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2005 DIGILAW 129 (JHR)

UMA PADA CHOUDHARY v. PANCHANAND CHOUDHARY

2005-02-11

N.N.TIWARI

body2005
Judgment : ( 1 ) WHILE admitting this appeal, this Court had framed the following substantial questions of law:- " (i) whether in the facts and circumstance of the case the State of Bihar was a necessary party in view of the facts that the State did not itself claim any right title and interest in the suit property ? (ii) Whether, in any event, the plaintiffs relief relating to the declaration of title and confirmation of possession would have been considered even in absence of order of the circle Officer?" ( 2 ) NOTICE was issued to the respondents, but in spite of service of notice, nobody appeared and therefore this appeal has been taken up for hearing in absence of the respondents. ( 3 ) THE Courts below concurrently held that the plaintiffs appellants suit is bad for non joinder of necessary party and no relief can be granted in absence of the said party. ( 4 ) THE appellants were the plaintiffs. They filed Title Suit No. 55/80 in the Trial Court praying relief for declaration of title and confirmation of possession as also for declaration that the order of eviction passed by the circle Officer in Revenue Miscellaneous Case no. 3/1979-80 dated 18-8-79 is wholly without jurisdiction and for injunction, restraining the defendants from dispossessing the plaintiffs from the suit land pursuant to the order of the Circle Officer. The plaintiffs case was that the father of the respondents Satish chandra Choudhary made a Kurfa settlement of the land in question in Baisakh 1340 b. S. corresponding to 1937 about 12 years before the enactment of Santhal Pargana tenancy Act. 1949 in favour of the father 01 the plaintiff Malindra Lal Choudhary. The said settlement was followed by delivery of possession to the settlees and payment of rent receipts right from the year of settle ment i. e. 1340 B. S. was made and on that basis the plaintiffs ancestors and thereafter the plaintiff acquired indefeasible right to hold and possess the land which accrued prior to the enactment of the Santhal parganas Tenancy Act, 1949. The said lands thereafter were converted into Dhani land from Bari land and the settlee and after his death his successor in interest enjoyed the usufruct of the said land. The said lands thereafter were converted into Dhani land from Bari land and the settlee and after his death his successor in interest enjoyed the usufruct of the said land. Further case is that the said Malindra Lal Choudhary, who was issueless, adopted the plaintiff appellant No. 1 as his son by a deed of adoption, being No. 434/1964. It was further held that after expiry of 12 year from the date of settlement the plaintiffs ancestors stopped paying Kurfa rent and thereafter remained in hostile possession of the land. The father of the plaintiff No. 1 died in the year 1968. On 19-7-1979 the sons of the settlers filed an application before the Circle Officer praying for ejectment of the plaintiffs and restoration of possession in their favour. The Circle officer on the said application passed an order dated 18-8-79 for eviction of the plaintiffs from the said holding, declaring the settlement of the land as a transfer contrary to the provision of Santhal Parganas Tenancy Act, 1949 and for restoration of possession in favour of the defendants. According to the plaintiffs, taking under advantage of the said order, the defendants started interfering with the plaintiffs possession which gave rise to the cause of action for the suit. ( 5 ) IN the trial Court summons were issued and served on the defendants, but they did not appear to contest the suit. The suit was finally heard and decided ex parte. The trial Court dismissed the suit, holding the same as not maintainable for non-joinder of the State of Bihar through the Circle Officer as a party defendant. According to the trial Court since the eviction order was passed by the Circle Office, the State of Bihar was the necessary party and in absence thereof the suit was not maintainable. The plaintiffs appellants thereafter preferred regular appeal before the District Judge, dumka, S. P. In the said appeal the respondents appeared and contested the appeal. The said appeal was ultimately heard and disposed of by the 7th Additional District judge by the impugned and decree dated 9-12-87. The learned lower Appellate Court also concluded that the State of Bihar was a necessary party and the suit was bad for non-joinder of the State of Bihar. The lower appellate Court on that ground upheld the judgment and decree of the learned trial court and dismissed the appeal. The learned lower Appellate Court also concluded that the State of Bihar was a necessary party and the suit was bad for non-joinder of the State of Bihar. The lower appellate Court on that ground upheld the judgment and decree of the learned trial court and dismissed the appeal. Aggrieved by the said judgment and decree, the plaintiffs-appellants have preferred this appeal. ( 6 ) MR. Sunil Kumar Mahto, learned counsel appearing on behalf of the appellants, submitted that the judgments and decrees of the Courts below are wholly illegal and liable to be set aside; and that the question framed at the time of admission are substantial questions of law and the same should be answered in the favour of the appellants. Regarding the first question, the learned counsel submitted that the relief has been sought against the defendants-respondents and not against the State of Bihar and there was no necessity of impleading the state of Bihar as a defendant in the suit. Learned counsel referred the provisions of order I Rule 3 of the C. P. C. and submitted that persons may be joined in one suit as defendants only when any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions in alleged to exist against such parsons, whether jointly, severally or in the alternative; and if separate suits were brought against such persons, any common question of law or fact would arise. Learned counsel submitted that no relief in respect of, or arising out of, the same act or transaction or series of acts or transactions against the state of Bihar has been sought for. In the instant case the plaintiffs have sought declaration of their right, title, confirmation of possession and for declaration that the order of the Circle Officer is without jurisdiction. Learned counsel submitted that he has claimed the reliefs against the private respondents and not against the State of Bihar. Learned counsel further submitted that even if any judicial order is assailed the Court or the Presiding Officer is not required to be made a party if the contest is between the two private parties and in that view also the circle Office or State of Bihar is not a necessary party. Learned counsel further submitted that even if any judicial order is assailed the Court or the Presiding Officer is not required to be made a party if the contest is between the two private parties and in that view also the circle Office or State of Bihar is not a necessary party. Learned counsel lastly submitted that the plaintiffs suit cannot be defeated only on the basis of non-joinder of state without adjudicating and deciding the controversy of right, title and interest between the parties of the suit. Such provision has been specifically made in Order I rule 9 of the C. P. C. and in that view also the suit should not have been dismissed in absence of the State of Bihar. ( 7 ) SO far the second substantial question is concerned, the learned counsel submitted that the same is ancillary to the first substantial question and the reply is inherent in the said reply that even in absence of the Circle Officer or without considering the order of the Circle Office, the plaintiffs suit could have been disposed of on the basis of his title and possession and declaration could have been made regarding the same and possession could have been confirmed in case of finding of possession in his favour. Learned counsel further submitted that both the said questions must be answered in favour of the plaintiffs-appellants holding that the state of Bihar was not a necessary parry in the suit and that even without taking into consideration the order of the Circle Officer, declaration could have been made regarding the plaintiffs title and possession. ( 8 ) HAVING heard the learned counsel for the appellants and perused the records, I find that plaintiff and sought reliefs of declarations of their right, title and interest and confirmation of possession and for declaration that the order of the Circle Officer for their eviction is illegal and without jurisdiction. No declaration of title and/or possession was sought for against the State of bihar. Such being the case there was no necessity of impleading the State of Bihar as a defendant in the suit. The nature of the clalm of the appellants was purely relating to title and possession with respect to the suit land which were allegedly interfered with by defendants, giving rise to the cause of action for the suit. Such being the case there was no necessity of impleading the State of Bihar as a defendant in the suit. The nature of the clalm of the appellants was purely relating to title and possession with respect to the suit land which were allegedly interfered with by defendants, giving rise to the cause of action for the suit. In that view, there was no necessity to add the State of Bihar as a defendant as the issues involved were the contesting clalms of right, title between the plaintiffs and the defendants. So far the order of the Circle Officer is concerned, the same has not declared any right and title. The Circle Office held that Kurfa settlement in favour of the father of the plaintiff No. 1 was contrary to the provision of Santhal parganas Tenancy Act without taking into consideration that at the time of the said settlement, the Act itself was not in existence and it was brought on statute book much thereafter. There was no question of contravention of any provision which was then not in existence. The Court below has thus committed serious errors in arriving at the finding that the suit was bad for nonjoinder of the State of Bihar and on that ground dismissing the plaintiffs suit and appeal. It is thus held that the State of Bihar was not a necessary party to the suit and the reliefs prayed for by the plaintiffs relating to declaration of their title and confirmation of possession should have been considered and decided even in absence of the circle Officer or the State of Bihar. ( 9 ) IN the result, the judgments and decrees of the Courts below are set aside. This appeal is allowed. However, there is no order as to costs. --- *** --- .