Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 221 (JHR)

Ashish Toppo v. Samu Kachhap

2019-01-22

RONGON MUKHOPADHYAY

body2019
JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. J.J. Sanga, learned counsel for the petitioner and Mr. Venkateshwar Gopal, learned counsel appearing for the respondent No. 1. None appears on behalf of the other respondents in spite of valid service of notice. 2. In this writ application, the petitioner has prayed for quashing of the order dated 14.06.2013 passed by the learned 2nd Additional Munsif, Ranchi in Title Suit No. 48/2002, whereby and whereunder the intervention application preferred on behalf of the petitioner has been rejected. 3. A Title Suit has been preferred by the plaintiff/respondent Nos. 2 and 3 being Title Suit No. 48/2002 in which the following prayer was made: a) That the decree for cancellation of Deed No. 398, page Nos. 134 to 136 volume 8, Book No. I, dated 23.01.1941 comprising the area of Khata 92, Khewat No. 5, revenue Thana No. 178, Plot No. 519, area 88 decimals as mentioned in the Schedule A at the foot of the plaint be passed in favour of the plaintiff and also the proforma defendants 1 to 3 against the defendants 4 to 6. b) That the possession of the plaintiff over Khata No. 92 may not be disturbed by defendant Nos. 4 to 6. c) That the right, title and interest along with the possession be declared in respect of the land in question which is fully described in the Schedule A at the plaint which is the part and parcel of the plaintiff. d) That the cost of the suit be awarded in favour of the plaintiff and the deed fraudulently executed by defendants is invalid, in-operative deed and the direction to be given to the District Sub-Registrar, Ranchi for the cancellation of the deed i.e. deed No. 398 dated 23.01.1941, Book No. I, Volume No. 8, pages 134 to 136. e) Any relief or reliefs be awarded in favour of the plaintiff which is deem, fit and proper. 4. The petitioner claims that he is a necessary party to the suit and therefore his intervention application be allowed. 5. e) Any relief or reliefs be awarded in favour of the plaintiff which is deem, fit and proper. 4. The petitioner claims that he is a necessary party to the suit and therefore his intervention application be allowed. 5. It is the case of the petitioner that the land comprising an area of 88 decimals situated in Plot No. 519, Katha No. 92, Thana No. 178 in village Ara, P.S.- Tatisilway, District-Ranchi originally belonged to and was recorded in the name of Budhu Oraon, Bishwanath Oraon, both sons of Etwa Oraon and Chotka Jhirga Oraon son of Gandura Oraon in the revisional survey record of rights. Budhu Oraon, Bishwanath Oraon and Chotka Jhirga Oraon during their life time held possessed and peacefully cultivated the land in question. Subsequently, Budhu Oraon died issueless and after his death his right, title and interest got devolved in the share of the other two recorded tenants namely Bishwanath Oraon and Chotka Jhirga Oraon. The recorded tenants Bishwanath Oraon and Chotka Jhirga Oraon held possessed and peacefully cultivated the land in question but they had subsequently sold the entire 88 decimals of land to Anand Masih Toppo by virtue of registered sale deed No. 398 dated 23.01.1941. The petitioner/intervener claims himself to be the grandson of the purchaser Anand Masih Toppo. The said Anand Masih Toppo had come in peaceful cultivating possession of the land and enjoyed it during his life time and after his death he left behind his two sons namely Martin Toppo and John Paul Toppo. After the death of Martin Toppo his three sons namely Milan Toppo, Pradip Toppo and Prabhat Toppo came in exclusive possession of the land along with John Paul Toppo who is the father of the present petitioner. Since the parties did not feel convenient to stay together a Partition Suit was preferred by John Paul Toppo being Partition Suit No. 17/1959 in which half of the entire land in question was claimed by him as his share. Since the parties did not feel convenient to stay together a Partition Suit was preferred by John Paul Toppo being Partition Suit No. 17/1959 in which half of the entire land in question was claimed by him as his share. Accordingly the Partition Suit No. 17/1959 was disposed of and a final decree was prepared in which the father of the petitioner was allotted 44 decimals of land in Khata No. 92 by carving out Plot No. 519/A and as per Schedule B of the final decree and 44 decimals of land was allotted to Milan Toppo, Pradip Toppo and Prabhat Toppo by carving out a separate Plot No. 519/B. It is the further case of the petitioner that his father got his name mutated in the office of Circle Officer, Namkum Anchal. 6. It has thus been claimed that in view of the fact that the Subject matter of the suit is with respect to cancellation of the sale deed dated 23.01.1941 and since the petitioner claims that by virtue of the decree passed in the Partition Suit his father and subsequently the petitioner has a right, title and interest over the said plot of land therefore he becomes a necessary party and therefore the intervention application preferred by the petitioner under Order-I, Rule 10, CPC deserves to be allowed. 7. Mr. J.J. Sanga, learned counsel for the petitioner has submitted that in the Partition Suit half of the entire area of 88 decimals of land were allotted to the father of the petitioner and the rest half to the defendant Nos. 4 to 6 in Original Title Suit No. 48/2002. He claims that since the subject-matter of the dispute is with respect to the sale deed and upon which the respondent Nos. 4 to 6 has a share in the property and the petitioner being the son of John Paul Toppo automatically becomes a necessary party and therefore the learned court below has on an erroneous ground rejected such intervention application preferred by the petitioner. 8. Mr. Venkateshwar Gopal, learned counsel appearing for the respondent No. 1 has stated that the petitioner has been set up at the behest of respondent Nos. 4 to 6 on account of the fact that respondent Nos. 4 to 6 did not adduce any evidence nor had they argued their case which resulted in arguments being closed. 8. Mr. Venkateshwar Gopal, learned counsel appearing for the respondent No. 1 has stated that the petitioner has been set up at the behest of respondent Nos. 4 to 6 on account of the fact that respondent Nos. 4 to 6 did not adduce any evidence nor had they argued their case which resulted in arguments being closed. It has further been submitted that the timing of the application preferred by the petitioner also raises doubt about the intention of the petitioner which appears to be only to delay the disposal of the suit. It has thus been submitted that there being no error apparent on the face of the record the impugned order dated 14.06.2013 deserves to be sustained. 9. The subject-matter of the suit appears to be cancellation of the sale deed dated 23.01.1941 and the defendant Nos. 4 to 6 as well as the present petitioner claims the land on the basis of such sale deed and which had devolved upon them on the death of their predecessors and the entire land of 88 decimals was bifurcated into two portions 44 decimals of land in favour of the petitioner and 44 decimals of land was given in favour of the descendants of Martin Toppo. The plaintiff while making a prayer for cancellation of the sale deed dated 23.01.1941 had made the legal heirs of Martin Toppo as defendant Nos. 4 to 6 as it has been claimed by the plaintiff that respondent Nos. 4 to 6 were disturbing their possession over the suit property. Since half of the share of the disputed land had also devolved upon the petitioner he automatically becomes a necessary party in the suit. The learned court below seems to while rejecting the application preferred by the petitioner being swayed by the conduct of defendant Nos. 4 to 6 who neither had adduced any evidence nor had argued their case and their arguments were closed. It has been inferred by the learned court below that the petitioner has filed a proxy petition at the behest of defendant Nos. 4 to 6. However, whether the petitioner is a necessary party or not has not at all been appropriately considered by the learned court below. It has been inferred by the learned court below that the petitioner has filed a proxy petition at the behest of defendant Nos. 4 to 6. However, whether the petitioner is a necessary party or not has not at all been appropriately considered by the learned court below. An application for impleadment of a party has to be guided by certain principles as laid down in the case of " Vidur Impex and Traders Private Limited and others v. Tosh Apartments Private Limited and others, (2012) 8 SCC 384 " and the same reads as under: "41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment. 10. The background facts as enumerated above would definitely lead this Court to come to a conclusion that the petitioner was a necessary party in the suit as his case was at par with that of defendant Nos. 10. The background facts as enumerated above would definitely lead this Court to come to a conclusion that the petitioner was a necessary party in the suit as his case was at par with that of defendant Nos. 4 to 6 and the subject-matter of the suit was directly connected with the partition of the properties between defendant Nos. 4 to 6 as well as the present petitioner and therefore mere inferences drawn by the learned court below cannot cloud the claim of the petitioner to be impleaded as a party defendant. 11. In the circumstance narrated above, therefore, this application stands allowed and the impugned order dated 14.06.2013 passed by the learned 2nd Additional Munsif, Ranchi in Title Suit No. 48/2002 is hereby quashed and set aside with a further direction to the learned trial court to proceed in accordance with law.