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2010 DIGILAW 157 (UTT)

PRAKASH CHANDRA BHATT v. KAILASH CHANDRA KARNATAK

2010-03-31

V.K.BIST

body2010
JUDGMENT Hon’ble V.K. Bist, J. Heard the learned counsel for the parties and perused the record. 2. Instant petition has been filed by the petitioner challenging the order dated 20.02.2010 passed by Civil Judge (Jr. Div.), Almora in Civil Suit No. 18 of 2004 ‘Kishore Kumar Tewari and others vs. Jeewan Chandra Pant and others’. The petitioner has sought further writ in the nature of mandamus commanding the Trial Court to consolidate the proceedings of both the Civil Suit Nos. 18 of 2004 ‘Kishore Kumar Tewari and others Vs. Jeewan Chandra Pant and others’ and Civil Suit No. 17 of 2007 ‘Prakash Chandra Bhatt vs. Kailash Chandra Karnatak and another’. 3. The facts giving rise to the writ petition, are that petitioner has purchased 7½ Muthee of land belonging to Z.A. Khatauni Khata no. 482 from Shri Jeewan Chandra Pant and Sameer Pant (respondent nos. 3 & 4) through two separate registered sale deed dated 25.02.2004. The title and possession of the disputed land was transferred to the petitioner on the date of execution of sale deed dated 25.02.2004. The respondent nos. 1 & 2 had knowledge about the fact that aforesaid land had been purchased by the petitioner but despite of this fact, in order to grab the land, the respondent nos. 1 & 2 filed a Revenue Suit u/s 229-B U.P. Z.A. & L.R. Act before the Asstt. Collector, Almora, in which, the respondents did not made the petitioner a party. According to the petitioner, no cause of action arose in favour of respondent no. 1 and against the petitioner owing to subsequent purchase of the property. Thereafter, the respondent no. 1 & 2 filed a Civil Suit seeking a decree of declaration that the sale deed dated 25.02.2004 executed in favour of the petitioner be declared as null and void and further a permanent injunction restraining the petitioner and respondent no. 3 & 4 from interfering in the land in dispute. The suit was numbered as Civil Suit no. 18 of 2004, which is pending in the Court of Civil Judge (Jr. Div.), Almora, in which the respondent no. 3 & 4 have been impleaded as defendant nos. 1 & 2 while the petitioner has been impleaded as defendant no. 3. In this suit, the respondent nos. 3 & 4 have filed their written statement. 18 of 2004, which is pending in the Court of Civil Judge (Jr. Div.), Almora, in which the respondent no. 3 & 4 have been impleaded as defendant nos. 1 & 2 while the petitioner has been impleaded as defendant no. 3. In this suit, the respondent nos. 3 & 4 have filed their written statement. It has been further averred in the petition that as the respondent nos. 1 & 2 in the garb of the said suits tried to interfere in the peaceful possession of the petitioner, therefore, the petitioner instituted a Civil Suit seeking decree of declaration that the sale deed dated 23.09.2004 executed in favour of respondent no. 1 be declared null and void and further a permanent injunction against respondent nos. 1 & 2 has been sought. The said suit is registered as Civil Suit No. 17 of 2007. It has been asserted in the writ petition that the petitioner also moved an application for temporary injunction, which was allowed by the Trial Court vide order dated 03.03.2009. Aggrieved with the order of the Trial Court the respondent no. 1 filed an appeal before the District Judge, Almora which is pending disposal. However, no interim order is passed in the said appeal. 4. Learned counsel for the petitioner submitted that since the dispute involved in Civil Suit No. 18 of 2004 and Civil Suit No. 17 of 2007, pending in the Trial Court, relates to the same property, hence the petitioner moved application for consolidating both the suits and adjudicating the same collectively, but vide the impugned order dated 20.02.2010 the Court below rejected the application of the petitioner, observing therein that as the record of O.S. No. 17 of 2007 has been requisitioned by the Appellate Court, therefore in the interest of justice proceeding of O.S. No. 18 of 2004 shall be continued. 5. Learned counsel for the petitioner argued that the dispute in the both the Civil Suits relates to the identical plot, the parties are same, therefore for proper adjudication of the dispute, both the suits would have been consolidated and would have been heard simultaneously. He argued that the Trial Court erroneously rejected his application seeking consolidation of both the suits. 6. On the other hand, Shri Buwnesh Joshi, the learned counsel for respondent nos. He argued that the Trial Court erroneously rejected his application seeking consolidation of both the suits. 6. On the other hand, Shri Buwnesh Joshi, the learned counsel for respondent nos. 1 & 2 has stated that as the record of O.S. No. 17 of 2007 has been summoned by the Appellate Court for adjudication of Misc. Civil Appeal No. 5 of 2009 arising out of the O.S. No. 17 of 2007, consolidation of both the suits has rightly been rejected by the Trial Court. 7. Having heard the learned counsel for the parties and after perusal of the record, I am of the candid view that the subject matter in both the suits is common, therefore in order to avoid any anomaly and to reach to a just decision of the case and keeping in mind that conclusion of one suit may not effect the other litigation, both the suits should have been consolidated and decided accordingly. The Court below has wrongly rejected the application moved by the petitioner seeking consolidation of both the above suits merely on the ground that the record of other suit has been summoned by the Appellate Court. 8. Accordingly, the writ petition is allowed. Impugned order dated 20.02.2010 passed by the Civil Judge (Jr. Div.), Almora is set-aside. The application (paper no. 99c) moved by the petitioner seeking consolidation of the O.S. No. 17 of 2007 with O.S. No. 18 of 2004 is hereby allowed. Both these suits are consolidated. 9. Since the Misc. Appeal No. 5 of 2009 arising out of O.S. No. 17 of 2007, filed against the order dated 3rd March, 2009 is lying with the record of Misc. Appeal No. 5 of 2009 before the Appellate Court, the record pertaining to Civil Suit No. 17 of 2007 shall be sent back to the Court of Civil Judge (Jr. Div.), Almora on the next date fixed. The learned District Judge, Almora can again summon the record of Civil Suit No. 17 of 2007 as and when same is required for hearing of the Misc. Appeal No. 5 of 2009. 10. Since the Civil Suit No. 18 of 2004 pertains to the year 2004, the Trial Court is directed to decide both the suits very-very expeditiously. The parties are directed to co-operate in the proceedings of the Civil Suits. 11. Costs easy. 12. Stay application (CLMA No. 1561/2010) stands disposed of.