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2014 DIGILAW 57 (ORI)

LAXMIKANTA KAR v. SURENDRA PAUL

2014-01-22

A.K.GOEL, A.K.RATH

body2014
JUDGMENT : Dr. A.K. Rath, J. - Challenging, inter alia, the order dated 11.7.2013 passed by the learned Single Judge, the aforementioned appeal has been filed. By the said order, the learned Single Judge confirmed the order dated 16.03.2013 passed by the learned Civil Judge (Junior Division), Jaleswar in C.S. No. 83 of 2005 allowing the application under Order 1 Rule 10(2) of the CPC (in short, "the CPC"). The appellant as plaintiff laid a suit being C.S. No. 83 of 2005 in the court of learned Civil Judge (Junior Division), Jaleswar for declaration of right, title and interest in respect of suit schedule plot, for a declaration that the major settlement R.O.R. as illegal and for permanent injunction. In the said suit, the villagers filed an application for impletion of parties. The case of the villagers is that they are using the suit schedule property since long and the goddess temple is situated towards the southern side of the suit land. Towards the northern side, there is a main road from Jaleswar to Chandaneswar. They have also asserted that they have a right on the way to the temple and, as such, they are necessary parties to the lis. The said application having been allowed, the plaintiff filed the writ application. Learned Single Judge dismissed the writ application. 2. We have Mr. A.S. Nandy, learned counsel for the appellant. 3. Mr. Nandy argues with vehemence that the villagers have never used the suit property as a path-way. Furthermore, the finding of the learned Single Judge that the suit house has been recorded as "Nayanjori" is not correct. He further submits that the appellant is in possession of the suit property since 1945 by constructing a house thereon. 4. Order 1 Rule 10(2) of the CPC postulates as follows: 10. Furthermore, the finding of the learned Single Judge that the suit house has been recorded as "Nayanjori" is not correct. He further submits that the appellant is in possession of the suit property since 1945 by constructing a house thereon. 4. Order 1 Rule 10(2) of the CPC postulates as follows: 10. Suit in name of wrong plaintiff- (1) xxx xxx xxx (2) Court may strike out or add parties-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. 5. In Razia Begum Vs. Sahebzadi Anwar Begum and Others, the Supreme Court has held 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. 6. In Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, the Supreme Court has held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 7. Considering the present case on the anvil of the decisions cited supra, we are of the view that the villagers are necessary parties to the lis. The contention of the appellant that he is in possession of the suit property since 1945 by constructing a house thereon is the subject-matter of the suit. The learned Single Judge has rightly observed that the same cannot be adjudicated in an application under Article 226 of the Constitution of India. Whether the Kissam of the suit land is "Gharabari" or "Nayanjori", the same can be also gone into by the learned trial court. The learned Single Judge has rightly observed that the same cannot be adjudicated in an application under Article 226 of the Constitution of India. Whether the Kissam of the suit land is "Gharabari" or "Nayanjori", the same can be also gone into by the learned trial court. In view of the same, we are of the view that the appellant has not made out any case for our interference. The appeal is dismissed accordingly. Final Result : Dismissed