Thadani C. J-This is a second miscellaneous appeal from the judgment and decree of the learned District Judge, L.A. D., dated 27 6-50, by which he safe aside the judgment and decree of the trial Court and remarried the suit for re-trial. The order of remand is in these terms : "Therefore, for the ends of justice, I should set aside the judgment and decree and remand the suit for trial afresh after impleading the heir of Ganeshdas amending the plaint by giving descriptions and boundaries of the land on which the house 13 situated and also framing o( the necessary issues as indicated above. The defendant appellant should be given an opportunity to file a fresh M. S. if necessary, and thereafter the suit should be disposed of according to Jaw. The costs will abide by the result of the suit after it is heard afresh." [a] As a matter of caution, the appellant has also made an application under 8 115, Civil P. C. [3] The plaintiff Durgaprosad Goenka brought a suit against; the defendant Debidutt Saraff for ejectment from the house leased to him, and for arrears of rent and damages. The defence to the suit was that the defendant himself did not take the lease of the house from the plaintiff, but that it was the firm of Messrs. Pokarmall Laduram who rented the house from Messrs Ganeshdas Sreeram; the name of the firm of Pokarmall Laduram was changed to Ghasiram Debidutt, Pokarmall being the father of the defendant and Laduram, a son of a brother of Pokarmall. [4] On the pleadings, the trial Court framed the following issues : 1. Whether the suit is bad for non-joinder of parties? 2. Whether the defendant has defaulted rents ? If so. is he liable for arrears of rent with damages, as alleged In the plaint ? (3) Whether the defendant is liable to be evicted ? (4) To what relief, if any, is the plaintiff entitled ? [5] On the first issue, the trial Court came to the conclusion that it was the defendant who rented the house from the plaintiff and that the relationship of landlord and tenant existed only between the plaintiff and the defendant, and not between the two firms, as alleged by the defendant.
[5] On the first issue, the trial Court came to the conclusion that it was the defendant who rented the house from the plaintiff and that the relationship of landlord and tenant existed only between the plaintiff and the defendant, and not between the two firms, as alleged by the defendant. [6] While setting aside the judgment and decree of the trial Court, the learned District Judge has said nothing as to the finding of the trial Court on the first issue, namely, that the relationship of landlord and tenant existed between the plaintiff and the defendant, and not between the two firms. It is manifest that unless that finding is set aside, the suit cannot be remanded for re trial on the ground that certain co-sharers of the plaintiff are necessary parties to the suit. [7] As we propose to set aside the order of remand, we do not wish to pre-judge the decision of the learned District Judge on the first issue, but it seams to us that he ought very carefully to consider the finding of the learned Munsiff in which he has held that the relationship of landlord and tenant existed between the plaintiff and the defendant. Ordinarily, the question of title in an ejectment suit is not material. The material issue is: whether the relationship of landlord and tenant, existed between the plaintiff and the defendant. In a case where one of the co-sharers only makes a contract of lease, it is not necessary for the other co sharers to join as plaintiffs in an ejectment suit. [8] The learned Judge has also erred in thinking chat in an ejectment suit the boundaries of the property must be set out. In the present ease, the defendant did not dispute the fact that he was a tenant of the house in question The question, therefore, of the boundaries of the property did not arise. The learned Judge, therefore, was in error in remanding the suit for re trial on these two points. [9] We set aside the order of remand passed by the learned Judge in the exercise of our powers under S. 115, Civil P. C. assuming that no appeal lies, as to which we express no opinion in this case. We direct the lower appellate Court to dispose of the appeal in accordance with law.
[9] We set aside the order of remand passed by the learned Judge in the exercise of our powers under S. 115, Civil P. C. assuming that no appeal lies, as to which we express no opinion in this case. We direct the lower appellate Court to dispose of the appeal in accordance with law. We make no order as to costs, of the appeal, or revision. [10] Deka J. -I agree. Order accordingly.