// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4258/2004 Ramesh Chandra Balodia S/o late Shri Chotilal Balodia ...Petitioner Versus Radhey Shyam Sain S/o Shri Laxmi Narayan Sain & Another ...Respondents Date of Order ::: 27.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Anant Bhandari, Counsel for petitioner Shri Ravi Shankar Sharma, Counsel for respondent No.2 #### By the Court:- Heard learned counsel for the parties. Plaintiff-petitioner filed a suit for eviction against the tenant- defendant-respondent No.1 Radhey Shyam wherein the respondent No.2 Prakash Chand Kumawat filed an application under Order 1 Rule 10 of the Code of Civil Procedure to implead him as a party on the ground that he is collecting rent of the disputed premise from tenant Radhey Shyam, therefore, he is a necessary party and he may be impleaded as party in the suit. // 2 // The application was contested by the plaintiff on the ground that the disputed premise was let out to tenant by his father late Shri Chhotilal, who had executed a will in his favour and he became exclusive owner of the rented premise after the death of his father Chhotilal and the application filed by Prakash Chand is liable to be dismissed. The learned trial court, vide its order dated 1st June, 2004 allowed the application and impleaded the applicant Prakash Chand as defendant No.2 in the suit. The said order is under challenge in this writ petition preferred by the plaintiff. The learned counsel for the petitioner contended that it was simply a suit for eviction wherein a landlord is entitled to file a suit. He further contended that there is a difference in between the 'landlord' and 'owner' of the property. The plaintiff has become exclusive owner of the rented premises by virtue of will executed by late Shri Chhotilal in his favour, therefore, he was entitled to file a suit for eviction against the tenant. He further contended that if the applicant/respondent No.2 is aggrieved then he should file a separate suit claiming his own title or for partition or for cancellation of the will executed by Chhotilal in favour of the plaintiff. He, therefore, contended that the learned trial court has committed an illegality in allowing the application of the applicant Prakash Chand under Order 1 Rule 10 of the CPC, which is liable to be set-aside by this Court. The learned counsel for the respondent No.2 contended that he is also son of late Shri Chhotilal and one of his legal heirs, therefore, he is // 3 // necessary party in the present suit for eviction in respect of rented premises which was let out by late Shri Chhotilal being co-owner of the property. He further contended that the rent of the premise was being collected by him even during the lifetime of Shri Chhotilal. He further contended that although he has already filed a separate suit for cancellation of the will, alleged to have been executed by Chhotilal in favour of the plaintiff, and partition of the property, but he is also a necessary party in the present suit, therefore, the trial court was right in allowing his application and in impleading him as defendant No.2 in the suit. He, therefore, contended that there is no merit in the writ petition and it deserves to be dismissed. I have considered the submissions of learned counsel for both the parties and examined the impugned order dated 1st June, 2004 passed by the trial court. The disputed premise was admittedly let out by late Shri Chhotilal to tenant Radhey Shyam, the respondent No.1. The plaintiff Ramesh Chandra and applicant/respondent No.2 Prakash Chand, both, are sons of Chhotilal. Plaintiff Ramesh Chandra is claiming his exclusive ownership over the disputed premise on the basis of the will alleged to have been executed by Chhotilal whereas the applicant/respondent No.2 Prakash Chand is claiming his right being one of legal heirs of late Shri Chhotilal. The respondent No.2 Prakash Chand has already filed a suit for cancellation of will executed by Chhotilal in favour of the plaintiff and for partition in respect of disputed premise in the lower court, which is // 4 // pending. So far as the present suit for eviction is concerned, it is correct that it has been filed by the plaintiff claiming his exclusive ownership in respect of disputed premise on the basis of the will executed by late Shri Chhotilal. This Court in Omprakash Vs. Gajanand RLW 2000 (2) Raj. 1219 has considered the definition of Section 3 (iii) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 in the light of controversy arising out of an application under Order 1 Rule 10 of the CPC. This Court held that under Section 3 (iii) of the Act of 1950 the word 'landlord' does not include 'owner' within its ambit as the ownership to the premises cannot be subject matter of tenancy. The present proceedings relating to eviction cannot be allowed to be converted into a suit for title. This Court in Omprakash's case (supra) held as under:- “(6). The question of impleadment of a party is to be decided on the touch-stone of Order 1 Rule 10 CPC which provides that only a necessary or a proper party may be added. Mere interest of a party in the fruits of litigation cannot be a true test doe his being impleaded as a party. (7). The object of Order 1 Rule 10 CPC is not to change the scope or character of the suit by adding new parties and to enable them to litigate their own independent claims, but simply to hold them to avoid unnecessary litigation which might otherwise become necessary. One of several co-owners can maintain an action in ejectment against a trespasser without impleading the other co- owners as parties thereto. In a suit between landlord and tenant, a third person claiming to be a co-owner of the property cannot intervene and seek to be added as a party when such a case was not even taken by the tenant. By allowing such a course to be adopted a simple suit between landlord and tenant could be converted into a suit for title between the landlord and a third person. In fact in a suit between the landlord and tenant only their // 5 // rights are to be determined on the basis of contract of tenancy. (8). In Nagendra vs. Jahoor Khan & Anr. (RLR 1995 (2) 627) this Court (Hon'ble R.R. Yadav, J.) propounded that “the element of ownership of the premises is not one of the characteristic of a landlord but it is receipt of the rent or right to receive the rent which is dominating factor within the meaning of Section 3 (iii) of the Act No.17 of the Act 1950. The expression 'Landlord' used under Section 3(iii) of the aforesaid Act does not include 'owner' within its ambit as the ownership to the premises cannot be subject matter of tenancy. The question of ownership or title normally cannot be gone into in a suit or proceeding initiated under Act No.17 of the Act 1950.” (9). Their Lordships of Hon'ble Supreme Court, in Pal Singh vs. Sunder Singh (Dead) by LRS and Others (1989 (1) SCC 444) indicated thus- “On the question of one co-owner being able to maintain the action for eviction, the Tribunal came to the conclusion in view of the decision of this Court in Sri Ram Pasricha vs. Jagan Nath and the decision of this Court in Kanta Goel vs. B.P. Pathak in the facts and circumstances of the case that the respondent landlord as co-owner alone could have maintained the eviction petition.”” The present controversy has already been examined by this Court in the above referred judgment delivered in Omprakash's case (supra) and the present case is fully covered by the aforesaid judgment. In view of the above, I find that the learned trial court committed an illegality in passing the impugned order dated 1st June, 2004 and the same is liable to be set-aside. Consequently, the writ petition is allowed. The impugned order dated 1st June, 2004 passed by the trial court is set-aside. The application under Order 1 Rule 10 CPC filed by the respondent No.2 Prakash Chand // 6 // is dismissed. The learned counsel for the respondent No.2 contended that it may be observed that any observation made in this order may not affect his suit filed in the trial court for partition and cancellation of the will. It is needless to mention that the present writ petition has been decided on the basis of interpretation of Section 3 (iii) of the Act of 1950 and no observation made in this order will in any way affect the rights of the respondent No.2 in his separate suit for partition and cancellation of the will. There will be no order as to costs. (Narendra Kumar Jain) J. //Jaiman// // 7 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.3660/2004 In S.B. Civil Writ Petition No.4258/2004 Ramesh Chandra Balodia S/o late Shri Chotilal Balodia ...Petitioner Versus Radhey Shyam Sain S/o Shri Laxmi Narayan Sain & Another ...Respondents Date of Order ::: 27.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Anant Bhandari, Counsel for petitioner Shri Ravi Shankar Sharma, Counsel for respondent No.2 #### By the Court:- In view of the order passed in the writ petition itself, the stay application, filed therewith, also stands disposed of. (Narendra Kumar Jain) J. //Jaiman// // 8 //