RANAWAT, J. - (1.) THIS is a civil revision petition by the plaintiff against on order of the District Judge, Jaipur District, dated the 19th Aprils 1952, remanding the case to the first court on appeal with a direction to implead the Government as a party to the suit and setting aside the decree of the first court. As the order of remand is under sec. 151 C. P. C. the plaintiffs have come up in revision to this Court.
(2.) THE case of the plaintiffs is that the lower appellate court ignored the provisions of sec. 99 C. P. C. in remanding the case after setting aside the decree of the first court on the ground of non-joinder or mis-joinder of the parties. It is urged that the Government was not a necessary party to the suit and the only of the order of the court would be rejection of the plaintiff's plaint as want of notice under sec. 80 C. P. C. would stand in the way of the plaintiffs. A preliminary objection was raised by the counsel on the other side that no revision lies to this Court against a remand order of the lower appellate court as an objection can always be taken on the points of mis-joinder or non-joinder of parties in appeal by virtue of sec. 105 C. P. C. Reliance is placed on a judgment of a Division Bench of this Court in Patramdas vs. Mangalchand (l), wherein it has been observed that the words "affecting the decision of the case" in sec. 105 do not necessarily mean the case as amended but they include the case as it was put forward at the time the plaint was presented for the first time in court and would have embraced the whole state of facts in course of its trial. In this view of the law it was held that the appellate court will be able to see whether an order allowing amendment of the plaint was such as could be properly made under Order 6, Rule 17 C. P. C. and that the order allowing or refusing amendment of the suit would affected the decision on the merits. The revision was therefore held to be not maintainable. In reply to the preliminary objection of the opposite party the decision in Thakur Laxmansingh vs. Thakur Raj Jujar Singh (1), has been cited on behalf of the plaintiffs. It has been observed in this case as follows: - "it is then urged on behalf of the respondents that even if the District Judge has gone wrong, he had jurisdiction to decide the matter, and it cannot be said that he acted with material irregularity in the exercise of his jurisdiction. In this connection reference need only be made to Dewan Bahadur Seth Umedmal and others vs. Chandmal (3 ). In that case the plaintiffs claimed the land in dispute under a mortgage from one M. and the main question was whether M. had included the particular land in his mortgage, but the court disposed of the suit without impleading M. It was held that it amounted to a material irregularity in the exercise of jurisdiction to decide the case in the absence of M. and a revision lay. This case is therefore authority for the view that not adding a party to a suit, who is a necessary party, amounts to an irregular exercise of jurisdiction. It seems to us that the converse, namely forcing a party to add another person as a party when that other party is not a necessary party would also be acting with material irregularity in the exercise of jurisdiction. Here the District Judge is forcing the plaintiff to implead the Government. As a matter of fact. Government is not a necessary party, and when the District Judge so forces the plaintiff, he must be held to be acting with material irregularity in the exercise of his jurisdiction. We are therefore of opinion that a revision lies. " The judgment in Patramdas vs. Mangal Chand (2) (1954 RLW 182.) which has been referred to by the appellant's side deals with the question of allowing or refusing to allow leave to amend the suit. The case does not deal specifically with the question of non-joinder or mis-joinder of the parties. That decision therefore is not of much assistance so far as the question of non-joinder or mis-joinder of the parties is concerned. The other decision in Thakur Laxman Singh vs. Thakur Raj Jujar Singh (1) (1953 RLW 596.) referred to above decides that on a point of non-joinder or mis-joinder of parties of revision lies in case where the lower court exercises its jurisdiction illegally or which material irregularity. It is also contended not without force that the lower appellate court has ignored the provisions of sec. 99 C. P. C. in setting aside the judgment of the first court of appeal on the ground of mis-joinder or non-joinder of the parties. In several cases it has been held that mis-joinder in the meaning of sec. 99 includes also non-joinder of the parties. The preliminary objection therefore fails and is disallowed. The suit of the plaintiff in the present case is for an injunction against the opposite party on allegations that the land described in the plaint belongs to the plaintiff and is in his occupation. The defendant had started constructions on a portion of it in disregard of the rights of the plaintiff. The case of the defendant was that he had acquired the site of this land from the Government for the purpose of constructing a Dharamshala. The first court came to the conclusion that the land belonged to the plaintiff and was in his occupation. The suit was therefore decreed. On appeal, the learned District Judge came to the conclusion that the defendant had set up the title of the Government in so far as he has pleaded that he had acquired the site from the Government. It was held that the Government was a proper party and this case was therefore remanded for impleading the Government and deciding the case after doing so. The question therefore arises whether the Government is a proper or necessary party in this case. The learned counsel of the opposite party has placed his reliance on the following authorities in support of his contention that the Government is a necessary party and the suit cannot proceed without including the Government in the array of defendants: - K. Parathasarathy Ayyangar and others vs. Authari Peria Kuppa Naicken and others (1) (AIR 1918 Mad. 622); Thina Shanmugu Moopunar vs. Mona Chuua Nana Subbayya Moopanar and another (2) (AIR 1922 Mad. 317.); (Pasumarthi) Subbaraya Shastri vs. Mukhamala Seethu Rumuswami (3) (AIR 1933 Mad. 664.); Thakur Laxmun Singh vs. Thakur Raj. Jujar Singh (4) (1953 RLW 596. ). In K. Parathasarathy Ayyangar's case the suit of the plaintiff was for a declaration that Mirasidars of a village had exclusive right to the fisheries in respect of two suit tanks. It was held that when the relief claimed by the plaintiff was against all persons including the Government they could not succeed without impleading the Government as one of the defendants. In that case relief was claimed against the Government and so the Government was considered to be a necessary party. That decision is distinguishable on the ground that in the present case no relief is claimed by the plaintiff against the Government. The case in Thina Shanmuga Moopanar was a case of four trustees and all the co-trustees were necessary parties. This decision is also not helpful in the present case. In (Pasumarthi) Subbaraya Shashtri vs. Mukhamala Seetha Rama-swami the suit was against the defendant in respect of certain land which was claimed by the plaintiff to be his own. The plea, of the defendant was that the land belonged to the Municipality and that he was only a licensee. The decision proceeded virtually as against the Municipality and it was therefore held that the Municipality was a necessary party. In the present case the defendant has not come as licensee of the Government but he has come as an assignee from the Government or a trustee for the construction of a Dharamshala. The observations in the judgment noted above therefore do not directly apply to the present case. The case of G. Krishnaswami Naidu vs. Municipal Council, Bellary, and other (5) (AIR 1937 Mad. 641.) is regarding Nazul land and it was held that no general rule can be laid down whether the Government should or should not be impleaded as a party to a suit in cases where a claim to property it made and a plea is taken by the defendant about the title vesting in the Government. The question whether the Government is a necessary party or not would depend upon the facts of each case and no general rule can be laid down. It was further laid down that in case where the plea of just tertii is set up it is generally considered desirable to make the person whose title is set up a party to the suit to avoid multiplicity of litigation. It was further observed that it should be specially so in cases where the interests of the public are involved and the ownership of the Government is in question. The learned counsel of the petitioner has referred to the cases of Sabhu and others vs. Rumsa and another (6) (AIR 1953 Himanchal P. 123.), Thacker Gordhundas Thackershy vs. Ali Osman and another (7) (AIR 1950 Kutch 56.); Krishnayya vs. The Bellary Municipal Council (8) (ILR 15 Mad. 292.); and Nathalal Ramdas Vagji and others vs. The Nadiad Municipality (9) (ILR 47 Bom. 306. ). In Sabhu and others vs. Ramsa and another (3) the case of the plaintiff was that the defendant was a trespasser and that the property was in-herited by him after the death of the lost holder. The defence was that the property vested in the Government after the death of the last holder on escheat and was transferred to the defendant by the Government. It was urged that the Government was a necessary party. It was held that the Government was not a necessary party and the suit could be decided without impleading the Government as one of the defendants. Reliance was placed in this case on the decision in United Provinces vs. Atiqa Begum (1) (AIR 1941 Federal Court 16.) as regards the discussion relating to proper or necessary parties. In Thacker Gordhandas Thackershey's case (2) (AIR 1950 Kutch 56.) both the parties claimed tenancy rights from the Government. It was held that the Government was not a necessary party and the suit could be decided in between the parties themselves.
(3.) IN Krishnayya vs. The Bellary Municipal Council (3) (ILR Mad. 292.) the plaintiff sued a Municipal Council under the Madras District Municipalities Act for a declaration of his title to a certain structure situated in the limits of the Municipality and of his right to put a roof over it. It was held that the Secretary of State was not a necessary party to the suit. In Nuthalal Ramdas Vaghji's case the plaintiffs filed a suit in the Subordinate Judge's court at Nadiad for a declaration that the plaint land was of their ownership and for an injunction restraining the defendant Municipality from obstructing them in the enjoyment thereof. A question was raised whether the Government was a necessary party to the suit. It was held that the Government was not a necessary party as the decision of the Survey Officer that the site in question formed part of a street did not mean that the Government had any interest in the land, the decision so far as it went being entirely a matter in which the Municipality and the plaintiffs were interested and the adjudication sought in the suit being with reference to the rights of these two parties. It has been urged on behalf of the plaintiff that in the past there had been litigation between the plaintiff's predecessor in interest and the Government regarding ownership of the lands which resulted against the Government and it was not necessary for him now to reagitate the same question in a separate suit. The plaintiff only claimed an injunction against the defendant for restraining him from committing trespass on his land and for raising constructions thereon. The title of the plaintiff for the suit land had been determined in a previous suit and no useful purpose would be served by forcing the plaintiff to implead the Government as a defendant to this suit. Moreover, the learned District Judge has said that the Government was a proper party and he has not held that the Government was a necessary party. In case, Government is now added as a party to the suit the plaint shall have to be rejected for want of a notice under sec. 80 C. P. C. This would mean a hardship for the plaintiff. The decision of the Himachal Pradesh High Court in Sabhu and others vs. Ramsa and another (4) (AIR 1953 H. P. 123.) supports the claim of the plaintiff that in a case where the result of the addition of a proper party would be rejection of the plaint such a course should not be adhered to. No relief is claimed by the plaintiff in the present suit against the Government. The suit of the plaintiff therefore can be adjudicated upon without impleading the Government as one of the defendants. The learned District Judge was therefore not right in ignoring the provisions of sec. 99 C. P. C. and in remanding the case for adding the Government as a party to the suit. This revision application is accepted and the judgment of the lower court is set aside and the District Judge is directed to restore the appeal to its original number and decide it according to law. Costs of this revision shall abide the result of the case in the lower appellate court. . ;