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2015 DIGILAW 561 (RAJ)

Devi Singh v. Kiran Singh

2015-03-02

ALOK SHARMA

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JUDGMENT : Alok Sharma, J. Since the controversy involved in both the petitions is identical, they are being decided by this common order. However, the facts of SBCW P. No. 5022/2014 are taken into consideration. 2. This petition has been filed assailing the order dated 2.1.2014 passed by the Board of Revenue, Rajasthan, Ajmer (hereinafter 'the Board') allowing the revision filed by the respondent-plaintiff-non-applicant (hereinafter 'the non-applicant') one Karan Singh against the order dated 31.1.2012 passed by the SDO, Weir whereby he had allowed the petitioner defendant applicant's (hereinafter 'the applicant') application under Order 1, Rule 10 CPC to be impleaded in a suit by the non-applicant for declaration, partition, possession and permanent injunction filed under sections 188, 88, 89 and 53 of the Rajasthan Tenancy Act, 1955 (hereinafter 'the Act of 1955'). 3. Section 53 of the Act of 1955 deals with division of the tenancies. Thereunder a tenancy can be divided by a decree or order of Competent Court passed in a suit laid by one or more of the co-tenants for the purpose of dividing the holding and distributing the rent thereof over the several portions in which its is divided. Section 53(4) of the Act of 1955 further provides that in every suit for the division of one or more than one holding all the co-tenants and the landholder shall be made parties. 4. The case of the plaintiff non-applicant in his suit under sections 53, 188, 88 and 89 of the Act of 1955 before the SDO, Weir was that he was the son of one Nidan Singh, as were the defendants Bijendra Singh and Laxman Singh. Nidan Singh was the erstwhile khatedar of the suit lands as detailed in the plaint spread over several Khasras, including khasra No. 62/2 to an extent ad-measuring 2 Bigha 14 biswas. It was submitted that subsequent to the death of Nidan Singh, the plaintiff was sought to be denied his rights in the suit land on or about 2.7.2011 and hence joint khatedari was required to be divided by way of partition, he be put into possession of his share and the defendants restrained from interfering in his share of land as determined and delivered by the Court. Hence the suit for partition, declaration and permanent injunction. 5. Hence the suit for partition, declaration and permanent injunction. 5. It was in the aforesaid suit of the plaintiff-non-applicant that the applicant filed an application under Order 1, Rule 10 CPC stating that he had purchased agricultural land ad-measuring 2 bigha 14 biswa in Khasra No. 62/2 Village Ajronda Tehsil Weir, included in the plaintiff's suit, by way of registered sale deed dated 17.6.2011 from the defendant Bijendra Singh, was in possession thereof and thus had interest in the partition suit to that extent. It was prayed that the applicant be therefore impleaded as a party in the suit. 6. The SDO, Weir on consideration of the application under Order 1, Rule 10 CPC vide order dated 31.1.2002 allowed it and impleaded the applicant as a party in the plaintiff-non-applicant's suit. Aggrieved the plaintiff-non-applicant invoked the revising powers of the Board under section 230 of the Rajasthan Tenancy Act. Vide order dated 2.1.2014, the Board allowed the revision petition and set-aside the SDO's order dated 31.1.2002. A review petition by the applicant was also dismissed on 7.2.2014. Hence this petition. 7. I have heard the counsel for the petitioner and perused the impugned orders referred to above. 8. In my considered opinion in terms of section 53 of the Act of 1955 in a suit for partition only the co-tenants can be impleaded as parties. Aside of the above even on the doctrine of dominus litus it is for the plaintiff in a suit to determine as to whom he seeks to litigate and seek relief/s against. It is no doubt true that under Order 1, Rule 10 CPC the trial court can implead any party to a suit whose presence it finds necessary for a complete and effectual disposal of the issues agitated in the suit. That power however cannot be exercised contrary to the specific provision of section 53(4) of the Act of 1955 in respect of parties entitled to impleadment in a revenue suit for division of a tenancy. That power however cannot be exercised contrary to the specific provision of section 53(4) of the Act of 1955 in respect of parties entitled to impleadment in a revenue suit for division of a tenancy. Without diluting the above proposition, it would also be in place to note that there is also no material on record to establish the contention of the counsel for the applicant that the property purchased by the applicant from the defendant Bijendra Singh i.e 2 Bigha 14 Biswas in Khasra No. 62/2 was the self acquired property of Bijendra Singh either by way of allotment in his own name or by way of purchase from the erstwhile khatedars under a registered sale deed. In the circumstances it cannot be argued, as was sought to by the applicant's counsel, that Bijendra Singh was the absolute owner in his own right of Khasra No. 62/2 to an extent ad-measuring 2 Bigha 14 biswas land in Village Ajronda Tehsil Weir and such rights had devolved on the applicant under the sale deed dated 17.6.2011 executed in favour of the applicant. As long as Khasra No. 62/2 in issue prima facie remained in the co-khatedari of the plaintiff applicant and his brothers (including Bijendra Singh) the sale deed executed by Bijendra Singh alone was of no effect against the other co-owners/ khatedars. 9. No doubt the applicant may have his rights against Bijendra Singh in terms of the registered sale deed dated 17.6.2011 executed by him. However those rights will only be in respect of the property which comes in the share of Bijendra Singh in the suit for declaration, partition, possession and permanent injunction laid by the plaintiff-non-applicant Karan Singh. 10. I find no force in the petitions. Accordingly dismissed. Petition dismissed.