CR No.1490 of 2008 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CR No.1490 of 2008 (O&M) Date of Decision : 13.7.2010 Joginder Singh ..Petitioner. Vs. Hazara Singh and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.S.S.Walia, Advocate for the petitioner. Mr.Vikas Kumar, Advocate for LRs of respoindent No.1 (Hazara Singh) deceased. RAKESH KUMAR JAIN, J. This revision petition is directed against the order dated 31.1.2008 (Annexure P-1) by which application filed by the petitioner under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (for short `CPC') has been dismissed. Briefly put, the plaintiff/respondent No.1 Hazara Singh filed a suit for declaration to the effect that he is a Gair Marusi tenant on Batai Tihai over the land measuring 36 kanals 10 marlas comprising in Square No.16 Killa No.16(8-0), 18(8-0), 25(7-15), square No.17 Killa No.20/2(7- 12), 21/1(5-8) situated in village Alannor Tehsil and District Sirsa under the land owner and the revenue record showing defendant No.1 to be a tenant on payment of Batai Thihai, vide rapat No.195 dated 28.2.1997 by defendant No.2 (Raj Bux Kanungo) is incorrect and also prayed for consequential relief restraining the defendants from interfering in his actual CR No.1490 of 2008 (O&M) -2- physical possession. The suit was contested by both the defendants who had filed their separate written statements. In the written statement filed by defendant No.1 preliminary objection was taken to the effect that suit is bad for non-joinder and misjoinder of necessary parties. On merits, in para No.1, defendant No.1 has stated as under : “That regarding the contents of para No.1 of the plaint, it is correct that the plaintiff is a resident of village Jagmalera, District Sirsa. Rest denied being incorrect and not admitted. As a matter of fact that on 28.2.1997, in the presence of the plaintiff-Hazara Singh, Asha Singh Lambardar of village Bhambhoor and Kabal Singh, who is the son of the plaintiff, has made a statement before the Revenue Patwari of village Alanoor, in which Hazara Singh made a statement that the land comprised in square No.16 Killa No.18(8-0), Gair Marusi is under Balraj Singh Hisedar and land measuring 36 kanals 10 marlas, comprised in square No.16 Killa No.16(8-0), 23(7-15), Sq.No.17 Killa No.20/2(7-12), 21/1(5-8), which is incorporated in the revenue record is wrong and liable to be corrected. In fact the answering defendant is in possession of the suit land as Gair Marusi tenant since Rabi 1997. They further made their statement that the plaintiff has no objection and thereafter the revenue records have been changed by Halqa Patwari. All these facts have been concealed by the plaintiff. After making the statement, the revenue records have been changed by the Revenue Patwari and now at the spot the answering defendant is in possession of Gair Marusi tenant under Smt.Indra Devi and others. After change of the revenue records, the answering defendant vide rapat No.114 dated 28.11.1997, from the court of A.C.IInd Grade, Sirsa, the khasra girdawari is in the name of Joginder Singh son of Darshan Singh of land square no.16 killa No.18(8-0), now in square no.16 killa No.18(8-0) one Joginder Singh is also in possession. But the plaintiff has not impleaded Joginder Singh as a party in the present suit.” CR No.1490 of 2008 (O&M) -3- The applicant then filed an application under Order 1 Rule 10 CPC for the purpose of impleading him as a party respondent to contest the suit being in possession. The said application has been dismissed by the Court below by way of impugned order observing that the application has been filed at a much later stage, though, the applicant had the knowledge of his name appearing in the revenue record and also that a tenant cannot relinquish his tenancy except in favour of the real owner. Learned counsel for the petitioner has submitted that defendant No.1 has specifically averred in para No.1 of his written statement on merits that “after change of the revenue records answering defendant vide rapat No.114 dated 28.11.1997 from the Court of AC IInd Grade, Sirsa, khasra girdawari is in the name of Joginder Singh son of Darshan Singh of land square no.16 killa No.18(8-0), now in square no.16 killa no.18(8-0) one Joginder Singh is also in possession.” But the plaintiff has not impleaded Joginder Singh as a party in the present suit. Instead of contesting the application filled by the applicant-petitioner it was incumbent upon the plaintiff to have impleaded the applicant as a defendant in the suit. On the other hand, learned counsel for the respondent/plaintiff has submitted that the plaintiff is the dominus litus who can not be forced to implead any party to his suit against his wishes. He further submits that the present application is highly belated as the suit was filed in the year 2001 and the application has been filed in the year 2007. He has further argued that there is no error in the order of the Court below which calls for interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India. I have heard both the learned counsel for the parties and have CR No.1490 of 2008 (O&M) -4- perused the record. Admittedly, the plea was taken by defendant No.1 in para No.1 on merits that 8 kanals of land falling in Killa No.18 is in possession of Joginder Singh (petitioner). He had also urged that plaintiff should have impleaded Joginder Singh as party. Counsel for the petitioner has also shown to the Court revenue record for the year 2006-07 in which Joginder Singh (petitioner) is shown to be in possession as Gair Marusi tenant through Balraj Singh on the land falling in square No.16, Killa No.18(8-0). To my mind, even if the application has been filed after some delay, presence of the petitioner is necessary in the suit because the suit filed by the plaintiff is for declaration of his status as Gair Marusi tenant on land measuring 36 kanals 10 marlas which is admittedly in possession of the present petitioner. The plaintiff is required to prove his possession on the entire land on which he claims his tenancy on 1/3rd batai. In view thereof, the impugned order is set aside and the application filed by the petitioner is allowed. The revision petition is disposed of accordingly. (Rakesh Kumar Jain) 13.7.2010 Judge Meenu