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2016 DIGILAW 6 (ORI)

Md. Allauddin v. Collector, Sundargarh

2016-01-05

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This matter arises out of an order passed by the lower Court considering an application under Order 1 Rule 10 of C.P.C at the instance of the opposite party Nos.4 to 12. 2. The short back ground involved in the case is that pending consideration of Civil Suit bearing No.389/2010 for declaration of right title, interest and possession over the suit land at the instance of the plaintiff, an application was filed by the opposite party Nos.4 to 12 under Order 1 Rule 10(2) of C.P.C. seeking their intervention in the suit on the premises that the said opposite parties are not only the villagers but also are in use of the disputed land as a communal land for their day to day purposes and in the event, the suit is decided in their absence, they are going to be seriously prejudiced. Petitioner as plaintiff and the State opposite party as defendants in the suit seriously objected such interventions of the opposite party Nos.4 to 12. 3. Considering the claim in the application under Order 1 Rule 10 of C.P.C. and the objection at the instance of the respective parties to the said application, the trial court by the impugned order allowed the application thereby allowing the impletion of the opposite party Nos.4 to 12 as defendants. Hence, the present writ petition at the instance of the plaintiff-petitioner. 4. Challenging the impugned order, learned counsel for the petitioner contended that in view of the specific response of the State Government in the Court below in their objection, there is still availability of a vast patch of land to be utilized as communal land, any order likely to be passed in the suit may not prejudice the case of these opposite parties, suit can still be decided in absence of these opposite parties and as such contended that the trial court has not considered the matter in its proper perspective. 5. Referring to a decision in the case of “Panjum Bibi @ Ramjan Bibi and 7 others ……….. Petitioners Versus Najma Alim and another ………. 5. Referring to a decision in the case of “Panjum Bibi @ Ramjan Bibi and 7 others ……….. Petitioners Versus Najma Alim and another ………. Opposite parties as reported in 2008 (II) OLR-747, Sri Gautam Mishra, learned counsel for the petitioner also contended that in view of the settled position of law, impletion of party is not a matter of routine and such parties must satisfy that they have a substantial claim in the suit, further decision in the suit is likely to affect their prospect. It is under these premises, learned counsel for the petitioner contended that the trial Court’s order is not only contrary to the material available on the record but also remain contra to the decision cited by him. 6. Learned State Counsel in his response referring to the paragraph No.4 of its objection contended that when the village requires only Ac 14.31 Dec. as Gochar land in the village actually Ac 61.28 Dec. of excess land belonging to Government, which is much in excess to the actual requirement of the villagers and therefore, contended that the suit can still be decided in absence of the interveners. Further there is no likelihood of any prejudice to the intervener in the ultimate outcome in the pending suit. 7. Learned counsel for the opposite party Nos.4 to 12 in their opposition contended that since the opposite party Nos.4 to 12 are the villagers in the particular village and the dispute involves a portion of the Gochar land, their right is likely to be affected and therefore, the trial court has taken a right decision in allowing their intervention. Consequently, claimed that there is no scope for interfering in the impugned order by this Court. 8. Perused the application under Order 1 Rule 10 of C.P.C. along with the objections filed by the respective parties. From perusal of the objection at the instance of the State, it appears that the State has the following specific plea in its objection : “(3) That, minimum requirement of Gochar land for the village is Ac 14.31 decimals i.e. 5% of the effective area of the village, when the effective area of village has 286.29 areas of land. (4) That, when the village requires only Ac 14.31res as Gochar land in village actually Ac61.28res of Gochar land exists which is much more excess land.” 9. (4) That, when the village requires only Ac 14.31res as Gochar land in village actually Ac61.28res of Gochar land exists which is much more excess land.” 9. Considering the submissions of the parties, this Court finds that there is no dispute that the interveners opposite party Nos.4 to 12 are the villagers of the particular village but fact remains the whole village contains Ac.61.28Dec of communal land as per the Government record and looking to the extent of land being used by the villagers as Gochar land, this Court does not find any reason of any apprehension for the interveners in the suit. Further as the petitioner only claims right, title & interest in respect of a small patch of land measure Ac.0.85 Dec from plot No.358/404, as clearly borne from the plaint, the claim of the petitioner appears to be very marginal in comparison to the total availability of communal land in the village. This Court finds there is no scope for any suffering to the opposite party Nos.4 to 12 in the event the suit is heard in absence of them. 10. Law as settled by Hon’ble the Apex Court in the case of “Panjum Bibi @ Ramjan Bibi and 7 others ……….. Petitioners Versus Najma Alim and another” (supra) specifically observing that while considering the application under Order 1 Rule 10 of C.P.C., the Court must keep in mind that the plaintiff is the sole architect of the plaint and he has a right to choose his own adversary against whom he seeks relief, mere apprehension of the party that the plaintiff and defendants of the suit may collusively get their suit decided remains unfounded as whatever may be the judgment and order in a suit, it cannot bind him, as he was not a party in the suit. This decision completely fits in the case of the petitioner. 11. Under the facts narrated hereinabove, in view of the specific observations, the material available on record that the villagers still get a vast patch of land to be utilized as Gochar land, keeping in mind the observation of the Hon’ble Apex Court in 2008(II) OLR 747 this Court finds that the impugned order suffers from all angles and therefore, interfering in the impugned order, this Court sets-aside the same. The writ petition stands allowed but however, there shall be no order as to cost.