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2017 DIGILAW 1123 (GAU)

Amrit Kaur v. Sardar Prem Singh

2017-08-17

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. G.P. Bhowmick, the learned Senior Counsel, assisted by Ms. J. Purkayastha, the learned counsel appearing for the petitioners and also Mr. G.N. Sahewalla, the learned Senior Counsel, assisted by Ms. D. Swami, the learned counsel appearing for the respondents. 2. The two revisions between the same parties have been taken up for analogous disposal. (a) The challenge in CRP (I/O) No. 31/2016, under Article 227 of the Constitution of India is the order dated 19.03.2016, passed by the learned Civil Judge Tinsukia, in connection with T.S. No. 35/1997, by which the application filed by the petitioner-defendant under the provisions of Order I Rule 10(2) CPC to implead a party as the defendant No.4 in the suit was dismissed. (b) The challenge in CRP (I/O) No. 32/2016, under Article 227 of the Constitution of India is another order dated 19.03.2016, passed by the learned Civil Judge Tinsukia, in connection with T.S. No. 35/1997, by which the application filed by the petitioner- defendant under the provisions of Order VIII Rule 9 CPC to file additional written statement was dismissed. 3. The respondents are the plaintiffs in TS 35/1997, which was filed against the predecessor-in-interest of the respondents herein, namely, Kuldip Singh and 3 (three) others, claiming to have purchased the suit premises. In the plaint, the respondent has prayed for declaration, recovery of khas possession and injunction, to the following effect:- (i) A declaration that the plaintiff are the absolute owner of the suit property mentioned in the Schedule ‘A’ below; (ii) A declaration that the occupation suit property by the defendant No. 1,2 and 3 are illegal and unauthorized; (iii) For recovery of khas possession of the property by evicting the defendant Nos. 1,2 and 3 and their man/men and their dependant and by removing their goods from the suit property mentioned in Schedule ‘B’; (iv) A declaration that the installation of Electric connection by the defendant No. 4 is illegal and unauthorized and direction to the defendant No. 4 to remove the meter from the suit property, which was given in the name of original defendant No. 1; (v) A temporary injunction restraining the defendant Nos. 1 and 2 from trespassing the suit premises described in the Schedule ‘D’ and from alienating the suit property or part thereof to nay body during the pendency of the suit; (vi) A perpetual injunction restraining the defendants No.1, 2 and 3 from entering or trespassing the suit premises; 4. The petitioners contested the suit, by filing written statement and counter-claim. Amongst others, the petitioner took a plea that the suit house belonged to the Hindu Undivided Family, with Sardar Kuldip Singh as the Karta as per the decision in TS 45/1976. It was claimed that originally Sardar Gurbox Singh took the said land on lease from one Gobardhandas Goenka, who constructed three houses thereon, which was rented out to various tenants. On death of Gobardhandas Goenka, the property became property of Hindu Undivided Family of M/s. Gobardhandas Nandlal, with one Nandlal Goenka, son of Gobardhandas Goenka being its Karta. Gurbox Singh had two sons, being Sardar Kuldip Singh and Sardar Prem Singh, the predecessor- in- interest of the parties. It is claimed that there was no partition of the suit land between the two sons of Gurbox Singh. It is also stated that Sardar Prem Singh surreptitiously purchased the suit land from M/s. Gobardhandas Nandlal in the name of his two sons vide Sale Deed No. 1960 of 1988 and unlawfully got their names mutated in the record of rights of land revenue and municipal authorities. By praying for dismissing the suit, the petitioners prayed for the following relief in their counter-claim:- (a) A declaration that the judgment and decree dated 19.09.1979 passed in T.S. No 45/76 by the Munsiff Court at Tinsukia (between Sardar Prem Singh -versus- Sri Jahwar Shah and others) is valid and enforceable in law and the defendants are entitled to protection under the said judgment and decree in respect of the suit properties mentioned in various Schedule appended to this written statement. (b) A declaration that the purchase made by the plaintiff vide registered Sale Deed No. 1960 of 1988, dated 20.09.1988 did not change the nature and character of the suit properties and they did not got exclusive ownership over and in respect of the same and the same is still the properties of Hindu Undivided Family as there is no partition thereof. (c) A declaration that the defendants are also having same right, title, interest and claim over and in respect of the sit properties and the properties are liable for partition in two equal parts. (d) A declaration that the defendants are in possession and occupation of the half of the suit properties as described in the schedule ‘B’ to the written statement and they are entitled to the said partition. (e) A judgment and decree for partition of the suit properties between the plaintiffs and the answering defendants in equal shares. (f) Permanent injunction restraining the plaintiff from acting detrimental to the interest of Hindu Undivided Family Property and from causing unnecessary harassment and annoyance to the defendants and their family members and also restraining them from alienating the suit properties to any third party on the strength of the documents on their hands. (g) Ad-interim temporary injunction as above. (h) Cost of the suit. (i) Any other reliefs to which the defendants are found entitled to in the eye of law, equity and justice. 5. Thereafter, on 27.01.2016, the petitioners field two petitions before the learned trial court, one under the provisions of Order I Rule 10(2) CPC for impleading M/s. Gobardhandas Nandlal (HUF), represented by Sri Nandlal Goenka as defendant No.4 with regard to their counter-claim, and the other under the provisions of Order VIII Rule 9 CPC for permission to file additional written statement for the purpose of incorporating two law points that (i) the suit is barred under Order II Rule 2 CPC, and (ii) the suit is barred by res-judicata. The respondent filed their separate written objections and prayed for rejection of both the said petitions. The learned Civil Judge, Tinsukia, upon hearing the learned counsel for the parties, rejected both the said two petitions by passing two separate orders dated 19.03.2016. Both the said orders have been separately challenged as indicated above. 6. CRP (I/O) 31/2016 is taken up first. 7. The learned Senior Counsel appearing for the petitioners in his usual erudite argument, has submitted that the learned court below had erred in law and on facts in rejecting the petition for impleading. Both the said orders have been separately challenged as indicated above. 6. CRP (I/O) 31/2016 is taken up first. 7. The learned Senior Counsel appearing for the petitioners in his usual erudite argument, has submitted that the learned court below had erred in law and on facts in rejecting the petition for impleading. It is submitted that the court had passed the order mechanically without appreciating that in the counter-claim, the petitioners had the status of the plaintiffs in the cross suit and, as such, it was the prerogative of the petitioners to implead any person whose presence is deemed necessary for the decision in the suit. The learned Senior Counsel has extensively argued on what was the difference between the “proper party” and “necessary party” in a suit and in this regard, he has placed reliance on the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre & Hotels Pvt. Ltd., (2010) 7 SCC 417 . In order to impress the reason for impleading M/s. Gobardhandas Nandlal, it is submitted that there was a prayer for partition in the counter-claim and therefore, as the presence of the original land-owner is desired as they are the proper parties, in the presence of whom the counter-claim is to be decided. 8. Per Contra, the learned Senior Counsel appearing for the respondent has argued in support of the impugned order and has referred to the plaint and submitted that by registered sale deed No. 1960/1988 dated 27.06.1988, the respondents herein had purchased the suit land and their names were mutated in land revenue records as well as in the municipal records and they were paying the requisite land revenue and municipal taxes. Hence, any semblance of any right whatsoever that the original land-owner had, had devolved on the respondents herein and, as such, the previous land-owner can neither be a necessary party, nor a proper party in the suit or in the counter-claim, where no relief has been sought for against the said party i.e. M/s. Gobardhandas Nandlal. The predecessor-in-interest of the present petitioners were allowed to stay in a part of the suit premises as a permissive occupier, as he was the brother of the respondent No.1. The predecessor-in-interest of the present petitioners were allowed to stay in a part of the suit premises as a permissive occupier, as he was the brother of the respondent No.1. However, as the defendant No.1 had started to carry out constructions and asserted their claim over a portion of the suit land by obtaining electricity connection, the respondents had instituted the suit in the year 1997. The plaint was amended and the amended plaint was filed on 26.02.2013. The petitioners, who were impleaded as substituted Defendants No. 1(a), 1(b) and 1(c) respectively, filed their written statement against the amended plaint on 07.06.2013. It is further submitted that the said petition was filed at a very belated stage, when the suit was fixed for cross-examination of PW-1. 9. Having heard the learned Senior counsels for both sides, this Court has perused the materials on record. In the impleading petition, it has been stated that the predecessor-in-interest, in his written statement had claimed that originally his father Late Gurbox Singh had taken the suit land described in Schedule-A on lease from Sri Gobardhandas Goenka and that the constructions standing on the suit land were made by him. Moreover, in T.S. No. 45/1976, it has already been held that the property was the property of Hindu Undivided Family, of which Sardar Kuldip Singh was the Karta. Hence, the previous owners, namely, M/s. Gobardhandas Nandlal was required to be impleaded as defendant No.4 for proper and final disposal of the suit. In view of the said statements, this court finds no infirmity in the impugned order passed by the learned trial court for the reasons as indicated below. 10. The respondents claim to have purchased the suit land from the original owners, namely, M/s. Gobardhandas Nandlal. Therefore, all or every right, which the said original owners had in respect of the property sold, has to devolve on the purchasers. Therefore, if the title is defective, the purchaser will not get the desired right and moreover, all rights of the seller gets extinguished upon such sale becoming effective i.e. by registration of the sale deed. This discussion is made only for the purpose of finding out whether the said M/s. Gobardhandas Nandlal is a necessary or a proper party to the suit. 11. This discussion is made only for the purpose of finding out whether the said M/s. Gobardhandas Nandlal is a necessary or a proper party to the suit. 11. The learned trial court appears to have correctly understood and applied the ratio of the case of Mumbai International Airport Pvt. Ltd. (supra). The learned trial court is found to have correctly examined the written statement filed by the petitioners that in paragraph (o) thereof, the petitioners herein had admitted the sale of suit land by sale deed No. 1960 of 1988. This stand is found to be also stated in paragraph (k) of the said written statement. Therefore, if according to the petitioners, the said transaction has no force, the said point can be decided even in the absence of the said M/s. Gobardhandas Nandlal. Therefore, this court does not find any infirmity in the impugned order, refusing to implead the said firm as the defendant No.4 in the suit by applying the ratio of the case of Mumbai International Airport Pvt. Ltd. (supra). Except for the purpose of explaining to this Court, what is the distinction between a “proper party” and a “necessary party” to the suit, the said decision of the Hon’ble Supreme Court does not appear to help the petitioner in any other manner. 12. CRP (I/O) 32/2016. 13. In this connection, the learned Senior Counsel for the petitioners has submitted that the plaintiff No.1 had earlier instituted TS No. 45/1976 against the predecessor- in- interest of the petitioners, namely, Sardar Kuldip Singh, which was dismissed by judgment and decree dated 19.09.1979, inter-alia, by holding that the property was a Hindu Undivided Family property of which Sardar Kuldip Singh was the Karta and that there was no partition of the suit land. Hence, the present suit was not maintainable because no prior leave under the provisions of provisions of Order II Rule 2 CPC was taken for instituting the present suit, and moreover, the present suit was barred by the principles of res-judicata, as the decision in TS 45/1976 had attained finality. The learned Senior Counsel for the petitioners had presented a lengthy argument to demonstrate the plea of res-judicata taken by the petitioners. It is submitted that the learned trial court had passed the impugned order in a mechanical manner, without appreciating the issue sought to be raised. The learned Senior Counsel for the petitioners had presented a lengthy argument to demonstrate the plea of res-judicata taken by the petitioners. It is submitted that the learned trial court had passed the impugned order in a mechanical manner, without appreciating the issue sought to be raised. It is submitted that if additional written statement is allowed to be brought on record, the petitioners would have a foundation of pleadings for proving the issue now sought to be raised. It is also submitted that issues relating to law can be raised at any time and therefore, the respondents- plaintiffs would not suffer any prejudice. Strong argument has been made to explain the recent view of the Hon’ble Supreme Court on liberal approach of amendment to the written statement to bring home the point that instead of amending the written statement and counter-claim, the petitioners have proposed to submit an additional written statement, which will not have the effect of dislodging the plaintiffs in any manner. Hence, the learned Counsel for the petitioners has prayed for interfering with the order of refusing additional written statement, impugned herein. 14. Per Contra, by reiterating the stand taken earlier in course of argument in CRP (I/O) 31/2016, the learned Senior Counsel for the respondents has submitted that it is a well settled principle of law that pleadings must state concise statement of facts and it need not contain provisions of law or argumentative matters. But, contrary to the said principles, the petitioners, in the garb of filing additional written statement under the provisions of Order VIII Rule 9 CPC, have sought for permission to file additional written statement for the purpose of incorporating two law points that (i) the suit is barred under Order II Rule 2 CPC, and (ii) the suit is barred by res-judicata, which can be taken up even in course of argument. It is submitted that the court is empowered to add or subtract or recast the issues at any stage and even while writing judgment. It is submitted that the real intention of the petitioners is to somehow delay the disposal of the suit because if the additional written statement is filed, the parties will be delegated back to the position of pre-trial stage. Hence, it is prayed that the present revision be dismissed. 15. It is submitted that the real intention of the petitioners is to somehow delay the disposal of the suit because if the additional written statement is filed, the parties will be delegated back to the position of pre-trial stage. Hence, it is prayed that the present revision be dismissed. 15. In this regard, having considered the rival arguments advanced by the learned Senior Counsels appearing for both sides, this court is of the opinion that as the petitioners have already taken the plea in their written statement that by judgment and decree dated 19.09.1979 passed in TS 45/1976, it has been held that the suit property was a Hindu Undivided Family property of which Sardar Kuldip Singh was the Karta and that there was no partition of the suit land, there is no necessity to reiterate the same in legal form of language. There appears to be no impediment for the petitioners to raise the issues in course of argument. Hence, this court finds no reason for interfering with the order dated 19.03.2016 impugned herein. 16. This court has refrained from making any comment on the maintainability of the plea of res-judicata or the filing of suit without leave under Order II Rule 2 CPC, because any comment made on the said aspect would definitely cause severe prejudice to either side in course of trial. 17. As a result, this court finds no infirmity in the two orders dated 19.03.2016 passed by the learned Civil Judge, Tinsukia, in connection with TS No. 35/1997, which is impugned separately in both the revisions. Resultantly, both the revisions are dismissed. The interim order stands vacated. The parties are left to bear their own cost. 18. The parties, who are duly represented by their respective counsels, are directed to appear before the Court of the learned Civil Judge, Tinsukia on 04.09.2017, without any further notice for appearance, and by producing a certified copy of this order, seek further instructions from the said learned Court.