- (1.) THE Plaintiff-appellant filed a suit in the court of the Sub-Divisional Officer, Hindoun for ejectment of the respondents as trespassers and for damages by way of compensation as well as for a permanent injunction restraining them from interfering any further with the cultivation of the said land. It was averred that the suit land was recorded in the cultivatory possession of the plaintiff, which he alone had been cultivating since long and that the defendant-respondents who had nothing to do wi:h this land unlawfully took possession of it by force and thereby caused him undue damage and an apprehension that the defendants shall in future also resort to such unlawful activities as would jeopardize the cultivatory rights of the plaintiff. THE suit was resisted by the defendants-respondants who urged that they had been cultivating the suit land in their own rights as Shikmi Kashtkars which fact was also recorded in the Khasra Girdawari prepared periodically by the village Patwari. It was also stated that the suit land was not exclusively in the Khatedari of the appellant, but that it was held in joint tenancy with Manohari and Hira as joint Khatedar along with the the plaintiff and that, therefore, without impleading the said co-tenants, who were a necessary party to the suit, the present action was not maintainable. THE trial court framed three issues, out of which issue No. 3 was whether Manohari and Hira were necessary parties to the suit and what will be its effect on the present suit. THE trial court proceeded to examine this single issue and came to a finding that as the plaintiff appellant had not impleaded the other co-tenants namely Manohari ( Hira having since died), the suit was not maintainable and accordingly it was dismissed in limini. In appeal the learned Additional Commissioner also examined this point and after applying his mind to the provisions of sec. 183 and 211 of the Rajasthan Tenancy Act, came to the same conclusion and in the result dismissed the appeal. THE plaintiff has now filed this second appeal before us. Before the appeal could be argued on other points the learned counsel for the appellant moved an application for amendment of the original suit by introducing the name of Manohari, a co-tenant of this land, as a defendant in the heading of the suit as well as the following matter in para 3 of the plaint. ***
(2.) THIS application for amendment was contested by the respondents whose main argument was that the amendment to be made now was sought at a very late stage, that it will change the nature of the suit and introduce an inconsistent plea in the pleadings. It was also pointed out that even if the amendment was allowed the present suit shall be hit by the provisions of sec. 211 of the Rajasthan Tenancy Act. The learned counsel for both the parties addressed us at some length as to whether the amendment sought to be made be or be not allowed and what will be the fate of the suit in either circumstances. The learned counsel for the respondents urged that in their written statement they had specifically raised the point that in the case of a co-tenancy unless all the tenants are joined as plaintiff, no single person can bring a suit for ejectment of a person who may have unlawfully taken possession of such a joint holding. In support of this argument he referred to the provisions of sec. 211 of the Rajasthan Tenancy Act, which lay down that where there are two or more co-sharers in any right, title or interest all things required or permitted to be done by the possessor of the same shall be done by them conjointly unless they have appointed an agent to act on behalf of all of them. It was argued that this provision of law being manadatory, an omission on the part of the plaintiff to implead the other co-tenant, as co-plaintiff was fatal to the suit and that the present amendment application, which inspite of its having been filed at a very late stage, is allowed and one of the co-tenants is made a pro-forma defendant, it will serve no useful purpose to the plaintiff whose suit shall inspite of such an amendment suffer from the same fatal defect which existed at the initial stage of the suit. In support of this contention the learned counsel cited 1950-R. D. , 118 etc. wherein it was held that in a suit for ejectment whether u/s. 180 or u/s. 183 U. P. Tenancy Act (these sections correspond to sec. 183 and 186 of the Rajasthan Tenancy Act) all the co-tenants must join as plaintiffs, otherwise the suit is liable to be dismissed. Order I rule 9 c. p. c. was held to be inconsistent with the provisions of sec. 246 of the U. P. Tenancy Act which corresponds to S. 211 of the Rajasthan Tenancy Act. In earlier decisions reported in 1940, R. D. 308, 1948 R. D. 131,1946 R. D. 278, 1948, R. D. 441 the same view was held by the U. P. Board of Revenue. In 1949 R. D. 308 it was further observed that where a suit was brought by one co-sharer only and the other co-sharer was impleaded as a defendant the other co-sharer's failure to join as a plaintiff was a fatal defect. In 1948 R. D. 214 it was further observed that all persons entitled to admit a tenant to the land must join as plaintiff in a suit u. s. 180 of the U. P. Tenancy Act (equivalent to sec. 183 of the Rajasthan Tenancy Act) otherwise the suit is liable to be dismissed. The ratio decidendi in all these cases was that no such suit can proceed unless all the co-sharers or co-tenants are joined as plaintiffs and their non-joinder would be fatal to the suit. In the present case before us the plaintiff appellant himself in his application for amendment clearly stated that Manohari was one of a joint co-tenant and that he sought to implead him only as a pro-forma defendant. In the arguments addressed to us it was pointed out that he could not be joined as a plaintiff,because his interest happened to be adverse to that of the appellant. We will not labour any landing on this controversy for the simple reason that as the law stands today, the present suit could not be proceeded with without impleading the other co-tenant Manohari as a plaintiff and that it would serve no purpose if he was to be made a proforma defendant in such cases. It is true that the application for amendment of the plaint has been filed in second appeal at a very late stage. The plea of non-joinder of a necessary party was raised in the written statement by the defendants and an application for amendment as put to us now could have been as well filed before the trial court. The appellant or his counsel should have been aware of the provisions of law in this behalf as contained in sec. 211 of the Rajasthan Tenancy Act and without dragging the litigation upto this court, should have taken steps to rectify an inherent defect in the suit. But granting it for a moment that they did not know of the aforesaid provision of law, which in itself is unpardonable, even if we condone this delay and show indulgence by allowing this amendment application, the result will be to accord permission to do a thing which is basically illegal for reasons given above and the consequence will be the same, namely the dismissal of the suit. In this view of the matter, I direct that not only the application or amendment, but also the suit as framed originally shall stand dismissed. Per Shri R. N. Hawathis second appeal has been preferred by the unsuccessful plaintiff whose suit for ejectment of the defendant-respondents from the suit-land as trespassers as well as compensation and permanent injunction has been concurrently dismissed by both the Addl. Commissioners, Jaipur (on 8. 3. 60) and the Asstt. Collector Hindon (on 31. 3. 60) on a technical ground of the suit not having been filed by all the co-tenants thereof. We have heard the learned counsel for the parties and examined the record also carefully. The suit was brought by the plaintiff-appellant with the averment that he has been and was the exclusive tenant and possessor of the suit land and had been cultivating it himself exclusively, the record in the khasra Girdawari being also the same, upto or about 2. 7. 58 when the defendant-respondents forcibly and wrongfully dispossessed him. The suit was denied in its entirety by the respondents who claimed their possession over the suit land for 6 or 7 years as a sub-tenant, with the same record in khasra Girdawari, and also alleged that the plaintiff-appellant was not the sole and exclusive khatedari tenant thereof, but that Manohari and Hira were also his co-tenants. The following issues were framed by the trial court and parties Jed their full evidence thereon : (1) Whether the plaintiff was Khatedar Kashtkar of the suit-land ; (2) Whether the defendant occupied it unlawfully on or about 1. 7. 58 : (3) Whether Manohari and Hira were necessary parties to the suit and what its effect would be on the suit; and (4) To what relief the plaintiff was entitled. The evidence led by the parties was not, however, at all looked into by the learned trial court,and the issue No. (3) 'whether Manohari and Hira were necessary parties to the suit and what effect it had thereon' was decided against the appellant on the sheer ground that the suit had neither been brought on behalf of all the Khatedars as required by sec. 183 of the Rajasthan Tenancy Act nor had other co-tenants been impleaded even as defendants nor any claim of the appellants being authorised to act on behalf of them had been made as required by sec. 211 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act) and holding that there did not remain any need of deciding other points at issue dismissed that suit in its entirety. In appeal also the learned Addl. Commissioner did not care to look into any other aspect of the case and upheld the decision of the learned trial court on the ground that both under sec. 211 and sec. 183 of the Act all the co-sharers should join as plaintiffs in a suit, as held after examining the language of corresponding U. P. Tenancy Act secs. 246 & 184 in a number of cases by the U. P. Board of Revenue, and turned down the plea of the appellants that no suit can be dismissed by virtue of the provisions of O. I, R. 9 C. P. C. only on the ground of non-joinder of parties with an observation that it related only to proforma parties. The decision of this Board in 1958 RRD 37 was also quoted to say that only one of the co-sharers could not admit anybody as a tenant. In this second appeal it has been urged on behalf of the appellant that the provisions of sec. 213 of the Act have been made wrongly applicable to this suit for the ejectment of the trespasser by the learned courts below, who have also been alleged to have erred in not giving a definite finding whether the appellant alone was in the exclusive possession of the suit land or not before deciding the case, and in dismissing the suit only on the ground of the non joinder of the parties without letting him have an opportunity of amending the plaint. The argument is that a trespasser could be sued to be ejected by any of the co-tenants and sec. 211 of the Act did not hit it. It was also stated that one of the co-tenants Hira had died about 20 years ago leaving Manohari alone as heir, who too had surrendered his rights in favour of the plaintiff and had not been in possession for a long time. It was also urged that the suit was governed by the provisions of general law and that he, therefore, possessed an inherent right under the provisions of order 6 Rule 17 C. P. C. of amending his plaint at any stage of the suit. The permission for making the following amendment in the plaint was also prayed for; The judgments of the learned courts below have been most forcefully supported by the learned counsel for the respondents, and it has been urged, relying on U. P. 1944 RD 390, 1948 RD 131, 1948 RD 278, 1948 RD 411, 1948 RD 442, 1948 RD 469, 1949 RD 308, 1950 RD 118, that section 211 of the Act rendered the provisions of O. 1, R. 9 C. P. C. inconsistent and a suit for the ejectment of a trespasser therefore brought without joining all the co-tenants as plaintiffs alone could not but be dismissed. As stated above, the parties have led all their evidence in the case. But the suit has been decided by the learned courts below not on the basis thereof but scrupulously avoiding any reference thereto only on the technical ground of law that being hit by provisions of sec. 211 of the Act, a suit for ejectment could not be brought by only one of the co-tenants without joining all of them as plaintiffs. It is of primary importance to examine this aspect of the case and arrive at a decision thereon first. In the cases of the U. P. Board of Revenue relied upon by the learned Additional Commissioner and the learned counsel for the respondents the decisions were based on sec. 246 (1) and for sec. 180 U. P. Tenancy Act as amended by the U. P. Tenancy (Amendment) Act No. X of 1947 sec. 18 read with sec. 31 thereof. The ratio decidendi in them was that sec. 246 (1) applied to the right, title or interest held by tenants also conjointly ; and that the suit for ejectment under sec. 180 being after amendment thereof permissible only by the 'person' entitled to admit the trespasser as tenant could not lie unless brought by all the co-tenants thereof conjointly as plaintiffs, none of these being allowed to be impleaded as a defendant even at any stage. Let us examine the relevant provisions of law in this behalf in the two States to determine how far this ratio decendi has been applied correctly to the present case. U. P. Tenancy Act, 1939. Rajasthan Tenancy Act (Before the amendment made by sec. 18 of the U. P. Tenancy (Amendment) Act No. X of 1947) " Sec. 180ejectment of persons occupying land without title "sec. 188 Ejectment of trespassers. (1) A person taking or retaining possession of a plot or plots of land otherwise than in accordance with the provisions of the law for the time being in force and without the consent of the person entitled to admit him as tenant shall be liable to ejectment under this section at the suit of the person so entitled, or when the joint consent of more than one person is required on the suit of any one or more of such person and also to any damages. . . . . . . . . . . . . . . . (1) A trespasser shall, notwithstanding anything to the contrary in any provisions of this Act, be liable (a) If he has taken or retained possession of any land without lawful authority to ejectment on the issue of a notice by the Tehsildar in case of land held directly from the State Government and in other cases on the suit of the person or persons entitled to admit him as tenant, and also to payment of penalty. . . . . . . . . . . . " After the amendment by sec. 18 of the U. P. Tenancy (Amendment) Act No. X of 1947. Sec. 180ejectment of person occupying land without consent. (1) A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person as entitled and also to pay damages which may. . . . . . . . . . . . " " Sec. 246suits, etc. by co-sharer inundivided property "sec. 211suits, etc. by co-sharers, (1) Except as otherwise provided in sub-sec. (3 ). . . . . where there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on behalf of all of them. (1) Except as otherwise provided in sub-sec. (3), when there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on behalf of all of them. (2) Nothing in sub-sec. (1) shall affect any local usage or special contract by which a co-sharer is entitled to receive separately the whole of his share of the rent payable by a tenant. (2) Nothing in sub-sec. (1) shall affect any local usage or special contract by which a co-sharer is entitled to receive separately the whole of his share of the rent payable by a tenant. (3) When one of two or more co-sharers is not entitled to sue or proceed alone and the remaining co-sharers, refuse to join in a suit or proceeding for money recoverable by them jointly such co-sharer may sue or proceed separately for his share, joining the remaining co-sharers as parties thereto. (3) When one of two or more co-sharers is not entitled to sue or proceed alone and the remaining co-sharers refuse to join in a suit or proceeding for money recoverable by them jointly such co-sharer may sue or proceed separately for his share, joining the remaining co-sharers as parties thereto. (4) Where the tenant of holding or the illegal transferee of such tenant is also a co-sharer in the proprietary right in such holding; nothing in this section shall require him to be joined as plaintiff or applicant in any suit or application brought or made against him as such tenant or illegal transferee under the provisions of this Act. (4) Where the tenant of a holding or the illegal transferee of such tenant is also a sharer in the proprietary right in such holding, nothing in this section shall require him to be joined as plaintiff or applicant in any suit or application brought or made against him as such tenant or illegal transferee under the provisions of this Act. Note :material difference in the provisions of the two State have been underlined. Now, it is self-evident that before the amendment in 1947 of sec. 180 of U. P. there was nothing in it to bar the suit for ejectment being brought by any of the persons entitled to admit the trespasser as a tenant. And this was notwithstanding the provision of s. 246 (1) which has undergone no amendment. This is borne out by the U. P. Board of Revenue Decisions in Chheda Lal Vs. Gujratans and Shanker Lal Vs. Subedar Ancharam, reported at 1944 RD 217 and 592 respectively also, wherein it was held that "unlike sec. 44 of the Agra Tenancy Act, sec. 180 (1) of the U. P. Tenancy Act now gives a right of suit to any one or more of those persons whose joint consent is required for admission to tenancy", and "where there are more persons who constitute the land-holders any one of them may sue for ejectment under sec. 180 U. P. Tenancy Act. " This finds support even in Abdul Majid Vs. Ali Hussain, 1944 RD 1955, wherein, as in the case under appeal before us, the plaintiff notwithstanding being only one of the recorded co-sharers had claimed himself to be the exclusive land-holder of the suit land the suit was not dismissed but remitted back to the trial court for the trial of and report its finding after impleading all other co-sharers as defendants whether the plaintiff's claim of being the exclusive land-holder was correct or not. I have further been at special pains to examine the law of U. P. on the subject for about 35 years down right from 1920 to 1955 and onwards. The U. P. Tenancy Act, 1939, which has been amended by Acts I of 1940, XVIII of 1942, IV of 1943, V of 1943, and 1 of 1947, was preceded by Agra Tenancy Act 1926 and Oudh Rent Act 1886, and the amendments made therein. Sec. 44 Agra Tenancy Act and sec. 127 Oudh Rent Act corresponded to sec. 180 U. P. Tenancy Act. Under those Acts remedy against a trespasser could be obtained by the plaintiff at his option both from the Civil and the Revenue Courts. It was only when the U. P. Act came in force that the remedy was restricted to suits in Revenue Courts. In Oudh a trespasser could not even be sued for ejectment. He could be sued only for recovery of arrears of rent, ejectment could be secured by an application only after the decree for rent had been obtained. In Agra, ofcourse, the suit could lie both for ejectment and damages. In Agra also a co-sharer could not sue for the ejectment of a trespasser if the land trespassed upon was held jointly. It was, however, so because the right of suing had been vested in the 'land-holder', defined as a person to whom the rent was payable, and unless a co-sharer could prove himself to be the 'land-holder' he could not sue. An extensive study of the case-law on the subject during the above-referred period has gone to show that it was rarely that a reference was made in the cases decided u. s. secs. 226 Agra or 126 Oudh, corresponding to sec. 246 (1) U. P. , corresponding in its turn to sec. 211 (1) Rajasthan. The stare decisions generally was when the right of suing vested in the 'land-holder' whether the single co-sharer suing could be called to be the 'land-holder' or not; and when the right was passed on to the person entitled to admit the trespasser as a tenant whether a co-sharer alone could so admit or not. Until the amendment of sec. 180 U. P. by sec. 18 of the Act No. X 1947, any co-sharer was held entitled to bring the suit under that section. It was only after this amendment that it was insisted upon whether the single suing co-sharer alone had the authority of admitting as a tenant or not. Rather, the High Court, whenever the suit was instituted in a civil court, held as in 1930 RD 371 (H. C.) and 1932 RD 76 (H. C.) that a co-sharer alone could bring the suit. In 1930 RD 371 H. C. , Sheotalal Dube Vs. Lal Narain Pd. Chand Dube, Sen J. of the Alld. High Court observed that when the property was held in co-ownership, any of the co-sharers could maintain against a trespasser the suit for possession of the entire property for the simple reason that in absence of a partition the right of each co-sharer extended to the whole property jointly with other co-sharers and that the attempt to reclaim the property was for the obvious advantage of al|l the co-sharers. In 1932 RD 76, Sheotalal Dube Vs. Lal Narain Pd. Chand Dube, Sulaiman Act C. J. ( as he was then ) decided that a co-sharer in a property consisting of entire plots and not a zamindari that can be enjoyed separately had a joint interest in all the plots and had a right to eject a trespasser who was holding them without any right or title, and that it was not necessary for the purpose of ejecting such trespasser that all the co-sharers should join in the suit. The cases relied on were Manun Vs. Nasratullah 1901 AWN 306 and Shiv Thakurji Vs. Vishanlal 44 Alld. 634. In 1930 RD 14, a case under sec. 44 Agra Tenancy Act, also the U. P. Board held that when one or two co-sharers bringing a suit for ejectment withdraw the remaining co-cosharers could continue the suit. In 1935 RD 279 the U. P. Board held that if one co-sharer bringing the suit could be proved to be collecting rent, he could sue. In 1936 RD 482 again it was held that the test in such cases were whether the rent was payable to one co-sharer plaintiff alone. 1945 RD 116 and 136 are not direct authorities on the subject. But they do go to show that only one or a few of the co-sharers could bring a suit under sec. 180 U. P. Tenancy Act and the rest of co-sharers could be impleaded as defendants notwithstanding the provisions of sec. 246 (1) thereof. In these cases it was held that suits under sec. 180 were only for ejectment and not possession and the decree therein did not give the plaintiff any exclusive right to possession. This view was followed in 1946 RD 78 also. In 1927 RD 19 again it was held on the basis of O. 3, R. 2 C. P. C. , one of the co-sharers having gone to live in another villageeven though he came dur-ring the course of the trial and gave statement in the course of the trial in favour of the subtenant sought to be ejectedthat the other co-sharer alone could bring the suit for ejecting the sub-tenant. RD 582: S. B. 12 of 1912-Ram Nandan Vs. Manchardas was relied upon in the case. In 1929 RD 525, a suit by one co-sharer was held by the Alld. High Court to be maintainable on the basis that under O. 1, R. 9 C. P. C. no suit could be defeated merely by reason of non-joinder of the parties and the court could in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. As against it there are rulings 1935 RD 482, 1936 RD 85 and 1938 RD 163, in which provisions similar to sec. 246 U. P. were made use of. But out of these 1935 RD 482 and 1938 RD 163 related to the ejectment of a tenant and 1926 RD 185 alone related to the ejectment of a trespasser. The above history of case-law for over three decades also goes to confirm the view that it is not the provisions of sec. 246 (1) U. P. or the corresponding sections of the repealed Acts of Agra and Oudh but the provisions of sec. 180 or the corresponding sections of the repealed Acts which have been guiding the decisions of the necessity or otherwise of the joining all the co-sharers as plaintiffs. This very principle has been recognized indirectly even in the decisions quoted on behalf of the respondents and relied upon by the learned Addl. Commissioner when it has been observed therein that with the amendment introduced by sec. 18 of the U. P. Tenancy (Amendment) Act X of 1947 no such suit could be brought unless all the co-sharers were joined as plaintiffs. The reliance placed by the learned lower courts on the provisions of sec. 211 (1) of the Act only on the analogy of sec. 246 (1) of the U. P. Act is therefore manifestly unwarranted and erroneous. This proposition in case of Rajasthan is all the more fortified by the appearance of words "notwithstanding anything to the contrary in any provisions of the Act" (so conspi-cously missing in U. P. Sec 180) in sec. 183 of the Act. The strong directive given by these words should act as a strong guard to keep the courts from going astray to look to the scope of application of sec. 183 of the Act to any other section or provision thereof. The special provisions of sec. 211 (1) of the Act that all things required to be done by the possessor of any right title, or interest shall be done by them conjointly (even if they applied to the institution of suits also, about which I do not feel the necessity of expressing my opinion at present) have thus been made nugatory so far as the application of sec. 183 of the Act went. And this seems to have been done purposely. For the Act also permits a co-tenant to sue for a declaration or injunction ; and the Act has been enacted to provide for certain measures of law reforms and matters connected therewith. It would be quite the reverse of the spirit of reforms contemplated if it was meant to snatch away even the right of ejecting a trespasser given under general law to an ordinary co-sharer to bring any suit he liked by impleading as defendants such other co-sharers as did not care or like to join him as plaintiffs which it would certainly mean if it was insisted upon that a suit for the ejectment of a trespasser could not be brought unless all the co-sharers joined as plaintiffs. Herein may be quoted with advantage AIR 1956 Bom. 264 and AIR 1952 Assam 27 also where a distinction has been made between a case of ejectment of a tenant and that of a trespasser and it has been held that an action in ejectment against a tenant can be brought by all the co-sharers except when the contract of lease has been made only by the co-sharer suing for ejectment, but that action against a trespasser can be brought by any of the co-sharers. With the above exposition of law, the provisions of C. P. C. do not become inconsistent with the provisions of the Act. As laid down by O. 1 R. 9 C. P. C. no suit can be defeated by reason only of a non-joinder of the parties, and the court may in every case deal with the matter in controversy as regards the rights and interests of the parties actually before it. In the present case, the appellant claims to have been cultivating the suit land exclusively by himself and alleges dispossession by the respondent on or about 1. 7. 58. The respondents have contested on the ground of sub-tenancy created in their favour, as deposed by respondent Madan, by the appellant alone. This controversy between the parties could have been decided by the learned trial court on the basis of the evidence already led by the parties after issues having been duly framed thereon. For the failure to join any party does not per se entail the dismissal of a suit as laid down in a number of decided cases, one of them being AIR 1944 Nag. 130 wherein even in a suit for trespass the defendant pleading entry under the resolution of a village Panchayat it was held that the validity of the resolution as well as action of the defendant could be decided in the suit which should not be dismissed merely because of the village Panchayat having not been made a party. The instant case is still stronger in this sense when the respondent Madan pleaded admission as sub-tenant by the appellant alone. A suit can fail on account of non-joinder, as held in AIR 1954 Alld. 383, only if a person should be legally required to be impleaded as a party or where the decree would be in-executable or infructuous in his absence. Even in such a case, a suit cannot be dismissed immediately on this ground alone without letting the plaintiff have an opportunity of amending his plaint and impleading the party in whose absence no effective decree can be passed, technically called the 'necessary part'. In absence of what is technically known as the 'proper party', without whose presence the court be not able to completely and effectively adjudicate on all points involved in the suit, the suit can never be dismissed. In such a case the court may either under O. 1 R. 9 dispose of the matter in controversy only so far as parties actually before the court be concerned or may order the addition of the party under O. 1, R. 10 (2) C. P. C. I may quote here with advantage, ILR (1954) 4 Raj. 192 and 1954 Madh. Bh. HCR 145 also. It has been held therein that one of several co-sharers can maintain an action in ejectment against a trespasser without impleading the other co-sharers as parties thereto, though it may be desirable to add them as proper parties. In ILR (1954) 4 Raj. 191, it has been observed that "where the plaintiff admits the existence of co-sharers but alleges that they have lost their rights, decree for possession of entire property should not be denied to him. The question whether the latter have lost their rights is a question which covers the plaintiff and those co-sharers and the trespasser cannot be allowed to take advantage or the plaintiffs denial of the other co-sharers' right to defeat his claim for possession as against the trespasser". Now, about the necessity or otherwise of the proposed amendment. The opposition of the learned counsel for the respondents to the proposed amendment is without force. O. 6 R. 17 authorises the court to allow, at any stage of the proceedings, either party to alter or amend his pleadings in such manner and on such terms as may be just; and it has been further laid down that all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties "shall' be made. It is well recognised principle of law that the courts are not to sit to administer discipline, but justice; Delay or remissness on the part of the plaintiff to amend the plaint should not be punished beyond the awarding of costs to the other party, unless the application has been made not in good faith but in bad faith or the amendment would cause to the opposite party an injury which cannot be compensated by costs. Nor should an amendment be disallowed only because it would prove to be infructuous. It can be decided in the form of an issue only after the amendment has been made, but not prejudged with that point of view. In short, all such amendments as are not illegal or unlawful or would not cause an irreparable (by costs) injury to the defendants, and would on the other hand bring out the real questions in controversy between the parties and enable their determination should be allowed, at any stage of the suit, even in appeal revision or second appeal, subject to the awarding of suitable compensation by way of costs to the opposite party. The reason is simple. All rules of procedure are meant to avoid multiplicity of proceedings and serve the advancement of interest of substantial justice and facilitate the task of administering thereof, but not at all to punish any party. The above observations are borne out by the authorities cited on behalf of the appellant, AIR 1941, All. 298, AIR 1955 Tripura 29, AIR 1953 Hyd. 212|and AIR 1954 Madhya Bharat I also, which can be multiplied further. AIR 1945 Sind 128, AIR 1953 Orisa 315, and AIR 1955 Cal. 372 quoted on behalf of the respondents do not in any way detract from this principle. Main stress has been laid by the learned counsel for the respondents that no new point, not raised in the trial court requiring further investigation as a fact, can be allowed to be raised in a court of appeal. These authorities go to support his contention in abstract. But the amendment proposed to be made by the appellant in the present case is not one of the kind. He is thereby only trying to explain and elucidate the allegations made by him in para (1) of his plaint and impleading Manohari, the only co-sharer alive, as defendant, and no more. Naturally, when his suit, as well as appeal have been dismissed by the learned courts below, even after letting the parties produce their full evidence, without referring to it or without first calling on him to implead such party or parties as the court considered to be 'necessary' the appellant could have applied for an amendment only in this second appeal. This amendment would only enable the court to decide as to who is in actual exclusive possession of the land in suit in presence of the party recorded as co-tenant, and to completely and effectually adjudicate upon all the matters in controversy in the suit between the parties. It has been held in AIR 1918 Mad. 1137 and 1955 Lah. 644 that in certain cases, as for example where the right to relief, exists in the plaintiff jointly with others and such others refuse to join him as plaintiffs, it will be necessary to add them as defendants though no right to relief is alleged to exist against them. The object of impleading a person who is to be bound down is only to secure full and effective relief. Plaintiff has right to relief not only against them against whom a relief is directly prayed for but even against the person whose presence will make the relief complete. Even the binding of a person into a decision can be regarded as a relief. The decision, however, so far as the claims and counter-claims of the appellant and respondents alone were concerned could be made in terms of O. 1 R. 9 C. P. C. even without impleading Manohari, because of the respondent Madin claiming sub-tenancy from the appellant alone. It would, therefore, be entirely in the discretion of the appellant to seek amendment before the trial court or not. If he sought, it would be allowed, for the reasons already discussed above, on the payment of a special cost of Rs. 25/- to the respondents , which would not be a cost in the suit. If this cost is paid and plaint amended, the defendants would be allowed to file written statements, issues framed afresh, and parties called upon to produce evidence thereon; and the suit would then be decided in accordance with the provisions of law in this behalf. In case, however, no such amendment is pressed to be made, the parties having already led their evidence they would be reached and the suit decided afresh on merits on the evidence in accordance with law in this behalf. Accordingly, this second appeal is allowed, the decree and judgments of both the learned courts below set aside, and the case remanded to the learned trial court for a fresh decision in accordance with the provisions of law in the light of and in compliance of the observations made hereinbefore above. Per Shri Shyamlal, Chairman : On reference This appeal has come up before me under section R. 3 (2) of the Rajasthan Land Revenue Act, 1956 as the learned members of the Bench which heard it were equally divided in their opinion as to the order to be made in it. I have heard the learned counsel for the parties and have examined the record as well. The relevant facts of the case are that Moti, Manohar and Hira are the recorded khatedar tenants of the land in dispute. On 26. 8. 58 Mod alone brought a suit against Madan and his son Ghasida defendant for ejectment with the allegations that on 1. 7. 58 the defendants had wrongfully trespassed upon the disputed land without any right or title. The defendants pleaded that they were the subtenants of the disputed land, that the entries in the girdawari were perfectly clear as regards their status, that the plaintiff alone was not the khatedar tenant of the holding, that there were other co-tenants as well and that as other co-tenants had not joined in the suit it was not maintainable. The trial court framed some issues and one of them was as to whether the plaintiff alone was entitled to institute this suit. The trial court held that the plaintiff alone could not maintain this action against the defendants and hence the suit was dismissed. The plaintiff went up in appeal before the learned Additional Commissioner who upheld the judgment and decree of the trial court. In this second appeal besides challenging the validity of decision of the lower courts an application was also presented on behalf of the appellant for permission to amend the plaint so as to bring one of the other recorded co-tenants in the array of the defendants. Shri Kanwar Bahadur one of the learned members of the Bench hearing the appeal held that the application for amendment as well as the appeal deserved rejection as the plaintiff alone was not competent to seek ejectment of the defendant. Shri R. N. Hawa the other learned member however held that the appellant should be allowed to amend his plaint and even otherwise the appeal deserved to be allowed and the case should go back to the trial court for a decision on merits. As for the prayer for amendment of the plaint I am clearly of the opinion that objection with regard to the absence of the other recorded co-tenants from the plaintiffs was taken at the earliest possible moment, that the plaintiff throughout the course of the enquiry never cared to seek any amendment. Nothing of the sort was applied for in the first appellate court as well. The request for amendment is definitely at a much belated stage and does not deserve to be allowed. Besides even if this request is granted it would not materially affect the decision of the lower court for the recorded co-tenant is not willing to be joined as a plaintiff and hence the legal requirements in this behalf cannot be deemed to stand fulfilled by the amendment sought to be introduced in this case. I, therefore, agree with Kanwar Bahadur with the request that amendment deserves rejection. As regards the maintainability of suit by one co-tenant only the law on the subject is perfectly clear. Sec. 183 of the Rajasthan Tenancy Act lays down that a trespasser notwithstanding anything to the contrary in any provision of this Act be liable to ejectment on the suit of the person or persons entitled to admit him as tenant. Where the tenancy vests jointly in a number of persons they all should act together to admit a sub-tenant and any one of them acting singly cannot admit anybody as a valid sub-tenant. Hence an action under this section must be at the instance of the whole body of co-tenants. A reference may also be made to sec. 211 of the Tenancy Act. Sub-sec. (1) of this section clearly lays down that in the case of two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly unless they have appointed an agent, to act on behalf of all of them. This proposition clearly supports the view taken by the lower courts in the present case. Sub-cl. (3) of this section lays down the exception which is confined only to a suit for recovery of money and can therefore have no reference to a suit for ejectment. The provisions of Sec. 211 have been referred to not because they have relevancy to the present suit but because, they have been referred to by one of the learned members in his elaborate judgment. Even if it be held for a moment that there is something in sec. 211 which allows one co-tenant to bring a suit by himself against a trespasser-a proposition for which there exists no basis whatsoever-even then it will hardly confer any advantage upon the appellant for the express and mandatory provision contained in sec. 183 is clearly to the effect that all persons entitled to admit a sub-tenant must sue for ejectment and this proviso is to occupy the field notwithstanding anything to the contrary in any provision of this Act. In other words, this provision is to prevail even if it is in conflict with that contained in sec. 211. In view of this exposition of law on the point it is not very necessary to refer to the case law cited by the learned counsel for the appellant. But as considerable stress was laid upon it, it may be referred to briefly. In A. I. R. 1956 Bombay 264 one of the landlords applied to recover possession of the land from his tenant for bonafide personal cultivation. The trial court allowed the appeal. In appeal one of the grounds taken by the tenant was that the applicant was not the sole owner of the land and that there were others as well who had shares in the land and as they were not joined in the application it was not maintainable. The Bombay Revenue Tribunal held that there were other co-owners as well and as they had not joined the action was not maintainable. The Bombay High Court agreed with this view. It was, however, observed in the judgment that it is true that as against a trespasser one co-owner on behalf of all the co-owners can maintain an action. This observation does not help to support the appellant for it cannot be so interpreted as to mean that one co-owner alone can take action. In AIR 1944 Nagpur the defendants pleaded that they were not trespassers, that they were acting in pursuance of the Village Panchayat Committee Resolution. It was held that the plaintiff was within his right to continue his suit against the trespassers by showing that the Village Panchayat Committee as well as the defendants were acting individually. This decision can hardly have any applicability to the present case. In A. I. R. 1952 Assam 27 it was the defendant who rented the house from the plaintiff alone and the relationship of the landlord and tenant existed only between the plaintiff and the defendant and hence it was held that the other co-sharers in the house which was the subject matter of that dispute were not necessary parties to the suit. This decision obviously has no similarity with the present one. The learned counsel for the respondent has also cited a number of decisions one of them being 1958 R. R. D. 37 which clearly supports the view adopted in this decision. In the result I am of the opinion that the appeal as well as the application for amendment deserves to be rejected as pointed out by Shri Kanwar Bahadur. The case should now go back to the Bench concerned for a decision according to the majority view. By the court :?according to majority opinion the appeal as well as the application for amendment is hereby rejected. The parties be informed accordingly. .;