J.V. Gupta, J. - (1.) THE Plaintiff -Appellant has filed this appeal against the order of the Additional District Judge, Jullundur, dated 7th of September, 1979, whereby the decree of the trial Court in favour of the Plaintiffs has been set aside and the case has been sent bank to the trial Court with the direction that the Plaintiffs be given an opportunity to amend the plaint so as to join the other co -sharers as Plaintiffs.
(2.) SHRIMATI Harnam Kaur, Charan Kaur (Since deceased) and Tarsem Kaur filed a suit against Mehar Singh Defendant for possession of the site along with three shops on the ground floor and 8 rooms on the upper storey comprised in Khasra No. 1041 on the allegations that the constructed portion, as stated earlier, belongs to the Plaintiffs having been inherited from Thakar Singh deceased. Tarsem Kaur is the daughter while the other two ladies w -re the widows of the deceased Thakar Singh. It was alleged that the property in dispute was rented by the Plaintiffs to Capt. Rattan Singh who left the same about 5 years back and the Defendants in connivance with the said tenants entered into possession of the property in suit without the consent of the Plaintiffs. It was, however, further stated that the Plaintiffs bad a right to sue against Defendants as trespassers and the other co -sharers were not necessary parties though it was made clear that this suit would be for the benefit of other co -sharers as well. The suit was contested on behalf of the Defendant Mehar Singh, inter alia, on the ground that Darshan Kaur and other co -sharers were necessary parties inasmuch as their inclusion as parties will avoid the multiplicity of litigation. On merits, it was dented that the Plaintiffs are the owners of the suit land. The Defendant further pleaded (bat he had built and occupied the property in dispute for more than TO years as owner and his possession was adverse and has ripened into ownership. On the pleadings of the panics, the trial Court framed the following issues: 1. Whether the site in dispute is a part of Khasra No. 1041 situate in Goraya? 2. Whether the Plaintiffs are the owners of the site in dispute? 3. Whether the Defendant No 1 is in possession of the suit it property for 20 years and has become owner of the same by adverse possession? 4. Whether the suit is not within time? 5. Whether the suit is bad for mis joinder of necessary parties? 6. Whether the suit is properly valued for the purposes of court -fee and jurisdiction? 7. Relief. The suit was decreed by the trial Court as it came to the conclusion that the Plaintiffs are the owners of the site in dispute and the Defendant has not become its owner by adverse possession. On issue No. 5, it was held that the suit was not bad for non joinder of the necessary parties as even one co -owner can file suit against the trespassers without impleading the other co -owners as parties. Reliance in this respect was placed on Ram Niranj an Dass and Anr. v/s. Loknath Mandal and Ors. : AIR 1970 Pat 1. On appeal filed on behalf of the Defendant Mehar Singh, the finding on issue No. 5 for not joining the necessary parties to the ' suit has been reversed and as a result thereof, the judgment and decree of the trial Court has been set aside and the case has been sent back to the trial Court with the direction that the Plaintiff be given an opportunity to amend the plaint so as to join the other co -sharers as Plaintiffs if they so choose and in the event of their refusal to array them as such, the trial Court will record an order in accordance with law. Feeling aggrieved against this order, the Plaintiff has come up in appeal in this Court.
(3.) LEARNED Counsel for the Appellant contended that even one co -sharer is competent to file a suit against a trespasser without impleading the other co sharers as parties to the suit. In support of his contention, he has relied upon Ganga Ram and Ors. v/s. Relu : AIR 1933 Lah 999, Ram Niranjan Das and Anr. v/s. Loknath Mandal and Ors. : AIR 1970 Pat 1, Sundarammal v/s. Sadasiva Reddiar etc. : AIR 1959 Mad 349 and Gopal Singh v/s. Mehnga Singh, 1968 PLR 515. On the other hand, the learned Counsel for the Defendant -Respondent contended that this proposition as such is not applicable to the facts of the present case because, according to him, the Defendant is not a mere trespasser. He has further claimed himself to be the owner of the property by adverse possession. He referred to Kanakarathanammal v/s. Loganatha Mudaliar and Anr. : AIR 1965 SC 271 and Rajabibi and Ors. v/s. S. Amir Ali and Anr., AIR 1974 Kar 115, in support of the proposition that all the co -owners must be joined in such a suit. I have heard the learned Counsel for the parties at a great length. The distinction sought to be made by the learned Counsel for the Respondent that the Defendant -Respondent is not a mere trespasser but has claimed him self to be the owner by adverse possession, is of no significance. The maintainability of the suit is to be seen from the allege dons made in the plaint. Admittedly, the Defendant has been alleged to be the trespasser by the Plaintiff in the suit. Moreover, it is further clear from the pleadings of the parties that the Defendant has claimed himself to be the owner by adverse possession which, in other words means that he does not deny the allegations of the Plaintiff stating him to be a trespasser. In any case, the proposition is well settled (hat a trespasser can be evicted even by one of the co -owners. Reference in this respect may be made to Gopal Singh v/s. Mehnga Singh, 1968 PLR 515.;