Hasen Ali and Others v. Solimuddin S. K. and Another
1982-11-10
K.N.SAIKIA
body1982
DigiLaw.ai
This civil revision assails the order dated 9.6,81 passed by Munsiff No. 1, Dhubri in Title Suit No. 378/80 rejecting the petitioners' application to imp lead them in the suit as party defendants. The suit is between the respondent No. 1. Solimuddia SK, as plaintiff and the State of Assam, as the defendant for a decree directing the State of Assam to issue orders in favour of the plaintiff (respondent No. 1) for allowing them to cut and remove 26 Sal trees and for releasing 13 felled trees from the land under Khatian No. 102 of village Jaipur Part I under Bilasipara Circle on declaration that the said trees are the absolute properties of the plaintiff. The Khatian is in the name of the plaintiff-respondent No. 1 in respect of 17B. OK. 10 Lechas of land in Digs Nos. 238, 279, 334 and 336 and the aforesaid trees are on that land. The petitioners applied for their being imp-leaded as defendants on the ground that the land was khas land but under their possession, whereas the plaintiff-respondent No. 1, who obtained a khatian, was not in possession of that land and that he obtained the khatian by misrepresentation of facts. The learned Munsiff, after hearing both the sides, rejected the application observing that the certified copies of the khatian produced by the plaintiff-respondent showed his possession and as such the land could neither be khas being under khatian or there was material to show that the land was under possession of the petitioners. Mr. P.N. Goswami, the learned counsel for the petitioner, submits that the petitioners having been directly interested in the Sal trees standing on the land under their possession the learned Munsiff erred in refusing to implead them. Mr. B. Bar in the learned counsel appearing for the plaintiff -respondent No. 1, submits that the land having been covered by the Khatian issued in his name it could no longer be khas land and the Sal trees having been upon the land covered by the khatian it was the plaintiff-respondent No. 1 alone who could be interested and not the petitioners and as such, the Seamed Munsiff committed no error in rejecting the petitioner's application.
Under Order 1 Rule 10 (2) of the Civil Procedure Code-the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. It is, therefore, necessary to scrutinize the nature of the petitioners' right vis a vis the suit. On their own showing the petitioners have not obtained any khatian nor is there any statement to the effect that they have applied for any khatian. Their statement is only that they are in possession. Mere possession, even if true, of Government khas land, does not create any right vis a vis the State until ;the State settled the land with him or them. Till such a settlement is made his right may remain inchoate or contingent depending on the future event of settlement. In the instant case the plaintiff-Respondent No. 1 having already obtained settlement in respect of' the land, it cannot also be said that the petitioners prima facie have any inchoate or even contingent right until that khatian is cancelled. This is not a suit for cancellation of the khatian. The suit is for declaration of entitlement to the standing as well as felled Sal trees. So far this dispute is concerned the petitioners cannot be regarded as necessary parties in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
The suit is for declaration of entitlement to the standing as well as felled Sal trees. So far this dispute is concerned the petitioners cannot be regarded as necessary parties in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In Razia Begum vs. Sahebzadi Anwar Begum, AIR 1958 SC 886 it had been ruled that the question of addition of parties under Rule 10 of Order I of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in S. 115 of the Code. It has further been ruled that in a suit relating to property, in order that a person may be added as a party, he should have a direct interest, as distinguished from a commercial interest, in the subject-matter of the litigation. Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. In the instant case the subject matter of the suit is a declaration of entitlement in favour of the plaintiff-respondent No. 1 of entitlement to the Sal trees standing as well as felled by them. These may either be decided in favour of the plaintiff or against him. When so decided, presence of the petitioners, who claim to be in possession but admittedly on khas land without any khatian, will not be necessary in order to enable the Court effectually and completely to adjudicate upon the controversy. Viewing from another angle the petitioners cannot be said to have direct and non-commercial interests.
When so decided, presence of the petitioners, who claim to be in possession but admittedly on khas land without any khatian, will not be necessary in order to enable the Court effectually and completely to adjudicate upon the controversy. Viewing from another angle the petitioners cannot be said to have direct and non-commercial interests. Unless they acquire a khatian in their favour there cannot be any question of their claiming any direct right over the trees and, therefore, their interest in the trees, if any, is inchoate and contingent to khatian being issued in their favour. This is not a suit where the right to the khatian is at issue. Under the above circumstances it cannot be said that the Impugned order suffers from any error of jurisdiction. As has been observed in Sher Singh vs. Joint Director of Consolidation, AIR 1978 SC 1341 , it is well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts, if a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under Section 115 of the Civil Procedure Code to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the court to try the dispute itself this particular case we do not find any error of jurisdiction committed by the learned Munsiff. This application is bound to be rejected. The stay order granted on 5.8.81 stands vacated. Under the facts and circumstances of the case I make no order as to costs. Send down the records forthwith.