The questions that arise for determination In this revision application are the powers of an appellate Court to add certain persons, who were not parties to the suit in the trial Court, as respondents in appeal and that whether in the present case the appellate Court was justified in adding opponents Nor. 5 to 21 herein as parties to the appeal,
2. The applicants before me were the plaintiffs in the trial Court. The suit filed by them was for declaration, possession and mesne profits in respect of certain lands against the present opponents Nos, 1 to 4 only. The case of the applicants was that the suit lands originally belonged to their father Qaisar Khan who was, in the year 1886 dispossessed by the Government without any compensation for the purpose of forest I that some time in the year 1969 these lands were deforested and converted into agricultural land and put to auction by opponents Nos. 1 to 4 herein, though on such conversion the plaintiff as heirs of said Qaisar Khan were entitled to resume Its ownership and possession. Hence the suit for declaration, possession and mesne profits.
3. During the pendency of the said suit opponents Nos. 5 to 9 herein made an application under Order 1, rule 10, C. P. C. To be joined as parties to the suit, their case being that the suit lands originally belonged to their predecessor-in-title Ikhtiar Wazir and that on the conversion of the land from forest into agricultural land they were, as heirs of said Ikhtiar Wazir entitled to the same. This application was dismissed by the trial Court by his order dated 10.2-1971 on the ground that the applicants had failed to show any right or interest in the suit lands. No appeal was filed against this order. The suit proceeded and was decreed in favour of the applicants herein on 3-4-1971. Against the decree, the opponents Nos. 1 to 4 herein filed an appeal and during its pendency, the opponents Nos. 5 to 21 herein made an application under Order 1, rule 10, C. P. C. Before the appellate Court on 17-6-1971 for being joined as parties "in the suit," though the suit had been to the knowledge of the opponents Nos. 5 to 21 disposed of as aforesaid on 3-4-1971. In support of their application the opponents Nos. 5 to 21 herein contended that suit lands when acquired by the Government is 1886 for forest purposes, belonged to their ancestors and not to the plaintiffs' father as alleged by them in the suit, which was decreed by the trial Court. The learned District Judge by his impugned order dated 24-7-1971 allowed this application and ordered that these opponents be joined as parties "to contest the judgment and decree" presumably as respondents in the appeal.
4. Mr. Maroof Ail Khan, the learned counsel for the applicants herein contended that the powers of an appellate Court to join a party to the appeal are those provided for under Order XLI, rule 20, C. P.
C. And that notwithstanding the provisions contained in section 107, C. P. C. The power of the appellate Court is confined only to add only that person as party to the appeal, who was a party to the proceedings in the trial Court and had been omitted to be Implead as a party to the appeal.
5. In support of his argument Mr. Maroof A.I Khan referred to decisions reported in AIR 1925 All. 768 and AIR 1929 Bom. 393. These decisions no doubt support Mr. Maroof A.I Khan. On further examination 1, however, find that there are several other decisions in which a contrary view has been taken, and the more preponderant view is that the language of Order XLI, rule 20, C. P. C. Does not show that it is exclusive or exhaustive so as to deprive a Court of any inherent power which it may possess or can exercise in special circumstances and which has been saved by section 151, C.
P. C. In United Provinces v. Atiqa Begum (1940 FC R 110) Suleman, J., observed at page 141 as follows:-- "It is contended before us that the powers of an appellate Court are restricted within the limits imposed by Order XLI, rule 20 and that the same restriction is imposed on a Court hearing a second appeal under Order XLII, C. P. C. That rule no doubt permits of making a person respondent who was a party to the suit in the original Court, and who has not been made a party to the appeal but is interested in the result of the appeal. Obviously, this rule would not apply to the present case. But the langu--age of the rules does not show that it is exclusive or exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by section 151, C. P. C.
I am not only in respectful agreement with the above observations but an inclined to think that I am bound by the same. It is, however, not necessary for me to examine this question any further inasmuch as I find that on merits the order of the District Judge cannot be sustained. I have earlier stated the applicants' case in the trial Court. The case of the opponents 1 to 4 herein and the defendants in the suit, was a complete denial of the allegations contained in the plaint and In particular denial of acqui4tion of the said lands without compensation or its deforestation or the right of any party whatsoever to make any claim on the suit lands, which presumably is also their case in appeal. Now for determination of the questions the opponents Nos. 5 to 21 herein are neither necessary nor proper parties. On the other hand their addition would enlarge the controversy in appeal by permitting them to set up an independent claim against the applicants herein and even this purpose cannot be achieved by them in appeal unless of course the appellate Court sets aside the impugned decree on the ground that the opponents Nos. 5 to 21 herein were necessary parties to the suit and remands the case back to the trial Court for a de novo trial. Since as aforesaid, these opponents are even otherwise not necessary parties to the suit as their cause of action, if any, is independent of the apple--cants' claim in the suit, I do not see how they could be added as parties to the applicants' suit as it would result in introduction of an entirely a new cause of action. The learned District Judge allowed the application only to avoid multiplicity of proceedings. It is well settled that these are not the only considerations that should guide a Court in impleading a party to the suit. Such a power is to be exercised in terms provided for under Order 1. Rule 10, C. P. C., and since these opponents were neither necessary nor proper parties it was not open to the learned District Judge to implead them as parties. If the opponents have any C claim against the applicants or the Government their remedy if any is by a separate suit only.
6. I, therefore, set aside the impugned order dated 24-7-1971 and allow this revision application with costs.