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2019 DIGILAW 1273 (JHR)

Baidyanath Sarkar v. Sanichar Kisku

2019-07-12

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order dated 07.03.2019 passed in Title Suit No.161 of 2015 by the Civil Judge (Sr. Div.)-III, Dhanbad, is under challenge, whereby and whereunder petition filed by the petitioner dated 01.10.2018 under Order 1 Rule 10(2) of the C.P.C. read with Section 151 of the C.P.C., has been rejected. 2. It is the case of the petitioner as per the pleading made in the writ petition that the land appertaining to Khata No.15 having 38 plots, total area 16.91 acres in mouza Kusumdaha @ Bagula recorded in the name of Prafull and Bibhuti Bhushan Sarkar. The petitioner being the only surviving descendant of the recorded tenant have right, title and interest over the said property. Khata Nos.8 and 9 bearing plot no.74, area 0.3 decimal, plot no.75, area 0.3 decimal and plot no.76, area 18 decimal, total 24 decimals under Khata No.15 was recorded in the cadastral survey in the name of Maha Majhi, ancestors of the plaintiff and defendant as dar-raiyat. The respondent nos.1 to 3(plaintiffs) have filed Title Suit No.161 of 2015 against the respondent nos.4 to 13 (defendants) to the suit with respect to the land appertaining to C.S. Khata Nos.8 and 9 (Revisional Survey Khata No.44) bearing plot nos.74, 75 and 76 by wrongly describing the area of the suit land of mouza Kusumdaha @ Bagula for a decree for declaration of plaintiff’s right, title, interest and confirmation of the possession over the suit land and for permanent injunction. The further case of the petitioner is that in the revisional survey, when the name of the plaintiffs have been wrongly entered into the record of rights, the petitioner has filed petition under Section 87 of the C.N.T. Act before the Settlement Officer, Dhanbad for making necessary correction in the entry made being registered as Case No.74/2014 which is still pending and waiting for the outcome of the Title Suit No.161 of 2015. At that juncture, petitioner has filed a petition on 01.10.2018 under Order 1 Rule 10(2) of the C.P.C. read with Section 151 of the C.P.C. for his impleadment as party to the proceeding which, however, has been objected by the respondents, upon which impugned order has been passed rejecting the aforesaid petition on the ground that the petitioner is not a necessary party, in absence thereof, there is no possibility of proper adjudication of the issues. The said order has been challenged by the petitioner, inter-alia on the ground that the petitioner being the descendant of the raiyat, therefore, having full right over the land in question and hence the land upon which the plaintiff vis-a-viz defendant are claiming the title is directly conflicting with its interest, therefore, he is necessary party but the trial Court without appreciating this aforesaid aspect of the matter has rejected the petition, therefore, the instant writ petition. 3. Having heard the learned counsel for the petitioner and after going across the pleading made therein as also the finding recorded in the impugned order, this Court is of the view that before entering into the legality and propriety of the order, the provision of Order 1 Rule 10 of the C.P.C. needs to be referred which reads as hereunder:- “10. Suit in name of wrong Plaintiff.-(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties.-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 nay person who ought to have been joined, whether as order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended.-Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877), Section 22], the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” 4. It is evident from the aforesaid provision that the Court having conferred with the power to act at any stage of the proceeding to struck out, the name of any party improperly joined, whether as plaintiff or defendant 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, meaning thereby the permanent consideration for passing order for impleadment, the presence of the party is necessary for proper adjudication to settle all the questions. In the light of the aforesaid provision, the factual aspect as has been recorded by the trial Court as available on record transpires that the petitioner is claiming to be descendant of the recorded tenant having right, title and interest over the said property. In the light of the aforesaid provision, the factual aspect as has been recorded by the trial Court as available on record transpires that the petitioner is claiming to be descendant of the recorded tenant having right, title and interest over the said property. The plaintiffs and defendants are claiming their right by virtue of the entry made in the revenue record in the capacity of dar-raiyat and when the dispute arose in between the plaintiffs and the defendants, the declaratory suit has been filed, wherein the plaintiffs are claiming that they are the descendant of one Maha Manjhi recorded owner in respect of dar-raiyat in last cadastral survey who died leaving behind his four sons namely Pandu Manjhi, Pithu Manjhi, Suku Manjhi and Dagru Manjhi, who are came in peaceful possession after the death of Maha Manjhi and have acquired and indifisible title in respect of the suit land by virtue of continuously, peacefully, open and adverse possession and also paying the rent to the State of Bihar (now Jharkhand) since 1972. The Pandu Manjhi died leaving behind his only son namely Sonaram Manjhi who also died leaving behind his two sons namely Hari Chand Kisku and Sushil Kisku and two daughters namely Guriya Devi and Lalita Kumari besides his widow Bahamuni Kisku, who are defendant nos.1 to 4, whereas Pithu Manjhi died leaving behind his two sons namely Koka Manjhi the father of the plaintiff and Somra Manjhi. The Koka Manjhi died leaving behind his three sons namely Shanichar Kisku, Mangru Kisku and Nunulal Kisku the plaintiffs. Whereas Somra Manjhi died leaving behind his only daughter Lalita Devi, who is the defendant no.4 in the present suit. Likewise, the Suku Manjhi also died leaving behind his only son Mahabir Manjhi, who died leaving behind his two sons namely Sudhir Lal Kisku and Mithun Kisku and one daughter namely Shani Devi beside his widow Jaloni Devi. So far as Dagru Manjhi is concern, he has died issueless and subsequently his wife Rosuni Manjhiyan married to another person and left the place and Dagru Manjhi’s share devolved upon the heirs of Pandu Manjhi, Pithu Manjhi and Suku Manjhi. 5. So far as Dagru Manjhi is concern, he has died issueless and subsequently his wife Rosuni Manjhiyan married to another person and left the place and Dagru Manjhi’s share devolved upon the heirs of Pandu Manjhi, Pithu Manjhi and Suku Manjhi. 5. Plaintiff’s claim is that as per the Santhal Law of Inheritance marriage daughter has got no share in the property and as such, Shani Devi daughter of Mahabir Manjhi as well as Lalita Devi, daughter of Somra Manjhi has got no substantial right, title, interest and possession over the schedule “A” land, who have inherited/acquired the title of the said land. Although, the property is in jointness amongst the descendant of Pithu Manjhi, Suku Manjhi, Dagru Manjhi and Pandu Manjhi. The defendant are trying to part with the portion of the property. They have got no locus-standi the sale any portion of the property and therefore, the said suit has been filed giving a declaratory to that effect. 6. It is evident from the pleading made in the plaint that the plaintiff has filed a suit questioning the transfer of the property by the female members of the family and to that effect a declaratory has been sought for as would be evident from the relief made in the plaint which reads as hereunder:- “(a) For decree for declaration of plaintiffs right, title, interest and confirmation of possession in respect of Schedule “A” property. (b) For permanent injunction restraining the defendant their man agent servants from interfering any manner with plaintiffs peaceful possession and or from forceful attempt of taking possession over the schedule land. (c) For cost of the suit. (d) For any other or further relief for which plaintiffs are entitled to.” 7. Therefore, it is evident that the question of dispute lies in between the plaintiffs and the defendants with respect to their claim over the property in the capacity of dar-raiyat. 8. (c) For cost of the suit. (d) For any other or further relief for which plaintiffs are entitled to.” 7. Therefore, it is evident that the question of dispute lies in between the plaintiffs and the defendants with respect to their claim over the property in the capacity of dar-raiyat. 8. The petitioner case is that he is the original raiyati and he has made an application for making a necessary correction in the revenue record by filing an application by invoking the jurisdiction conferred under Section 87 of the C.N.T. Act but the plaintiffs and the defendants who are the respondents herein have taken the ground of pendency of the suit, therefore, the proceeding under Section 87 of the C.N.T. Act, is now pending before the competent Court and hence, having a right over the property, is a necessary party and as such, he has filed a petition under Order 1 Rule 10(2) of the C.P.C. 9. It is evident from the discussion made about the case of the plaintiffs vis-a-viz the defendants who are the private respondents and they are claiming with respect to their title which they have got by virtue of dar-raiyat while the case of the petitioner is that there is no right or inheritance, so far as dar-raiyat is concerned and therefore the date when the dar-raiyat has died, then the original dar-raiyat will be the petitioner and therefore, he is a necessary party. The trial Court while rejecting the same by holding therein that the presence of the petitioner is not necessary for proper adjudication of the issues raised by the plaintiff against the defendants to the suit. 10. This Court is in concurrence with the said view for the reason that in the plaint the relief sought for by the plaintiff against the defendants to the suit is regarding transfer of the property by the female members of the family who under the customary law has got no right of inheritance rather they can enjoy the property till their lifetime and as such the declaration as has been sought for by filing the said suit against the defendant only pertaining to the claim over the land which is said to be dar-raiyat. The petitioner is claiming the right by virtue of raiyat and as such when the claim of the plaintiff against the defendants pertaining in the capacity of dar-raiyat is having no nexus over the claim of the petitioner who is claiming the title of the property as raiyat warranting the order for impleadment in the suit, if he has any grievance with respect to the claim on the basis of raiyat, it is a separate cause of action which needs adjudication by filing the suit for getting declaration to that effect, what would be the effect after the death of the legal heirs of the original dar-raiyat and when there is dispute amongst them, therefore, question involved in the present suit so long as Dar-Raiyat is in subsistence which has got nothing to do with the Raiyat and if a Raiyat want declaration in that regard he will have to get a declaration from the competent Court and further the petitioner even, if impleaded as party, he cannot get a relief declaring right over the property hence the petitioner cannot be said to be a necessary party. 11. The provision of Order 1 Rule 10(2) of the C.P.C. clearly stipulates that a party is said to be necessary in absence thereof the proper adjudication of the suit is not possible but as has been observed hereinabove and for the aforesaid reason, according to the considered view of this Court, the finding as has been recorded by the trial Court holding therein that the presence of the petitioner is not necessary for making him necessary party effecting the proper adjudication of the suit, therefore, this Court is of the view that the trial Court has committed no error in passing the said order warranting any interference under Article 227 of the Constitution of India. 12. Accordingly, this writ petition fails, hence it is dismissed.