Co-owner can maintain suit for possession against trespasser or tenant without impleading other co-owners as necessary parties.

The predecessor-in-interest of the respondents (plaintiff) filed a suit for possession and recovery of occupation charges against the appellant (defendant) regarding a portion of a double-storeyed building

The plaintiff claimed exclusive title via her husband’s Will; however, the defendant contended that the property was jointly owned by other co-sharers (Raj Kumar and Rakesh Kumar) and challenged the suit’s maintainability due to non-joinder of necessary parties

The Trial Court dismissed the suit solely on the ground of non-joinder of these co-sharers

On appeal, the First Appellate Court allowed the plaintiff’s applications under Order 1 Rule 10 CPC (to implead co-sharers as proforma defendants) and Order 6 Rule 17 CPC (to amend the plaint), subsequently remanding the case for trial afresh

The defendant appealed this remand order under Order 43 Rule 1(u) CPC

1. Whether a suit for possession and recovery of damages filed by one co-owner is maintainable without impleading other co-owners?

2. Whether the First Appellate Court erred in allowing the impleadment of parties and amendment of the plaint at the appellate stage and remanding the matter?

Order 1 Rule 9 CPC, which provides that no suit shall be defeated by reason of mis-joinder or non-joinder of parties, except in the case of a "necessary party"

Order 1 Rule 10(2) CPC, authorizing the Court to add parties at any stage to ensure complete adjudication

Shri Ram Pasricha v. Jaganath (1976) and Om Prakash v. Mishri Lal (2017), which stipulates that a co-owner is as much an owner of the entire property as any other co-owner and can maintain a suit for eviction/possession against a tenant or trespasser without joining other co-owners

Vasantha v. Rajalakshmi (2024), confirming that a plaint can be amended at any stage, including the appellate stage

The High Court observed that the Trial Court committed a legal error by dismissing the suit for non-joinder.

Applying the two-fold test from Aliji Momonji & Co. v. Lalji Mavji, the court determined that while other co-owners might be "proper parties," they are not "necessary parties" in a possession suit against a trespasser because an effective decree can be passed in their absence

Since a co-owner has a legal right to defend the joint property, the suit was maintainable from its inception

The Court reasoned that the First Appellate Court’s decision to allow impleadment and amendment was a valid exercise of jurisdiction intended to settle the controversy completely and avoid technical dismissals

Furthermore, a dismissal based on non-joinder does not constitute res judicata as it is not a decision on the merits

It held that a co-owner can independently maintain a suit for possession against an unauthorized occupant without joining other co-owners

The impleadment of co-sharers as proforma defendants and the corresponding amendment to the plaint were deemed necessary for a final adjudication

The Trial Court was directed to decide the matter expeditiously, no later than October 31, 2026