Person handing over possession to defendant cannot be necessary party.

1. The impugned order dated 22. 1997 in I.A.No.1059 of 1996 in O.S.No.172 of 1996 on the file of District Munsif s Court, Virudhunagar, dismissing the application for impleading the second petitioner herein, is challenged before this Court in this revision.

.2. The respondent herein filed the suit for permanent injunction restraining the defendant, the first petitioner herein from interfering with his possession and enjoyment of the property, claiming himself as the adopted son of Gurusamy Chettiar and Guruvammal. The defendant, the first petitioner herein disputed the alleged adoption and contended that the said Guruvammal executed a Will on 22. 1985 in favour of one Dhanalakshmi Ammal, who is the second petitioner herein and that after the death of the said Guruvammal, the second petitioner herein handed over the properties to the possession of the first petitioner after entering into an agreement of sale. During the course of trial, the first petitioner herein filed the application impleading the second petitioner as the proposed second defendant, in whose favour the Will had been executed, as a necessary party. This application has been dismissed by the Court below in upholding the objection by the respondent herein. Hence, this revision.

3. The counsel for the petitioners would strenuously contend that under Order 1, Rule 10(2), C.P.C., the second petitioner, the proposed second defendant has to be necessarily impleaded, as she is the necessary party, as the Court under the mandate to decide the title also incidentally.

4. It is further contended by the counsel for the petitioners that even according to the lower Court, the inclusion of third party as second defendant would not alter the structure of the suit and that in that context, the second petitioner Dhanalakshmi Ammal has to be impleaded as second defendant.

5. I have gone through the order under challenge, grounds and other documents and carefully considered the submissions made by the counsel for the petitioners.

6. It is to be noted that the respondent filed suit against the defendant, the first petitioner herein for a bare injunction and that the plaintiff did not claim any remedy against the proposed third party, the second petitioner herein. The above suit was posted in the list for trial on 12. 1996. The plaintiff has examined himself as P.W.1 on 112. 1996, 112. 1996 and 112. 1996. After the examination of P.W.1 is over, the first petitioner/defendant filed an application on his behalf and on behalf of the proposed third party to implead the said third party as second defendant, since it has to be established that the possession of the suit property being enjoyed by the first petitioner was handed over by the second petitioner.

.7. It was objected by the plaintiff through the counter stating that relating to the title of the property her case is that she got the title through the will and if so, she should file a separate suit and that she cannot step into the shoes of the defendant in this case.

8. The trial Court in its elaborate discussion in the impugned order observed that the third party cannot be considered to be a necessary party for deciding the main issue framed in the suit. The mere observation that inclusion of the proposed third party would not alter the structure of the suit, may not entitle the defendant to ask the Court to implead the third party as second defendant.

9. The question is, whether the second petitioner is a necessary or proper party to be joined as defendant under Order 1, Rule 10 of the Code of Civil Procedure.

10. It is settled law that the plaintiff may choose to implead only those persons as defendants against whom he wishes to proceed with. However, it is open to the Court to add, at any stage of the suit, a necessary party in order to enable the Court to effectually and completely adjudicate upon the questions involved in the suit. Thus, the question of impleadment of party has to be decided unde