ORDER
Ashwini Kumar Sinha, J.
1. Civil Revision No. 1219 of 1981 and Civil Revision No. 1221 of 1981 arise out of the same order. They have been heard together and are being disposed of by this common judgment.
2. Opposite Parties 1 and 2 filed title Suit No. 121 of 1975 in the Court of Subordinate Judge. Begusarai, against opposite parties 3 to 15 for partition of schedules A. B and C lands and also for carving a separate party of the plaintiffs by a pleader commissioner and thereafter for passing preliminary decree. It is desirable to mention just here that the petitioners in the instant two revision applications were not made parties in the title suit.
3. The aforesaid two revision applications are directed against order dated 2nd July. 1981 by which the applications filed by the petitioners of each case for being added as intervener-defendants have been rejected by the court below. Thus, the two sets of applicants who claimed to be added as intervener-defendants in the aforesaid title suit have filed separate revision applications. The court below by its impugned order, held as follows. Admittedly, there was a collectorate partition case 19 of 1926 and that two tauzis viz. 10038 and 10039 were carved out of the original tauzi 5005 having many co-sharer landlords. The plaintiffs and defendants of that suit were given delivery of possession of the lands of tauzi 10038 which was carved out of original tauzi 5005. The plaintiffs’ father Ram Rachha Singh and the father of defendants second set Bhola Singh were applicant 9 which was an admitted fact. In that collectorate partition case. Raja Ram Singh (who is petitioner in Civil Revision No. 1219 of 1981) and late Shri Thakur Prasad Singh father of second set of intervener-defendants i. e. father of Ram Nandan Singh and Ram Naresh Singh) were applicant 10. These facts are admitted. Thakur Prasad Singh (father of the second set of intervener-defendants) and Raja Ram Singh (first set of intervener-defendants) opted to get joint patti of the lands in their shares of original tauzi 5005 and a separate tauzi 10039 was carved out accordingly. The delivery of possession with regard to the lands of tauzi 10038 was also given to the plaintiffs and the defendants. The present petitioners (who claim to be added as intervener-defendants) did not file any document to show as to when they came in joint possession of tauzi Nos. 10038 and 10039 when once partition took place. The defendants 1st party of the present suit (Title Suit No. 121 of 1975) filed a certified copy of the plaint of one Title Suit No. 18 of 1948. which shows that Shri Raja Ram Singh (petitioner in Civil Revision No. 1219 of 1981) the first set of intervener-defendant and Shri Thakur Prasad Singh (father of second set of intervener-defendants) had filed a title suit against one Matukdhari Singh one of the co-sharers landlords of orginal tauzi 5005. This shows that a separate tauzi 10046 had been prepared in the name of Matukdhari Singh and by this Title Suit No. 18 of 1948, the petitioner of Civil Revision NO, 1219 of 1981 and the father of the petitioners in Civil Revision No. 1221 of 1981 had pleaded earlier partition and were claiming the house belonging to Matukdhari Singh as having fallen in their tauzi 10039.
4. The court below, on a consideration of materials, came to the following conclusion:–
“From the discussions made above it transpires that the tauzi 10038 was allotted to the plaintiffs and defendants second set in collectorate partition 19 of 1926 and there is no proof that the intervener-defendants have derived any title by operation of law or by transfer or by any subsequent decree of the court. I, therefore, find that the intervener-defendants have got no interest in the suit land and no purpose shall be served if they are made parties in this suit. I, therefore, reject the petitions of both sets of intervener-defendants.”
5. The learned counsel for the petitioner (in Civil Revision No. 1219 of 1981) contended firstly, that the petitioner has still some interest in some of the properties in tauzi 10038 and hence, he ought to have been added as intervener-defendants in the suit and the finding of the court below to the effect that the intervener-defendants have got no interest in the suit land was only an inference drawn by the court below on fact and law both and hence this court could interfere with that finding given by the court below; secondly, it was contended that the petitioner should have been added as an intervener-defendant in the title suit in question to avoid multiplicity of suits.
6. The learned counsel appearing for the petitioners (in Civil Revision No. 1221 of 1981) besides adopting the argument advanced by the learned counsel appearing for the petitioner in Civil Revision No. 1219 of 1981 further contended that the order under revision is vitiated for non-consideration of the documents filed on behalf of the intervener-defendants which, according to the learned counsel for the petitioners, prima facie show that all the lands of touzis 10038 and 10039 are still in joint possession of the parties. It is desirable to state here that the learned counsel for the petitioner in Civil Revision No. 1219 of 1981 did not contend as was contended by the learned counsel for the petitioners in Civil Revision No. 1221 of 1981.
7. In order to appreciate the contentions raised on behalf of the petitioners in both the civil revision applications, it is essential to give a few more relevant, facts. Admittedly, the plaintiffs and the defendants of the title suit in question and the petitioners (who sought to be added as intervener-defendants in the suit) come from the common ancestor Madho Singh, Shorn of other details, as already stated above, the plaintiffs, who are descendants of late Ram Rachha Singh, brought the partition suit in question for partition of lands of tauzi 10038 alone which according to the plaintiffs, was carved out of the original tauzi 5005 after collectorate partition case 19 of 1926. The first set of intervener-defendant. Raja Ram Singh (petitioner in Civil Revision No. 1219 of 1981) is the son of late Hari Narain Singh who came through late Munshi Singh and the second set of intervener-defendants are the heirs of Thakur Prasad Singh, who came through Jhoti Singh. Jhoti Singh and Munshi Singh were sons of late Madho Singh.
8. On 1-9-1976. Raja Ram Singh (petitioner in Civil Revision No. 1219 of 1981) filed a petition under Order 1. Rule 10 Civil P. C. (hereinafter referred to as ‘the Code’) read with Section 151 of the Code and prayed for being added as intervener-defendant in the suit in question. To this application, the plaintiffs filed a rejoinder on 10-5-1977. The defendants second set of the suit also filed a rejoinder on 27-9-1977. Thereafter, on 24-6-1981, the petitioners in Civil Revision No. 1221 of 1981 filed an application under Order 1. Rule 10 of the Code read with Section 151 of the Code with a similar prayer for being added as intervener-defendants in the suit in question, tO this application, the plaintiffs, defendant 1 and defendants 5 and 6 of the second set filed separate rejoinders on 30-6-1981. The court below, having considered the matter and having taken into consideration the materials before it and after hearing the parties, has rejected the aforesaid two separate petitions filed by the different sets of petitioners who sought to be added as intervener-defendants in the suit in question. Hence, the present two revision application by the different sets of intervener-defendants.
9. It is well settled that where presence of a person before a court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions in the suit, such a person should be added as a party defendant. It is desirable to quote Sub-rule (21 of Rule 10 of Order 1 of the Code:
The court may at any stage of the proceeding, 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 the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before 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”. (underlining is mine). Thus, a perusal of Sub-rule (2) of Rule 10 of Order 1 makes it clear that it requires the Court to add a party not only as a matter of course but on the given conditions where the presence of the person sought to be added is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. This finding is a condition precedent for exercise of the jurisdiction by a Court for addition of a party. These conditions mentioned in Sub-rule (2) of Rule 10 of Order 1 of the Code apply with equal force whether the application is on behalf of the plaintiff or any other person or even by an outsider without any exception.
10. It is also well settled that this is a discretionary power vested in the Court, but the discretion must be a judicial discretion and if judicial discretion has been exercised either in favour of adding a party or refusing to add a party under Order 1. Rule 10 of the Code, considering all the facts and circumstances of the case; this Court, in revision, should not interfere with the exercise of such a judicial discretion.
11. In view of these well settled principles of law in the matter of adding a party to the suit or refusing to add a party to the suit, a question arises whether in the instant case, the court below has exercised its judicial discretion on a consideration of the materials before it.
12. On a perusal of the impugned order, it is apparent that the court below has taken some materials before it into consideration and on a consideration of those materials, the petitions filed bv the intervener-defendants (who are the petitioners in the present revision applications) were rejected. Though it will bear repetition, the court below has found that admittedly, there was a collectorate partition and the two tauzis 10038 and 10039 were carved out of the original touzi 5005. It has further been found that separate pattis were carved out and the two sets of the intervener-defendants (petitioners in the instant revision applications) opted to get separate pattis and tauzi 10039 was carved out accordingly and thereafter delivery of possession as well was given to the parties. The court below has further found that the intervener-defendants have not filed any document to show ioint possession. The most vital evidence against the intervener-defendants produced before the court below was a certified copy of the plaint of Title Suit No. 18 of 1948 filed by the defendants 1st party. This certified copy of the plaint showed that the petitioner Raja Ram Singh himself and the father of the second set of intervener-defendants had filed the title suit against Matukdhari Singh, one of the co-sharer landlords of original tauzi 5005 and it was their own case that in the aforesaid collectorate partition case of 1926, another tauzi 10046 was carved out in the name of Matukdhari Singh and the plaintiff of this Title Suit No. 18 of 1948 had claimed the house belonging to Matukdhari Singh as having fallen in their tauzi 10039. The claim put forward by Raja Ram Singh (petitioner in Civil Revision No. 1219 of 1981) and the father of second set of intervener-defendants in Title Suit No. 18 of 1948 was just contrary to the claim put forward by them in the instant case. Thus, the court has considered several factors (in my opinion, material evidence) for rejecting the petitions filed by the petitioners on merit.
13. The learned counsel for the petitioners in Civil Revision No. 1221 of 1981 has contended that the joint return filed by Jhoti and Munshi (ancestors) with regard to both the tauzis, signed by Thakur Prasad Singh (father of petitioners in Civil Revision No. 1221 of 1981). Ram Rachha Singh (father of plaintiff 1) Bhola Singh (branch of Munshi) and Raia Ram Singh (petitioner in Civil Revision No. 1219 of 19811 and the Rent Rolls of 19581 (after the vesting of zamindari) in joint names of the parties (including the intervener-defendants) have not been considered by the court below and, according to the learned counsel for the petitioners, if these would have been considered, the court below would have felt satisiied that the petitioners were in joint possession of the two tauzis viz. 10038 and 10039 with the plaintiffs and the defendants. The learned counsel for the petitioners contended that non-consideration of documents by the court below, while disposing of a matter falling under Sub-rule (2) of Rule 10 of Order 1 of the Code, is a ground for interference by this Court even in a civil1 revision application and has relied upon the decisions in Shambhu Dayal v. Basdeo Sahai (AIR 1970 All 525 (FB)). Prabir Ram Borooah v. Albert David Ltd., Calcutta (AIR 1957 Assam 120) and Vellakutty v. Karthya-yani (AIR 1968 Ker 179). The cases relied upon bv the learned counsel for the petitioners, in order to persuade this Court to interfere with the impugned order on the ground that the documents were not considered by the court below, do not support the petitioners’ contention as would appear on a perusal of the facts of those cases that those were cases either involving a case falling under Section 10 of the Code or one under Order XXXIX Rule 1 of the Code and on the facts of those cases, the Court interfered with the orders before it.
14. In my opinion, this Court sitting under Section 115 of the Code cannot interfere with the order under revision on the ground that some of the documents have not been considered by the court below. This Court, in my opinion, has no power of revision under Section 115 of the Code in a case where the court below commits an error of law in not considering some items of evidence. The utmost that can be said is that non-consideration of some of the items of evidence, in the instant case, is an error of law and this Court, in my opinion, has no power of revision under Section 115 of the Code, where the court below commits only an error of law. Thus, the contention raised by the learned counsel for the petitioners that the order needs to be interfered with on the ground of non-consideration of certain items of material evidence has no force.
15. On a perusal of the order under revision, it is apparent and obvious that the court below, while exercising its judicial discretion, did not find the presence of the intervener-defendants to be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit and I am satisfied that the Court below has not acted illegally in the exercise of its jurisdiction in rejecting the petitioners’ applications for being added as intcrvener-defendants in the suit.
16. There is another aspect of the matter. The present suit is between the plaintiffs and the defendants and as between the parties to the suit i. e. the plaintiffs and the defendants, there is no question and/or issue that anybody other than these plaintiffs and the defendants has any interest in any of the properties in the suit. The issue that arises between the plaintiffs and defendants, as the court below has thought of, does not require presence of anybody else for effective, complete and final adjudication of the issues involved in the suit.
17. There is yet another aspect of the matter. The intervener-defendants (petitioners before me) are claiming joint possession over every inch of land falling in both the tauzis viz. 10038 and 10039 and the present partition suit is limited to the partition of the land falling in tauzi 10038 alone. Hence, in my opinion, if the intervener-defendants’ case was to be allowed, then the scope of the suit was automatically enlarged and by necessary implication unless tauzi 10039 was also added in the schedule to the plaint, the rights of the intervener-defendants/petitioners could not be decided in the present suit. It is well settled that no party can compel the plaintiff to add or subtract the disputed plots. Thus, from this point of view also the petition of the intervener-defendants/petitioners could not be allowed by the court below (though this aspect of the matter was not argued before the court below).
18. As I have already stated above, the exercise of power vested in the court under Order 1. Rule 10 (2) of the Code is discretionary and it is a judicial discretion which must be based upon sound principles of law. I am satisfied on a careful perusal of the impugned order and on a careful consideration of the various submissions advanced by the learned counsel for the petitioners that the order under revision does not suffer from any jurisdictional error and does not need to be interfered with. If the intervener-defendants, on their own case, had to file a separate suit, it cannot be avoided. It is true that in an appropriate case, if the presence of a party is necessary to settle all the issues involved in the suit completely and effectually, the party should be added and the multiplicity of suits should be avoided, but on the facts of the present case, the contention raised by the learned counsel for the petitioner in Civil Revision No. 1219 of 1981 that the order needed to be interfered with to avoid multiplicity of suits has no force.
19. In the result, both the applications fail and are dismissed, but in the circumstances of the case, there will be no order as to costs.
