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2012 DIGILAW 114 (JHR)

Chaturbhuj Mahapatra v. Kalu Murmu

2012-01-20

POONAM SRIVASTAV

body2012
Judgment POONAM SRIVASTAV Heard Mr. K.P. Choudhary, learned counsel appearing on behalf of the revisionist and Mr. P.K. Mukhopadhyay, appearing on behalf of the contesting opposite parties. 2. The instant civil revision was filed in this Court on 26th September, 2000 and an order was passed on 16th October, 2000, issuing notice to opposite party nos. 7 and 8, showing cause why the revision application may not be admitted or, if possible, finally disposed of at the stage of admission itself. Pursuant to the notice, appearance is filed on behalf of the contesting opposite party nos. 7 and 8. Counter affidavit has been preferred. 3. The order under challenge is dated 31st August, 2000 passed by Munsif, Ghatsila in Title Suit No. 48 of 1998 whereby the intervenors' application on behalf of opposite party nos. 7 and 8 was allowed. The title suit was instituted for a declaration of plaintiffs right, title and interest and possession over the suit land viz. Khata No. 35, Plot No. 180, Area 0.66 decimals situated at Mauza Darisole, District Singhbhum East. Alternative relief was for recovery of possession, in the event it was found that the plaintiff was wrongly dispossessed from the suit land and he was not in possession. 4. The intervenors, namely, Nandlal Mahapatra and Ram Chandra Mahapatra filed an application under Order I Rule 3 Code Civil Procedure which was allowed. The revisionist challenged the impugned order on a number of grounds. Firstly, it is not sustainable and suffers from jurisdictional error; there was no reason to entertain the application on behalf of opposite party nos. 7 and 8; and by allowing the said application and impleading them as respondents, wrong exercise of jurisdiction by the court below. It is further contended that the scope and ambit of Order I Rule 3 Code of Civil Procedure does not contemplates intervenors to be arrayed as party who have no 2. connection with the suit property. 5. Submission on behalf of the revisionist is that the intervenors-respondents were residing only as a licensee; they cannot claim any title to the suit property and, therefore, the application was liable to be rejected as it is filed only with a view to confuse the issues and delay the proceedings. connection with the suit property. 5. Submission on behalf of the revisionist is that the intervenors-respondents were residing only as a licensee; they cannot claim any title to the suit property and, therefore, the application was liable to be rejected as it is filed only with a view to confuse the issues and delay the proceedings. Next contention is that there is not a chit of paper produced on behalf of the intervenors to substantiate their claim of participation in the proceedings, hence, their application was liable to be rejected out-right. 6. Counsel on behalf of the opposite parties submits that a number of documents were preferred on 24th August, 2000 along with the application, such as report of the Anchal Karamchari and also of the concerned Circle Officer to show possession of the suit property since the year 1957, whereas the plaintiffs claim their possession from a subsequent date in the year 1964. The plaintiff's admit possession of the contesting opposite party nos. 7 and 8, but the stand taken was that it was an illegal possession and is liable to be evicted. Reliance has been placed on a decision of the Apex Court in Balavant N. Viswamitra and others vs. Yadav Sadashiv Mule and others (AIR 2004 Supreme Court 4377). In this citation, the Apex Court ruled that sub-tenants are not a necessary party and any application at the behest of sub-tenant under Order I Rule 3 of the Code of Civil Procedure is liable to be rejected. 7. After hearing the respective counsel and going through the impugned order, at the very outset, I am of the view that the decision of the Apex Court cited by the learned counsel appearing on behalf of the revisionist is not applicable, since it is not a case where the respondents claim to be a sub-tenant and the actual tenant is already contesting. 8. In fact the suit is for declaration and possession. Admittedly, the intervenors-opposite party nos. 7 and 8 are in possession. The only controversy is whether they are the licensee or they are in possession in their own rights or they have perfected their claim by lapse of time. 8. In fact the suit is for declaration and possession. Admittedly, the intervenors-opposite party nos. 7 and 8 are in possession. The only controversy is whether they are the licensee or they are in possession in their own rights or they have perfected their claim by lapse of time. Whatever the stand be, the relief of possession as claimed in the suit by the plaintiffs, a declaration is also prayed for, being declared that the plaintiffs are in possession or they have wrongly been dispossessed and they are entitled for being put back in possession. 9. Learned counsel on behalf of the revisionist has not disputed the claim of possession that they are in possession since 1957. 10. However, this is a question that is required to be adjudicated by the court below after recording evidence in the suit itself, but since the question of possession is involved and the court below has allowed the application on behalf of the opposite parties to be arrayed as defendants, I am of the considered view he has not exercised the jurisdiction wrongly by allowing the intervenors' application. This is a revision application under section 115 of the Code of Civil Procedure and unless and until it can be said that it is a wrong exercise of jurisdiction, no interference can be made in the instant revision. 11. In view of what has been stated above, the revision lacks merit and it is, accordingly, dismissed.