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2017 DIGILAW 277 (ALL)

Hirday Ram v. State of U. P.

2017-01-19

RAJAN ROY

body2017
JUDGMENT Rajan Roy, J. Heard. 2. This is a Writ Petition under Article 226 of the Constitution of India challenging the order dated 16.1.2006, passed by the Additional Commissioner (Judicial), Faizabad Division, Faizabad in Ceiling Appeal No. 84, under Section 13 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 rejecting the application of the petitioners herein for impleadment at the appellate stage claiming themselves to be the sons of Shiv Balak, whose holdings were the subject matter of the said proceedings. 3. The contention of the learned counsel for the petitioners is that the appellate authority has rejected the application, only on the basis of the report of the Tehsildar without affording any opportunity to the petitioners-applicants to adduce evidence in rebuttal thereof. Moreover, it is contended that in a suit between the parties initiated by opposite party no. 7 for partition of the property including the land, which is the subject matter of the ceiling proceedings, on an application for impleadment being filed by the petitioners, the same was allowed with the observation that they were necessary and proper parties. Therefore, it is inconceivable as to why in ceiling proceedings, at the appellate stage between the same parties, the petitioners should not be impleaded. He also submits that allowing of such an application for impleadment does not mean a conclusive finding on the question of heirship of the petitioners, which would have to be settled separately after framing of issues as is done in a suit by virtue of application of CPC vide Section 37 and 38 of the Act, 1960. 4. Per contra, learned counsel for the private respondents, Sri Aditya Tewari submits that the appellate authority has not committed any error in this regard as he has relied upon the report of the Tehsildar, which in turn, is based on evidence collected by him. He also submits that while doing so, the appellate authority has also considered the objections of the petitioners. Therefore nothing more was required. As regards the order of the civil court dated 21.7.2004 allowing the application for impleadment of the petitioners as defendants in Suit No. 123 of 2004 is concerned, he contended that, in fact, the Trial Court had said that whether the applicants were sons of Shiv Balak or not can be considered only after evidence. Therefore nothing more was required. As regards the order of the civil court dated 21.7.2004 allowing the application for impleadment of the petitioners as defendants in Suit No. 123 of 2004 is concerned, he contended that, in fact, the Trial Court had said that whether the applicants were sons of Shiv Balak or not can be considered only after evidence. Therefore, no benefit of the said order is available to the petitioners herein. 5. It is not in dispute that the proceedings before the prescribed authority and the appellate authority under the Ceiling Act, 1960 are to be held as per the procedure prescribed in the Code of Civil Procedure and are applicable to trials and appeals thereunder. Reference may be made in this regard to Section 37 and 38 of the Act, 1960. 6. The provisions of Order I Rule 10 (2) are very clear and they provide that 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. Order XXII Rule 5 very categorically provides that where a question arises as to whether any person is or is not legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. 7. It is very well settled that any observation/finding recorded by the Court in proceedings for impleadment of a party, are not conclusive as regards the question of heirship, which is to be framed separately and with regard to which, a separate finding is to be recorded based on evidence. In the Civil Suit referred hereinabove initiated at the behest of private respondent no. 7, Satya Narayan for partition of the property including the lands, which are the subject matter of the ceiling proceedings,the petitioners have already been impleaded as defendants vide order dated 21.7.2004 against which the revision of the plaintiff (respondent no. 7) herein has been dismissed. In the Civil Suit referred hereinabove initiated at the behest of private respondent no. 7, Satya Narayan for partition of the property including the lands, which are the subject matter of the ceiling proceedings,the petitioners have already been impleaded as defendants vide order dated 21.7.2004 against which the revision of the plaintiff (respondent no. 7) herein has been dismissed. In the appellate ceiling proceedings, the petitioners had sought time for adducing evidence to rebut the report of the Tehsildar after filing the objections. 8. Considering the facts and circumstances of the case, it cannot be said that the petitioners herein are not necessary and proper parties in the proceedings pending before the concerned authorities. The Court has been informed that the appellate proceedings, out of which these proceedings have emanated, have concluded and the appellate authority had remanded the matter back to the prescribed authority, where it is still pending. A decision on this issue is necessary for the reason that the proceedings before the prescribed authority are still pending. 9. In these circumstances, as order of the appellate authority, which proceeds merely on the basis of the report of the Tehsildar without giving due weightage to the order of the civil court passed in a suit between the concerned parties involving the same property, thereby rendering it erroneous, is hereby quashed. The petitioners herein shall be impleaded in the proceedings before the prescribed authority without prejudice to the rights of the parties in the said proceedings on the question of heirship of Shiv Balak, which shall be decided after framing issue in this regard and allowing the parties to adduce their evidence in respect thereof. It is not out of place to mention that though the revisional order passed in Suit proceedings by the Civil Court is not on record but Sri Tewari has placed the same before the Court and on a perusal of the same, the Court finds that the said revision was dismissed without interfering with the order of the civil court dated 21.7.2004. As already observed, the question of heirship shall be decided separately, as aforesaid, which is also the view taken by the revisional Court in the suit proceedings. 10. For the reasons aforesaid, the writ petition stands allowed. As already observed, the question of heirship shall be decided separately, as aforesaid, which is also the view taken by the revisional Court in the suit proceedings. 10. For the reasons aforesaid, the writ petition stands allowed. The impleadment of the petitioners is only to facilitate the proceedings wherein the question of heirship shall be decided separately and the same does not decide any issue conclusively, on merits.