In Smt. Baby Devi v, State of Bihar and others, Patna High Court's Justice Arun Kumar Jha set aside the order dated March 26, 2018 passed by the Munsif-II, Sadar, Bhagalpur in Title Suit No. 109 of 1993 because it could be sustained. As a consequence, the Court allowed the petition filed by the petitioner under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908. It directed the trial court to implead the intervenor-petitioner as defendant in Title Suit No. 109 of 1993.
Section 151 of the Code deals with the inherent powers of Court. It states that "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
Order I of the First Schedule of the Code deals with the Parties to the Suits.
The Rule 10 under Order I of the Code deals with "Suit in name of wrong plaintiff", "Court may strike out or add parties" and "Where defendant added, plaint to be amended" subject to the provisions of the Section 22 of the Limitation Act, 1963. It states that "Where a defendant is added, the plaint shall,
unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies
of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the
original defendant".
The petition was filed in the High Court because the petition filed under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 for impleadment of the petitioner as defendant in the title suit was rejected by the Munsif-II, Sadar, Bhagalpur.
The Title Suit No. 109 of 1993 was filed by the private respondents who are Trustees of one Pachrukhi Goshala at District-Bhagalpur against the defendants, the State of Bihar and other authorities as well as private parties, seeking following relief(s):- (i). For declaration that Pachrukhi Goshala is the rightful owner and is in possession of the suit land through its trustees and survey entry in the name of defendants is illegal. (ii). For declaration of revisional survey entry to be wrong, inoperative and void. (iii). Permanent injunction against defendants-1st party from distributing the suit land treating as Government land through purcha. (iv). The cost of the suit and other relief(s) which the court may think fit and proper be awarded to the plaintiff. The petitioner claimed her right, title and possession over one acre and 60 ½ decimal of land of khesra no. 80, khata no. 307 out of total area of 03-acre 76 decimal.
The petitioner had purchased the part of land of khesra no. 80 under khata no. 307 having area one acre 60 ½ decimal through registered sale-deed dated May 14, 2015 along with other land from one Vijay Chandra Das and got mutated her name in serista of State of Bihar vide mutation appeal no. 44/2015-16 dated December 9, 2016. After the mutation, the petitioner has been regularly paying the rent and obtaining rent receipts. The Circle Officer, Shahkund, Bhagalpur issued land possession certificate in the name of the present petitioner. The demarcation was also done by the Circle Officer, Shahkund. The vendor of the petitioner purchased the land through registered sale deed dated November 19, 1958 from one Rama Kant Mishra, who purchased the land on September 19, 1940 through registered sale-deed from one Brij Mohan Lal Das. The execution of sale-deeds shows continuous and peaceful possession on the suit property of khesra no. 80, khata no. 307 since 1940 either of the vendors or the petitioner herself. Therefore, it was claimed that the petitioner is the absolute owner of the suit land.
The suit land of Title Suit No. 109 of 1993 pertains to Mouza-Fatehpur, Anchal-Shahkund, District-Bhagalpur bearing khata No. 307 Khesra Nos. 96, 191, 192, 725, 245, 568, 567, 704 and 80 having area in acres and decimals as follows: 3.48, 2.83, 2.79, 7.45, 28.19, 1.59, 2.69, 2.30, 3.76 – total area 55.08 acres. The claim of the petitioner is on 01 acre 60 ½ decimals of khesra no. 80 of khata no. 307.
The counsel of the petition submitted that the Bhagalpur court committed error in not considering the fact as well as law on the point that intervenor-petitioner is a necessary party because she is a bonafide purchaser for part of suit land and has also got her name mutated in the Register-II. Land possession certificate has been issued to her with order of demarcation and she has been paying the rent to the State of Bihar. The petitioner, being rightful owner having title and possession of the part of suit land, is not only a proper party rather she is a necessary party. But, by rejecting the prayer for impleadment of the petitioner, the learned trial court has unnecessarily created complication in the matter and if any final judgment is passed in future in absence of the petitioner, it will affect the right, title and possession of the petitioner which would cause irreparable loss to her and at the same time compel her to file another suit for enforcing her right.
The petitioner's counsel relied on the decision of the High Court in the case of Gauri Shankar Pathak v. Shankaranand Upadhyay (2011) wherein the Single Judge allowed the petition of a lispendens transferee for his impleadment as party respondent in the appeal in view of the decision of Supreme Court in the case of Amit Kumar Shaw v. Farida Khatoon (2005). He also relied on the decision of the High Court in the case of Md. Kamaluddin v. Laxmi Devi (2014), wherein the Single Judge held that position of a person on whom any interest has devolved on account of a transfer during pendency of a suit or a proceeding is similar to the position of an heir or legatee of a party who died during the pendency of the suit or proceeding and transferee could not be turned away when he applies for being added as a party in the suit. The view of the Single Judge was based upon the decision of Supreme Court in the case of Thomson Press (India) Ltd. v. Nanak Builders and Investors Private Limited (2013).
The High Court observed: "the discretion of the court under Order 1 Rule 10(2) of the Code is limited and such discretion could be exercised even against the wishes of the plaintiff only in case a party is found to be a necessary or proper party. Thus, the courts can order for impleadment even against the wishes of the plaintiff if a party has a direct and legal interest in the subject matter of the property."
Supreme Court has held that ‘necessary parties’ are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings. On the other hand ‘proper parties’ are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person. This was held in the case of Kasturi v. Iyyamperumal (2005).
The Court has observed that "a necessary party is one without whom no order can be made effectively and 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" in Udit Narain Singh Malpaharia v. Addl. Member Board of Revenue (1963).
In the case of Razia Begum v. Sahebzadi Anwar Begum (1958), the Supreme Court has held that in a suit relating to property in order that a third party may be impleaded, he/she should have a direct or legal interest in the subject matter of the litigation as distinguished from a commercial interest. Legal interest so interpreted means that the result of the suit would affect the third party illegally.
In Smt. Baby Devi v, State of Bihar, the petitioner claims her right, title and possession over a part of suit property which has been filed challenging the entry in revisional survey entry khatiyan. It is true that neither the vendor of the petitioner nor the petitioner herself have been mentioned in the khatiyan entry nor vendor was made party by the plaintiff but there could be no denial of the fact that the claim of the intervenor-petitioner on a portion of suit property is based upon registered sale deeds dated September 19, 1940 and November 19, 1958 and the same cannot be simply brushed aside. It is trite to say that khatiyan entry doe not create or extinguish any right. So, the petitioner has been able to show substantial interest in the suit property and she could also claim certain relief(s) against the plaintiff and defendants. Further, any order or decree passed by the court would not be an effective decree in absence of the petitioner herein.
The High Court drew on Supreme Court's judgement in the case of Sumtibai v. Paras Finance Co. Partnership Firm (2007) besides several other decisions wherein it was held that a party having a semblance of interest in the suit property could be impleaded as intervenor in the suit. Therefore, Justice Jha concluded that the petitioner is a necessary party who needs to be impleaded as one of the defendants in Title Suit No. 109 of 1993.
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