JUDGMENT :

Dr. A.K. Rath, J.

This petition challenges the order dated 11.04.2016 passed by the learned Civil Judge (Sr. Divn.), Athagarh in C.S. No.24 of 2016, whereby and whereunder the learned trial court allowed the application under Order 1 Rule 10 CPC and impleaded the tenant of the plaintiff as defendant.

2. Opposite party no.1 as plaintiff instituted the suit for partition impleading the petitioner as well as opposite party nos.3 to 15 as defendants. While matter stood thus, the plaintiff filed an application under Order 1 Rule 10 CPC to implead the tenant over the suit premises as a party. The defendant nos.1, 2, 5 & 6 filed objection.

3. Learned trial court has assigned the following reasons and allowed the application:-

“The plaintiff wants to implead Bidyadhar Barik as one of the defendant in this case, since he has occupied the house over the suit land on the basis of rent. The citation relied by the counsel for the defendant has no applicability to this case as because in the case reported in 99(2005) CLT 452 the petition under Order 1 Rule 10 CPC was rejected and on the admission of the defendant nos.1 & 2 in their written statement and on other ground the Hon’ble Court has set aside the order of rejection of lower court. But in the instant case the proposed defendant is one of the tenant of the house existing over the suit land. For the interest of justice he is required to be added as a party to this case. So the petition under Order 1 Rule 10 CPC to implead Bidyadhar Barik as one of the defendant is allowed.”

4. Heard Mr.B.C. Panda, learned counsel for the petitioner, Ms. P.S. Mohanty, learned counsel for the opposite party no.1, Mr. P.K. Rath, learned counsel for the opposite party nos.2 to 5.

5. Mr. Panda, learned counsel for the petitioner submits that in a suit for partition, the tenant of the plaintiff is neither necessary nor proper party to the suit. Mr. Rath, learned counsel for the opposite party nos.2 to 5, submits that a tenant of a house has no direct interest over the subject matter of dispute.

6. Per contra, Ms. Mohanty, learned counsel for the opposite party no.1, supports the impugned order. She submits that the tenant is occupying a portion of the house. She is a proper party to the suit.

7. The question does arise as to whether a tenant is a necessary or proper party to the suit ?

8. Order 1 Rule 3 CPC provides thus -

“3. Who may be joined as defendants.-All persons may be joined in one suit as defendants where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.”

9. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia Vrs. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786, the apex Court held that a necessary party is one without whom no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.

10. In Razia Begum Vrs. Sahebzadi Anwar Begum and others, AIR 1958 SC 886, the apex Court held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to movable or immovable property.

11. In a suit for partition, the plaintiff is bound to implead as defendant :

(i) the heads of all branches;

(ii) females who are entitled to a share on partition;

(iii) the purchaser of a portion of the plaintiff’s share, the plaintiff himself being a coparcener;

(iv) if the plaintiff himself is a purchaser from a coparcener, his alienor. The above are necessary parties an