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2005 DIGILAW 48 (MP)

Dagariya Hagariya v. Suban Second

2005-01-10

S.K.GANGELE

body2005
JUDGMENT This is defendant's appeal against the judgment and decree passed in Civil Appeal No. 3-A/1985 dated 6th of November, 1989 reversing the judgment and decree passed by the trial Court in Civil Suit No. 3-A/83 dated 30.11.1984. The appeal was admitted for hearing on 18.11.1991 on following substantial question of law: "Whether the appeal could be disposed of by the Lower appellate Court without making State Government as a party to the appeal under Order 1 Rule 3A of the CPC". Plaintiff filed a suit of land mentioned in Para-l of the plaint for possession and mean profits. It is pleaded by the plaintiff that the suit property is the ancestor's property and defendant forcefully took possession over the land of the plaintiff. Defendant denied the claim of the plaintiff and it is submitted by the defendant that plaintiff has sold his portion of land and left the village. The trial Court has held that it has not been proved that half share of the suit property was received by the plaintiff in a partition and neither it has been proved that he is entitled for the half share of the property and defendant forcibly took possession of the property and dismissed the suit. Against the aforesaid judgment and decree, plaintiff filed a suit. Learned appellate Court has held after detailed discussion of the evidence on record that there was partition of suit land and plaintiff got half share of the suit land. Defendant forcibly took possession of the land. Hence, the plaintiff is entitled for declaration, possession and mean profits and decreed the suit by setting aside the judgment of the trial Court. It is an admitted position that when the respondents-plaintiff filed the appeal, the defendant-appellant, who was respondent in the First appellate Court did not raise any objection with regard to non-impleading of State as a party. It is also an admitted position that no claim has been claimed by the plaintiff against the State. The suit of the plaintiff is for partition and possession of the ancestrial property. It is also an admitted position that the appellant has made State Government as a party in the second appeal and notices were also issued to the State of M.P. No objection has been filed with regard to State of M.P., respondent No. 2 about the judgment and decree of the first appellate Court. It is also an admitted position that the appellant has made State Government as a party in the second appeal and notices were also issued to the State of M.P. No objection has been filed with regard to State of M.P., respondent No. 2 about the judgment and decree of the first appellate Court. Learned counsel for the appellant has submitted that non-joinder of State Government by the plaintiff in the first appeal is fatal in nature. He ought to have been impleaded State Government as a party, as per the provisions of Order 1 Rule 3 (a) of the Civil Procedure Code. Learned counsel for the appellant further submitted that it is in the interest of justice to frame additional substantial question of law. I am not in agreement with the arguments of learned counsel for the appellant. State Government has already been made party in the appeal. There is no relief has been sought against the State of M.P. Single Bench of this Hon'ble Court in 1998 (I) MPWN 136 Shankar Lodi v. Pannalal, has held that no relief claimed against the State non-impleading as State Govt. has no consequences. Further the State Government did not filed any objection when it has already been impleaded as party in the second appeal. Hence, in the above facts, non-joinder of State Government by the plaintiff-appellant in the first appeal has no consequences. On the basis of the above findings, I answer the substantial question of law that the first appellate Court can proceed with the appeal without making State' Government as a party. With regard to framing other substantial questions as argued by the learned counsel for the appellant. I am not impressed with the said arguments and in my opinion there is no necessity for formulating any other substantial questions of law. On the basis of above facts and circumstances, I do not find any substance in the appeal and it is dismissed without any order as to costs. Parties are directed to bear their own costs.