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2015 DIGILAW 1104 (JHR)

Dayanand Tiwari v. Sheikh Seraj Ansari

2015-09-15

SHREE CHANDRASHEKHAR

body2015
Order : On 10.08.2015, notice was issued in the matter and the petitioner was permitted to serve dasti notice. Order dated 27.08.2015 records that the respondents were validly served. The matter was accordingly adjourned for 04.09.2015. Today also, the respondent nos. 1 to 6 have not entered appearance. 2. Aggrieved by order dated 16.02.2015 in Title Suit No. 135 of 2006 whereby, application under Order I Rule 2(3) and Rule 10 C.P.C. has been allowed and respondent nos. 7 and 8 have been added as defendants in the suit, the present writ petition has been filed. 3. The petitioner is defendant no. 1 in Title Suit No. 135 of 2006. The suit was instituted for a decree of perpetual injunction restraining the defendants from interfering with the plaintiffs' peaceful khas possession over the suit schedule property. The plaintiffs asserted that the land pertaining to Revisional Survey Plot No. 292 under R.S. Khata No. 323 measuring an area about 1.10 acres, situated at village Kandari, Ranchi was recorded in the name of one Sheikh Chain in R.S. Record of Rights as “Kayami”. The said recorded tenant was in cultivating possession of the suit land and he remained in khas possession over the same till his death. After the death of Sheikh Chain in the year, 1945, his two sons namely, Sheikh Rahim and Sheikh Rahman came in possession over the suit land. Finally, the plaintiff no. 1 succeeded and inherited the suit property and came in khas possession over the same. The petitioner/defendant no. 1 filed written statement stating that defendant no. 2 has unnecessarily been impleaded as defendant in the suit. The defendant no. 2 has no interest in the suit property and he was not in khas possession over the suit land. The defendant no. 1 claimed that Khewat No. 10/1 was prepared in the name of Sidheshwar Nand Tiwary, Mahadeo Maheshwar Nand Tiwary, Hari Mohan Nand Tiwary and Hari Charan Nand Tiwary. It was asserted that khewatholder mortgaged the property with Kanthi Ram Pathak for Rs. 600/of zerpesagi khewat and Zerpesagi Khewat No. 35 under Khewat No. 10/1 was opened in the name of Kanthi Ram Pathak. The said Sidheshwar Nand Tiwary and Mahadeo Maheshwar Nand Tiwary redeemed the mortgaged amount to Kanthi Ram Pathak. It was asserted that khewatholder mortgaged the property with Kanthi Ram Pathak for Rs. 600/of zerpesagi khewat and Zerpesagi Khewat No. 35 under Khewat No. 10/1 was opened in the name of Kanthi Ram Pathak. The said Sidheshwar Nand Tiwary and Mahadeo Maheshwar Nand Tiwary redeemed the mortgaged amount to Kanthi Ram Pathak. It was claimed that other two brothers namely, Hari Mohan Nand Tiwary and Hari Charan Nand Tiwary did not make contribution for redemption of the mortgage. The mortgage-deed was also returned by Kanthi Ram Pathak to the two brothers namely, Sidheshwar Nand Tiwary and Mahadeo Maheshwar Nand Tiwary. In the pending suit, application dated 01.08.2014 was filed by respondent nos. 7 and 8 claiming interest in the suit schedule property. The said application has been allowed vide order dated 16.02.2015 and, aggrieved, the petitioner has filed the present writ petition. 4. The learned counsel for the petitioner submits that Title Suit No. 135 of 2006 was instituted on a different cause of action. The plaintiffs asserted that the defendants are trying to disturb the khas possession of the plaintiffs on the basis of false and fabricated documents. The right, title and interest of the defendants over the suit property was denied. It was asserted that the defendants were trying to invade the legal right, title and possession of the plaintiffs and on an apprehension that they may interfere with the peaceful possession of the plaintiffs by illegal means, the suit was instituted. The suit was for perpetual injunction for restraining the defendants from interfering with peaceful khas possession of the plaintiffs and therefore, no cause of action was disclosed in Title Suit No. 135 of 2006 against the respondent nos. 7 and 8. Since specific relief claimed by the plaintiffs was against the original defendants, addition of respondent nos. 7 and 8 was not necessary. Relying on decision in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay (1992) 2 SCC 524 , the learned counsel for the petitioner submits that merely because a person may have an interest in the suit property, he cannot be added as a party. 5. The learned counsel for the respondent nos. 7 and 8 submits that the applicants have valuable interest involved in Title Suit No. 135 of 2006 inasmuch as, any decision in Title Suit No. 135 of 2006 may adversely affect the interest of respondent nos. 5. The learned counsel for the respondent nos. 7 and 8 submits that the applicants have valuable interest involved in Title Suit No. 135 of 2006 inasmuch as, any decision in Title Suit No. 135 of 2006 may adversely affect the interest of respondent nos. 7 and 8. Merely because no relief has been sought against respondent nos. 7 and 8, it cannot be contended that the respondent nos. 7 and 8 are not even proper parties to the suit. It is further contended that the defendants, plaintiffs and respondent nos. 7 and 8 have all claimed right, title and interest in the suit schedule property though, on different grounds and therefore, the respondent nos. 7 and 8 have rightly been impleaded as defendants in Title Suit No. 135 of 2006. 6. A perusal of application dated 01.08.2014 under Order I Rule 2(3) and Rule 10 C.P.C. would disclose that the applicants have asserted that they are legal heirs and successors of khewatdar Kapil Ram Pathak. It is stated that the said khewatdar gave the land comprised in Khata No. 323 in Plot No. 292 admeasuring 1.10 acres to Sheikh Chain for cultivation in Adhbatai before the Revisional Survey and the name of Sheikh Chain was entered as Adhbataidar in the Revisional Survey Record. It is claimed that the land is Bakast land of Kapil Ram Pathak and his brothers. It is not in dispute that the said Sheikh Chain died and thereafter, a dispute arose between the parties whether the land which was given to Sheikh Chain came in possession of Kapil Ram Pathak and his son or the legal heirs and successors of Sheikh Chain who died leaving behind two sons. The defendant no. 1 has claimed that the said Sheikh Chain surrendered the mortgage by a mortgage-deed in favour of the petitioner who is defendant no. 1 and Mahadeo Maheshwar Nand Tiwary. In paragraph no. 12, the petitioner has averred as under: “That on redemption of the mortgage the Adhbatai which was created by the mortgagee also ceased to be operative. The Adhbataidar Sheikh Chain also gave up possession of land to the said two brother and executed and registered a deed of surrender dated 13.05.1950.” 7. From the aforesaid, it is apparent that the petitioner has admitted mortgage by Adhbatai. The plea of Adhbatai has also been raised by respondent nos. The Adhbataidar Sheikh Chain also gave up possession of land to the said two brother and executed and registered a deed of surrender dated 13.05.1950.” 7. From the aforesaid, it is apparent that the petitioner has admitted mortgage by Adhbatai. The plea of Adhbatai has also been raised by respondent nos. 7 and 8 in their application under Order I Rule 2(3) and Rule 10 C.P.C. In “Ramesh Hirachand Kundanmal” (supra), the Hon'ble Supreme Court has observed that, what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved and not merely that he has an interest in the correct solution of some questions involved, the real test what makes one a necessary party is whether he is bound by the result of the actions and the questions to be settled. As noticed above, rival parties have claimed interest in the suit schedule property and thus, any determination by the court with respect to rights of the parties may adversely affect the interest of respondent nos. 7 and 8. It is well settled that in injunction application the court examines prima facie case, balance of convenience and irreparable loss. While examining the issue whether the plaintiffs have a prima facie case or not, the court would advert to and record a finding of title over the suit schedule property and thus, such a finding recorded by the trial court may adversely affect the interest claimed by the respondent nos. 7 and 8 in the suit schedule property. The learned counsel for the petitioner has submitted that an application under Order I Rule 2(3) and Rule 10 C.P.C. was filed at the instance of the plaintiffs, after the plaintiffs examined 7 witnesses. I am of the opinion that whether the respondent nos. 7 and 8 was setup by the plaintiffs or not is not an issue either in the suit or in the present writ petition. Mere delay in filing application for impleadment cannot be a ground for rejecting the application, if the applicant has established his interest in the outcome of the pending suit. 8. Considering the aforesaid facts, I find no infirmity in the impugned order dated 16.02.2015 and accordingly, the writ petition is dismissed.