no.1 for joining him as a party to the suit. 2 Petitioner filed a suit bearing Regular Civil suit no.38 of 1985 against the respondent for possession alleging that respondent no.2 was a tenant and the same stood terminated by efflux of time. In the said suit, respondent no.1 appeared through an advocate and made an application at Exhibit 167 for joining him as a party to the suit. Respondent no.1 alleged that he and not the petitioner was the owner of the suit property. He further urged that respondent no.2 was not the tenant. The petitioner claimed that he was in possession of part of the suit property as an owner and hence he should be joined as party defendant to the suit. 5. Mr.Talkute learned counsel for the petitioner submitted that the respondent no.2 had filed a separate suit bearing Regular Civil Suit no. 37 of 1986 in the very Court for a declaration that he was the owner of the suit property and for an injunction restraining the petitioner from disturbing his possession. That suit was dismissed and an appeal (Civil Appeal No.7 of 2004) against the said decision is pending in the District Court. He submitted that in order to avoid multiplicity of litigation, it was necessary to join Respondent no.1 as a party to the suit. 6. In my view, in a suit for possession filed by the petitioner against the respondent no.2, on termination of tenancy, the respondent no.1 is not a necessary party. Under section 116 of the Evidence Act, a tenant inducted in possession of the property cannot deny the title of the landlord. Respondent no.2, who appears to have been inducted by the petitioner, cannot deny his title. If a third party claims that he is the owner of the property, third party can establish his right against the petitioner in an independent proceedings. In fact that appears to have 3 been done by the petitioner by filing the suit no.37 of 1986. Third party claiming ownership cannot claim to be joined as a party in a suit filed by the landlord against his tenant. For these reasons, the impugned order allowing third party to be joined as a party defendant in the suit cannot be sustained and is hereby set aside. 7. Writ Petition is allowed and Rule is made absolute with no order as to costs. (D.G. KARNIK,J.)