P L D 1954 Lahore 406 (PLP)

B. Z. KAIKAUS.‑This second appeal arises in the circum stances that follow. Muhammad Sharif and Gul Muhammad appellants filed a suit against Mir Zaman and Khan Zaman in the Court of the Civil Judge, Rawalpindi, for possession of a shop along with the goods contained therein on the allegation that the site of the shop in dispute had beets taken on lease by the plaintiffs from the Municipal Committee about eleven years before the suit, that they had built on the site a shop at their own expense, that the defendants were their servants who had been carrying on the Shop on their behalf and that the defendants had in collusion with some officials of the Municipal Committee and with the help of some Municipal Commissioner got themselves accepted as tenants by the Municipal Committee. Following reliefs were claimed in the suit :‑ (1) A declaration that the plaintiffs were the tenants of the site in dispute under the Municipal Committee. (2) A decree for possession of the shop. (3) A decree for possession of the goods in the shop or in the alternative a decree for Ps. 116, being the value of the goods. To this suit the Municipal Committee was also made a party. Mir Zaman and Khan Zaman defendants pleaded that they were not servants but that they were in fact sub‑tenants under the plaintiffs and that the Municipal Committee on coming to know of the sub‑tenancy, cancelled the lease in favour of the plaintiffs. They alleged that the old chapter which had been constructed by the Plaintiffs was in a dilapi dated condition and that they had rebuilt the shop. It was denied that the goods in the shot, belonged to the plaintiffs. The Municipal Committee agreed with the other two defendants in alleging that these two defendants were in fact not servants but sub‑tenants and that the Municipal Committee had on coming to know of the sub‑tenancy, cancelled the lease in the plaintiffs' favour. The Municipal Committee also pleaded that no suit could re filed against them as they had not been served with a notice under section 49 of the Punjab, Municipal Act. Some preliminary issues were, framed, beat before, they were decided the plaintiffs' counsel made a statement giving up the Municipal Committee as a defendant. After this the other two defendant who are now the only defendants in the suit, objected that the Municipal Committee was a necessary party to the suit which should be dismissed on account of non‑joinder. The learned civil judge, who tried the suit, dismissed it with respect to the prayers for a declaration and for possession of the shop in dispute. The rest of the reliefs in the suit he proceeded to try. The plaintiffs appealed against the dismissal of the suit in respect of possession and declaration but the appeal was dismissed and they have filed the present second appeal. The sole question before me is whether the Municipal Committee is a necessary party. The definition of "necessary party" as given in Thakar Hari Ram v. Central Government through Secretary Commerce Department, Delhi (A I R 1941 Lah. 120.) is a party in whose absence no effective decree can be granted in a suit at all. The distinction between a proper and a necessary party is that whereas proper parties are parties whose presence is necessary for the final adjudication of all matters in dispute, necessary parties are those in whose absence an effective decree cannot be passed at all. This distinction is recognised in Order I rule 10, C. P. C. which refers to parties who ought to have been joined and those whose presence is necessary for final adjudication of the matters in dispute. So what I have to determine is whether no effective decree could be passed in the absence of the Municipal Committee, Two reliefs had been asked for in respect of which the Municipal Committee was considered necessary by the trial Court, declaration and possession. I consider that the relief' of declaration is merely an addendum to the other which is the main relief. If the plaintiffs can get possession they will have all the relief they need and at the same time if they get possession the defendants can have no valid objection that the relief of declaration should not be granted, I will, therefore, consider the matter only with respect to the relief of possession of the shop. With respect to this relief can it be said that if the plaintiffs are granted a decree only against the defendants, the decree cannot be effective ? The worst position can be that it will be a decree against a tenant alone without impleading his landlord. Cannot the plaintiffs get such a decree executed ? There is no legal bar to the execution of the decree. All that can be said is that if the Municipal Committee so wish, they can apply under Order 21, rule 100, C. P. C. alleging that they have been illegally dispossessed and that their possession may be restored. The meaning of the word "possession" as used in Order 21 rule 100 has been considered in Brajabala Devi v. Gurudas Mundle (I L R 33 Cal. 487.) and Mancharam v. Fakirchand (I L R 25 Bom. 478.). According to these authorities it covers the case of constructive possession also. It is not necessary to discuss the matter in detail for that interpretation does not seem to be open to serious argument I do not, with all respect agree with the learned Judges who decided I L R 33 Cal. 487 that a person whose tenant has been dispossessed in execution of a decree against the tenant alone cannot apply for restoration of possession and I prefer to follow I L R 25 Bom. 478 wherein the contrary proposition was laid down. If I were to follow I L R 33 Cal.

487. I would have to hold that the Municipal Committee in this case could be affectively dispossessed without its being impleaded as a party by a decree against the tenants alone and without there being any remedy open to it except a suit for possession. I would in such a case have to pause before allowing the suit to proceed without the Municipal Committee being joined as a party. Although the Municipal Committee would be entitled to apply for restoration of possession it cannot be said that no effective decree can be passed at all. It is not even necessary that the Municipal Committee may apply for restoration of possession if the plaintiffs succeeded in getting a decree and ejecting the defendants. In fact, the Municipal Committee had, after the decision of the preliminary issue by the Senior Civil Judge, passed a resolution on the 3rd of March 1953 accepting Muhammad Sharif plaintiff as their tenant, a copy of which is on the file. I may note here that in the plaint the plaintiffs just mentioned the acceptance of the defendants as tenants by the Municipal Committee. The only acceptance of the defendants as tenants is by a note and an order of the Secretary of the Committee. I do not know of any power with the Secretary of a Municipal Committee for cancelling the lease of one person or for letting out the property to another person. A lease must at the same time be in the form of a deed executed in accordance with section 47 of the Punjab Municipal Act or section 6 of the Executive Officers Act. No such deed has been executed in this case. In any case a decree can be passed in this suit and it can be executed though, whether the plaintiffs are really benefited or not, may depend upon the action that the Municipal Committee takes in this behalf. The decree may result in granting good relief to the plaintiffs. The best at which you can put the case for the defendants is that the decree is liable to be defeated at the instance of one who is not made a party. Still I will say that such a person cannot be regarded as a necessary party to the suit. The liability for a decree to be rendered ineffective at the instance of a person is not synonymous with the decree being wholly ineffective. That person may or may not choose to take action and in this particular case the Municipal Committee has already passed a resolution that they now accept one of the plaintiffs as their tenant. The Municipal Committee may very reasonably take up the attitude that the question as to who is in fact their tenant may be decided between the rival claimants by the Civil Court and that they have no particular interest in any party. Order I rule 9, C. P. C. provides that no suit shall fail for non‑joinder of parties. No doubt that rule cannot be, invoked in case where the proper constitution of the suit requires a person to be impleaded and without his presence relief cannot be granted in the suit. Suits for partition and for accounts of partnership are examples of such cases. But it should be understood that the dismissal of a suit for non‑joinder is to be based solely on the inability of the Court to grant relief. In such a case the Court says to the plaintiff : We are unable to help you". But whenever the Court can help the plaintiff it should not dismiss the suit for non‑joinder. I have discussed the matter in the light of the definition of necessary party. There are abundant authorities for the proposition that in a suit for possession against a person who claims to be the tenant of another, it is not necessary to implead the alleged landlord though there are authorities for the contrary proposition too. The authorities in favour of the proposition that such a person is not a necessary party are : Secretary of State v. Dhirendra Nath Roy (A I R 1934 Cal. 187.), Ka'shi v. Sada'shiv Sakhara m Shet (I L R 21 Bum. 229.), Mst. Bhagwati Kuer v. Jagdan Sahay (A I R 1921 Pat. 260.) and Poonit Singh v. Kamal Singh (A I R 1924 Pat. 172.) For the opposite rile may be cited Subbaraya Sastri v. lMukkamala Seetha Ramaswami (A I R 1933 Mad. 604.). With great respect I prefer to follow I L R 21 Bom. 229, a case which is followed in a number of subsequent cases, the facts of which were very much similar to the present case, and which was not disapproved but distinguished in A I R 1933 Mad.

664. In I L R 21 Bom. 229 both the plaintiff and the defendant claimed to have derived their titles from the Government. It was held by Farran C. J. and Parsons J. that the plaintiff was entitled to maintain a suit for possession of the land without impleading the person under whom the defendant claimed to be holding. In A I R 1933 Mad. 664 the learned judges said about this case: "This was a peculiar case where both parties claimed under the Government. It was held that the Government was not a necessary party. It was really a case of priority of title." About the present case too it may be said that it is a case where both the parties claimed under the Municipal Committee and that it is really a case of priority of title. It is to be observed that the plaintiff is not at all asking for dispossession of the Municipal Committee. Really the reason for holding that the landlord would be a necessary party to a suit in A I R 1933 Mad. 664 was the fact that the landlord would be dispossessed. A reference was made to Dicey on Parties to an action and it was pointed out that the landlord was one of the persons who has a right to defend a suit for ejectment. If he were not allowed to defend, he would be pre judiced and it would be an injury to him. In the present case no such situation arises. All that the plaintiffs claim is that they should be allowed a position of tenant under the Municipal Committee. Of course if the Municipal Committee intend to resist their claim and regard the possession of the present defendants as their possession, it would still be open to them to apply under Order 21, rule 100, C. P. C. if the decree for possession be executed against the defendants. However, as already pointed out, they need not do so. From what I said while considering the application of definition of necessary party to the facts of the present case it should be clear that I do not regard the landlord a necessary party to suit for possession against the defendant. But the present case can be placed on a higher footing for them contest is between two claimants to tenancy under the same landlord and the plaintiffs seek possession only under the landlord of the defendants. There is another and a very important aspect of the case. The plaintiffs alleged that the defendants were their servants. The defendants, on the other hand, pleaded that they were their sub‑tenants, a statement which the Municipal Committee also accepted. Assuming that the defendants are the sub‑tenants of the plaintiffs, is any other person at all a necessary party to the suit ? Not only is any other person not a necessary party to any suit where a person seeks ejectment of his own tenant, but ordinarily any other person should not be impleaded at all. In such a case all that the plaintiff has to allege in the plaint is that the defendant is his tenant and that he is entitled to get it possession according to the terms of the tenancy. Under section 116 of the Evidence Act, a tenant is debarred from disputing the title of his landlord. In a suit by the landlord he is bound to surrender possession and it does not lie in his mouth to say that any other person is a necessary party to the suit. If, on the other hand, the defendants are not sub‑tenants, but servants, as the plaintiffs allege, the position is much the same. They are licences. Their possession is the possession of the plaintiffs. They are bound to restore possession to the plaintiffs and in such a case too no question of impleading any other party arises. Whether the defen dants be sub‑tenants or the servants, their duty is to restore possession in accordance with the terms of the lease or licence. Really as a licence they have custody only which they have improperly turned into possession. I have deliberately refrained from referring to the provi sions of the Punjab Urban Rent Restriction Act in connection with the alleged tenancy for I have not deemed it necessary. As a result the appeal is accepted. The respondents will be liable for the costs of the plaintiffs in this Court as well as in the lower appellate Court. Costs in the original Court will be costs in the cause. The case will now go back to the trial Court in order that the whole suit may be decided in accordance with law. K. M. A. Appeal accepted.