IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO. 41 OF 2008 NO. 41 OF 2008 NO. 41 OF 2008 FROM FROM FROM CHAMBER CHAMBER CHAMBER SUMMONS NO.1189 OF 2007 SUMMONS NO.1189 OF 2007 SUMMONS NO.1189 OF 2007 IN IN IN SUIT SUIT SUIT NO.3432 OF 1996 NO.3432 OF 1996 NO.3432 OF 1996 Movin F.D’Souza ...Appellant. Versus Vivian daughter of Wilfred Fonseca and wife of Ravi Shetty & Ors. ...Respondents. Mr.A.J.Almeida i/by Mr.V.B.Dhavan for the Appellant. Mr.Sanjay Jain i/by M/s. Zohair & Co. for Respondent No.1. Mr.Naushad Engineer i/by M/s.L.J.Law for Respondent No.21. CORAM CORAM CORAM : S.B.MHASE & : S.B.MHASE & : S.B.MHASE & R.V.MORE, R.V.MORE, R.V.MORE, JJ. JJ. JJ. DATED DATED DATED : 2ND SEPTEMBER, 2008 : 2ND SEPTEMBER, 2008 : 2ND SEPTEMBER, 2008 P.C. P.C. P.C. . Heard finally at the stage of admission with the consent of the parties. 2. This appeal is filed against the order passed by the Single Judge of this Court on 5th October, 2007 in Chamber Summons No.1189 of 2007 in Suit No. 3432 of 1996, wherein the Appellant has prayed that the title of the suit No.3432 of 1996 be amended by joining the Appellant as a party Defendant No.21 and that the ( 2 ) orders dated 03/10/2000, 08/01/2002 and 19/06/2002 be recalled or suitably modified and the Court Receiver of the High Court, Bombay appointed as a Receiver of the suit land be directed to hand over the possession of the suit land to the Appellant. Since this prayer was rejected, the Appellant approached this Court by way of filing this Appeal. 3. The impugned order is a common order in Chamber summons No.1481 of 2006 in the Judges Order No.150 of 2006 and the Chamber summons No.1189 of 2007. The Appellant has challenged the order to the extent of rejection of the Chamber Summons No.1189 of 2007. Chamber Summons No.1481 of 2006 in Judges Order No.150 of 2006, which was taken out by the original Plaintiff who is Respondent No.1 in the present Appeal though rejected, the Respondent No.1 has not challenged the same. In the result, the order passed by the learned Single Judge in Chamber Summons No.1481 of 2006 in Judges Order No.150 of 2006 has obtained a finality as against the Respondent- plaintiff and therefore, this Court has to consider only the validity and legality of the order passed in Chamber Summons No.1189 of 2007 filed by the present Appellant. ( 3 ) 4. The factual matrix are required to be stated before we come to the point of issue involved in the present Appeal. The Respondent No.1 is a Plaintiff in Suit No.3432 of 1996 filed on the original side of this Court. The property involved in the said suit is admittedly an agricultural property having the farm house situated at Gorai Village Taluka Borivali bearing survey Nos.as follows:- SURVEY SURVEY SURVEY NO. NO. NO. HISSA HISSA HISSA NO. NO. NO. 118 2(P) 119 1(P) 148 7(P) and 11 120 1(P) This property was belonging to one Mr. Jacinto D’Souza @ Jacin D’Souza, a Catholic Christian. He expired on 4th August, 1945 and it is the case of the Plaintiff that the Plaintiff and the Defendant Nos.1 to 19 are the legal heirs. It is further their case that Plaintiff and all the Defendant Nos.1 to 19 being the co-sharers of the property, are tenants in common and the suit property is in possession of Defendant No.18. It is their case that the Defendant No.18 is ( 4 ) looking after the entire suit property for all the co-sharers. The grievance of the Plaintiff- Respondent is that the Defendant No.18 has tried to convey the property to defendant Nos.5 to 11. The Defendant No.20, lodged a Deed of Conveyance dated 29th January 1996, for Registration under Serial No.371 of 1996 in the office of the Sub-Registrar, Bandra and executed between Defendant Nos.5 to 11 in favour of Defendant No.20 without the consent of the Plaintiff and other Defendants. Therefore, the Plaintiff contended and prayed that the said conveyance deed be declared as null and void and inoperative against him. The Plaintiff further claimed that he is entitled for 1/15th share in the family property and the same shall be carved out by metes and bounds and be handed over to him. It is prayed in the alternative that if it is not possible to carve out the share in the suit property, the said suit property be sold out and the amount of 1/15th share of the sale proceeds be given to the Plaintiff etc. 5. Thus, the suit is basically for partition and possession of the property which is a joint property inherited by the Plaintiff and the Defendant Nos.1 to ( 5 ) 19. The Defendant No.20 has impleaded in this suit only because the Defendant Nos.5 to 11 have executed a conveyance deed in his favour in respect of the common property and therefore, he is the necessary party in the suit. 6. After filing of the suit, the Plaintiff has filed Notice of Motion No.2825 of 1996 in which this Court directed the Defendant No.18 to maintain status-quo and not to transfer the suit property. Thereafter, Plaintiff alleged that the Defendant No.18 has started paltry activities and therefore, the Notice of Motion No.2718 of 2000 was moved for appointment of the Court Receiver and in that proceedings the Single Judge of this Court has passed an order of appointment of Court Receiver on 03/10/2000. However, the Court Receiver visited the suit property on 09/11/2000 for taking possession and at that time the Court Receiver was objected by the present Appellant and the Appellant claimed that the original Defendant No.18 is not in possession of the Property but the Appellant is in possession of the property. Therefore, the Plaintiff moved Notice of Motion No.3458 of 2000 to take forcible possession from the Appellant. The order was passed on 07/12/2000 directing the Court Receiver to ( 6 ) take possession of the suit property. In view of this, the Court Receiver has taken the physical possession of the suit property on 22/07/2002. It appears that in the meanwhile, the present Appellant, who was not the party to the suit but was only party to the Notice of Motion, filed an Appeal No.614 of 2002 and the said Appeal was dismissed on 31/07/2002. The Notice of Motion No.1722 of 2002 was taken by the Appellant for stay of the order dated 03/10/2000 i.e. order of appointment of Court Receiver. On 17th December, 2004, it was disposed of with the directions that the Appellant to take appropriate proceedings. Thereafter, it appears that the Appellant has approached for getting a permission to pursue the matter before the tenancy authorities and that was granted to the Appellant by way of Judges order No.150/2006. In view of this, the Appellant filed proceedings under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act-1948 (for short, "BT & AL Act") claiming that the Appellant is a tenant of the suit property, in an earlier proceedings i.e. Appeal No.614 of 2002 and the Notice of Motions in which the Appellant was made a party. The Appellant has constantly raised a plea that he is a tenant of the land and therefore, this Court cannot evict him from ( 7 ) possession of the suit property and the Court Receiver cannot take possession of the property. However, it appears that at that time there was no material in favour of the Appellant to demonstrate that he was tenant of the property and therefore, this Court has directed the Court Receiver to take possession of the suit property. 7. Though we have some reservations with regard to the impugned order, we restrain ourselves from making any observations in respect of the impugned order because first and foremost the Appellant was a tenant and therefore, we doubt whether the order of taking possession of the property could have been passed. 8. Be that as it may. Now, the fact as of today is that there is a declaration by a Tenancy authority in a Tenancy proceeding No.Tah/Bori/TNC/70(b)/4/2003. It has been declared by the Tahasildar by an order dated 29/05/2007 that the Appellant’s grandfather, father and thereafter the Appellant Shri Movin Felix D’Souza was the tenant of the suit property till 22/07/2002 when the possession of the said land has been taken by the Court Receiver. In view of this order, the Appellant has taken out a Chamber Summons No.1189 of ( 8 ) 2007 to add him as a party and to recall the earlier orders. 9. The submission of Mr.A.J.Almeida, the learned counsel appearing for the Appellant is that the Appellant and the Appellant’s forefathers is/was the tenant of the suit property and thereby even if the partition takes place between the family of the landlord, they are not entitled to take physical possession of the property unless they take an action for the possession of the property as provided under BT & AL Act. Even in a suit filed by them, it is the contention of the Appellant that he is the necessary parties inasmuch as the decree for a physical possession cannot be passed and the Court will have to pass decree keeping in mind provisions of Order XXI, Rule 96 of the Code of Civil Procedure. Therefore, the submission of Mr.A.J.Almeida, the learned counsel appearing for the Appellant is that though the Appellant being tenant of the property is not a necessary party for adjudication of the issue as to what are the shares of the plaintiffs and defendant Nos.1 to 19 inter-se, he is a necessary party to the suit so far as the decree of delivery of possession is concerned. However, the grievance is that even he has ( 9 ) not been joined as a party to the suit. Further grievance of the Appellant is that when the Court Receiver came for execution of the orders of this Court for taking possession, the Court came to know that the Appellant, who is not a party to the proceedings, is in possession of the property and, therefore, at that time it was improper to add him as a party only in the Notice of Motion. The Court should not have heard the Notice of Motion unless the Plaintiff joined the Appellant as a party in the main suit and thereafter joined him in a Notice of Motion. Otherwise, being made a party in the Notice of Motion is itself an order as against the party who is not party to the Suit. The learned counsel for the Appellant submits that the basic discipline i.e. the party to the suit be joined as a party to the Notice of Motion has not been followed by the Plaintiff and grievance is that the Court has ignored it. The learned counsel for the Appellant further submits that even now it has been declared that he is a tenant of the property and the proceedings are going on and the Appeal is pending. Prima-facie there is material that he is a tenant in the suit property and, therefore, he should be heard and hearing can be done only if he is joined as a party to the suit and, therefore, he ( 10 ) relied upon the Order I Rule 10 of the Code of Civil Procedure and submitted that the Court can exercise powers under the said provisions and direct the Plaintiff to add him as a party to the suit. 10. Mr.Jain, who appeared in the proceedings for the Respondent No.1 submits that the suit is for partition and in a partition suit, the Appellant is not a necessary party. He submitted that in a suit which has been filed by Respondent No.18 in City Civil Court as against Respondent No.20, the Appellant has filed an affidavit stating that he is an Estate Manager appointed by the Defendant No.18 and thereby has not claimed the status of tenancy. The learned counsel, therefore, submitted that the Appellant is a person put up by the Defendant No.18, for raising the issue of tenancy and, therefore, he is not a necessary party. He further submitted that the remedies of the Appellant to get the possession of the property lies with the tenancy authorities under Section 29 and 84 of the BT & AL Act and since the permission has been given as against the Court Receiver, he can prosecute those remedies in the Tenancy Court and therefore, he cannot come to this Court for the possession of the property. ( 11 ) 11. We would like to mention here that after the Court Receiver has taken possession on 29th July, 2007, the property was put to auction and in the auction, the Defendant No.20 has offered a highest bid for monthly rental viz. 10,100/- and thereby property is in possession of Defendant No.20 on a monthly rent as an agent of the Court Receiver. Under these circumstances, we are called upon to consider the present Appeal. 12. The Court Receiver was directed to take possession of the property forcefully from the Appellant under the orders of this Court. Therefore, the fact remains that the possession is taken forcefully and subsequently handing over of the possession shows that the property was in possession of the Appellant and was not in the possession of Defendant No.18. Even it is disclosed that when the Court Receiver had initially gone to take possession and even though the Plaintiff contends that the property was in the possession of Defendant No.18, we have to conclude as a fact that on the day the Court Receiver went to take possession of the suit property, the property was in possession of the present ( 12 ) Appellant and also from the pleadings which reveal that several Notice of Motions etc. have been filed. The contention is raised by the Plaintiff that he is not the tenant of the suit property. The suit properties are also admittedly agricultural lands and therefore, the provisions of the BT & AL are applicable. Even though, at one stage of the proceedings as we have narrated in the earlier para the history of the case, this Court was not impressed by the contention that the Appellant is a tenant of the property, now we have to accept him as a tenant of the suit land because there is a judgment of the Tahasildar under Section 70(b) of the BT & AL Act. We are aware that the stay order was granted and appeal is pending under Section 74 of the BT & AL Act before the Appellate Authority. We are also aware of the fact that there will be a further Revision before the MRT under Section 76 of BT & AL Act. What will happen in that matter is not known but if ultimately it is found that he is tenant in the property and since he has lost the possession of the suit property in this suit, under Section 144 of the Code of Civil Procedure, he is entitled to have restoration of suit property. Apart from that if he is found to be a tenant of the property we find that he is entitled to ( 13 ) the possession of the Suit property under Section 84 of the BT & AL Act. However, in order to get the possession under Section 84 of the BT & AL Act, it is necessary for the Appellant to establish that the person in possession is in wrongful possession and/or unauthorized possession of the property and therefore, if we tell the Appellant to have resort to the remedy of Section 84 he will have to establish that the Court Receiver appointed by this Court is in an unauthorized possession of the suit property and/or wrongful possession of the Suit Property. Since the order has been passed by this Court, it will be embarrassing for the Tahasildar to hold that the Court Receiver appointed by the High Court is in wrongful possession of the property and is in an unauthorized possession of the suit property and, therefore, we do not find merit in the contention of Mr.Jain, the learned counsel appearing for Respondent No. 1 that the remedy for the Appellant is to follow the procedure under Section 84 of the BT & AL Act. Even if the remedy under Section 29 of the BT & AL Act is followed the same issue will have to be raised before the Tahasildar and therefore, we do not find in the facts and circumstances of the case that the appropriate remedies are lying with the Tenancy authority. What ( 14 ) we find is that the prayer made by the Appellant at this stage to make him as a party and allow him to participate in the proceedings is a just and fair. Therefore, it will be in the interest of all the parties to the suit property that the Appellant is made a party to the Suit. Appellant is also a necessary party to the suit to avoid the protraction of the suit, because if he is not allowed to be joined as a party, he may file the suit as against the Plaintiffs and the Defendants and one more suit will be added in the proceedings of this Court. Apart from this, independently of this suit, if advised, he may file several proceedings under the BT & AL Act. To avoid these implications and to have an adjudication of all the disputes in one proceeding only, we find it necessary that the Appellant should be made a party to the suit and, therefore, we find that there is no merit in the submission made by Mr.Jain, the learned counsel appearing for the Respondent No.1 and we reject the said submission. 13. We allow the Appeal and direct the Plaintiff to join the Respondent No.21 as a party to the Original Suit within a period of eight weeks from today. ( 15 ) 14. While parting with the matter, it has come to our notice that in many matters, the Advocates join the parties directly in a Notice of Motion without joining them in original proceedings which is not in consonance with the Code of Civil Procedure and office has not taken any objection in this regard. We make an observation that whenever it is found in the suit while executing the interim orders that third party is in possession of the suit property, the interim order shall not be executed against the third party unless the third party is made a party to the main suit and pre-contests on merit to the interlocutory orders. Otherwise, the Plaintiffs and other parties to the suit may obtain interlocutory orders without disclosing to the Court that some other party is in possession of the property and which we find is a fraudulent move to be adopted in the Court and therefore, we have observed that henceforth no Notice of Motion should be entertained by the office wherein the party who is not party in the suit and is made a party in the Motion only. 15. So far as powers in respect of the possession the same is kept in abeyance and will be considered at appropriate stage. We make it clear that the ( 16 ) possession of the Appellant whether he is tenant or not, will only be finalized after the final decision of the tenancy proceedings which are instituted in the BT & AL Act, since this Court has no jurisdiction to decide that issue under Section 85 and 85A of the BT & AL Act. These observations will not apply only for the proceedings under Order XXI of the CPC. After the Respondent No.21 is joined as a party to the Original Suit, within a period of 15 days, the Appellant shall file a Written Statement. (R.V.MORE, (R.V.MORE, (R.V.MORE, J.) J.) J.) (S.B.MHASE, (S.B.MHASE, (S.B.MHASE, J.) J.) J.)