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2020 DIGILAW 171 (CAL)

Jugal Denre v. Goutam Denre

2020-02-10

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - The instant application under Article 227 of the Constitution of India is directed against an order dated 31st January, 2019 passed in Title Suit No.451 of 2015 by the learned Civil Judge (Junior Division), 4th Court at Howrah rejecting an application under Order 1 Rule 10(2) of the Code of Civil Procedure filed by the petitioner herein. 2. The factual matrix leading to the filing of the instant application is that the opposite party No.1 as plaintiff filed the above numbered title suit against the opposite party No.2, Chandu Charan Denre praying for eviction of licensee and recovery of khas possession of the suit property. It was pleaded by the plaintiff/opposite party No.1 that the suit property originally belonged to one Radha Rani Denre, mother of the parties, who became the owner of the same by purchase under a registered deed of sale dated 22nd July, 1983. Subsequently, Radha Rani Denre executed a deed of gift on 8th August, 2008 in favour of the plaintiff in respect of the suit property. The plaintiff accepted the said gift by mutating his name and paying taxes to the State of West Bengal. Before execution of the deed of gift, the defendant/opposite party No.2 lived in the two rooms in the suit property as a licensee under the said Radha Rani Denre. He used to live in separate mess. After the plaintiff became the owner of the suit property by virtue of said deed of gift, he requested the defendant to quit, vacate and deliver peaceful possession of the suit property. Since the defendant failed and neglected to handover possession of the suit property to the plaintiff, the plaintiff has filed the said suit for eviction of the defendant and recovery of khas possession. 3. The defendant/opposite party No.2 has been contesting the suit by filing written statement disputing execution of deed of gift by Radha Rani Denre in favour of the plaintiff. It is specifically pleaded by the defendant that he purchased the suit property out of his own investment in the name of Radha Rani Denre, mother of the parties to the suit, since deceased. After purchasing the suit property he made construction thereon. Though the plaintiff has alleged that the deed of gift was executed in the year 2003. He disclosed about the existence of such deed of gift only on 5th May, 2009. 4. After purchasing the suit property he made construction thereon. Though the plaintiff has alleged that the deed of gift was executed in the year 2003. He disclosed about the existence of such deed of gift only on 5th May, 2009. 4. The present petitioner Jugal Denre is another son of the said Radha Rani Denre. The petitioner prayed for addition of party in the said suit on the ground that the mother of the parties along with the plaintiff, defendant, the present applicant and other brother and sisters had/have been in occupation of the suit property for more than 50 years at a stretch. The mother of the applicant had a very good and cordial relation with all her sons and daughters till her death. She never disclosed of execution of any deed of gift in favour of the plaintiff in exclusion of the interest of the defendant and the present applicant on 8th August, 2003. The said deed of gift was manufactured and fraudulent. The petitioner came to know about the said deed of gift and institution of the suit by the plaintiff against the defendant on 23rd January, 2019 immediately thereafter he filed the application under Order 1 Rule 10 of the Code of Civil Procedure. 5. Mr. Sanjib Kumar Mal, learned Advocate for the petitioner submits that the petitioner has subsisting interest over the suit property. He is one of the sons of Radha Rani Denre who was the original owner of the suit property. The plaintiff filed the suit for eviction of opposite party No.2 claiming him to be a licensee in respect of the suit property. In the said suit the opposite party No.2 has clearly disputed the genuineness of the deed of gift. Therefore, the genuineness and veracity of the deed of gift dated 8th August, 2003 allegedly executed by Radha Rani Denre in favoru of the plaintiff is an issue involved in the suit. The present petitioner is one of the sons of the said Radha Rani Denre. Had there been no deed of gift he could have inherited the property according to his share. Therefore, he has subsisting interest over the suit property and he prayed for addition of the party under Order 1 Rule 10(2) of the Code of Civil Procedure. Mr. The present petitioner is one of the sons of the said Radha Rani Denre. Had there been no deed of gift he could have inherited the property according to his share. Therefore, he has subsisting interest over the suit property and he prayed for addition of the party under Order 1 Rule 10(2) of the Code of Civil Procedure. Mr. Mal, the learned Advocate for the petitioner has raised serious objection against the impugned order and submits that if the impugned order be not set aside valuable right of the petitioner will not be considered. 6. Mr. Debjit Mukherjee, learned Advocate for the opposite party, on the other hand submits that the plaintiff's suit is simpliciter a suit for eviction against the opposite party No.2 on revocation of licence and recovery of khas possession. In the said suit the issue as to whether a deed of gift is genuine or not is germane and a suit for eviction cannot be converted into a suit for declaration that a deed of gift is manufactured and fraudulent. In support of his contention it is submitted by him that even where a suit is filed against a tenant praying for his eviction, her husband cannot be impleaded as a party defendant in the said suit claiming to be the real tenant in respect of the suit property. In support of his contention, Mr. Mukherjee refers to a decision of this Court in the case of B.K Dutta vs. Nita Madan & Anr., (1984) AIR Calcutta 228 . It was held by this Court in the said report that in a suit for eviction the husband of the tenant cannot be held to be a necessary party or a proper party and for any effective adjudication of the dispute involved in the suit, the presence of the husband is not necessary. 7. Mr. Mukherjee also refers to a decision of Hon'ble Supreme Court reported in ( J.J Lal Pvt. Ltd & Ors. vs. M.R Murali & Anr, (2002) AIR SC 1061) . In the said report the Hon'ble Supreme Court was pleased to hold that in a simple suit of landlord and tenant, the relationship of Municipal Corporation with the respondents and their mutual rights and obligations are not germane to the proceeding. Similarly the question of title between the appellant and respondents cannot be decided in a suit for eviction. In the said report the Hon'ble Supreme Court was pleased to hold that in a simple suit of landlord and tenant, the relationship of Municipal Corporation with the respondents and their mutual rights and obligations are not germane to the proceeding. Similarly the question of title between the appellant and respondents cannot be decided in a suit for eviction. Accordingly, the application under Order 1 Rule 10(2) of the Code of Civil Procedure was considered and rejected by the Hon'ble Supreme Court. The same principle is reiterated in Bimal Kumar Goenka vs. Sanjay Kumar Jaiswal & Ors.,2010 2 CalHN 357 , holding, inter alia, that a third party cannot pray for addition in a suit for eviction on the ground that he is in possession of the suit property without their being any independent right of the said third party. The learned Advocate for the opposite party also relies upon a decision of this Court in the case of Biswanath Chattoraj & Ors. vs. State Bank of India & Ors., (2011) 1 CalHN 672 (CAL) . 8. Order 1 rule 10(2) of the Code of Civil Procedure empowers the court to strike out or add parties. The provision reads thus:- (2) Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joinded, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 9. Plain reading of the above provision suggests that where the court finds that a person should have been joined as a party to a suit, either as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court factual and completely to adjudicate upon and supply all the questions involved in the suit, such persons may be added as a party to the suit. Undoubtedly the plaintiff of a suit is the dominus litis. Undoubtedly the plaintiff of a suit is the dominus litis. Plaintiff cannot be directed as to how he would frame the suit and what relief he would pray for. Similarly the court is not empowered to convert a suit for eviction to a suit for title. It would be unreasonable to force a landlord suing for ejectment to implead the persons in possession as parties. In a suit for eviction of tenant, the petitioner disputing the title over the suit property cannot be made a party as he cannot be a necessary party since the investigation of title is not warranted by Law in support of my observation a decision of Rajasthan High Court in the case of Talib Hussain vs. Peer Azhar Hussain & Ors., (1998) AIR Raj. 150 may be relied on. 10. In view of above discussion, I do not find any illegality or material irregularity in the impugned order dated 31th January, 2019 passed by the learned Civil Judge (Junior Division), 4th Court at Howrah in Title Suit No.451 of 2015. 11. The instant revision is thus dismissed on contest, however without cost. 12. Impugned order dated 31st January, 2019 passed in Title Suit No.451 of 2015 is affirmed.