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2019 DIGILAW 740 (JHR)

Kali Charan Mahto v. Gangadhar Mahto

2019-03-26

ANUBHA RAWAT CHOUDHARY

body2019
ORDER : 1. Heard Mr. Kundan Kumar Ambastha, counsel appearing on behalf of the appellants. 2. Heard Mr. Lalit Kumar Lal, counsel appearing on behalf of the respondents. 3. Counsel for the parties jointly submit that although the instant case has been listed under the heading for orders, but the case may be taken up for final disposal and accordingly they have argued the case on the merits at length. 4. Counsel for the appellants submits that this appeal has been filed against the judgment and decree dated 28.01.2002 (decree signed on 07.02.2002) passed by 1st, Additional Judicial Commissioner, Khunti in Title Appeal No. 50 of 2000 setting aside the judgment and decree passed in Partition Suit No. 230 of 1985 and remanding back the case to the learned trial court directing the plaintiffs/appellants to add the Deputy Commissioner, Ranchi a party in the suit. 5. Counsel for the appellants submits that the matter arose out of Title Partition Suit No. 230 of 1985, which was dismissed by the learned trial court. He submits that in the matter of partition suit, which was involved in this case, no relief was claimed against the State and the State was neither a necessary party nor a proper party and the matter was exclusively between the plaintiffs and the defendants. Accordingly, the learned lower appellate court was not justified in holding that the Deputy Commissioner, Ranchi was a necessary party and remanding the matter to the learned trial court by directing the appellants to make the Deputy Commissioner, Ranchi as a party in the suit. He submits that the suit was for partition of suit land to the extent of ½ share including ½ share in the compensation amount arising out of land acquisition. 6. The counsel further submits that before the learned trial court one of the issues which was framed was issue no. 11 as to whether the suit is barred on account of non-joinder of a necessary party? This issue was decided by the learned trial court vide Para 17 of the judgment against the plaintiff. 6. The counsel further submits that before the learned trial court one of the issues which was framed was issue no. 11 as to whether the suit is barred on account of non-joinder of a necessary party? This issue was decided by the learned trial court vide Para 17 of the judgment against the plaintiff. He submits that even in the written statement, the defendants did not raise a plea that the State having not been made party, the suit was barred on account of non-joinder of necessary party and it was argued by the plaintiff before the learned trial court that such plea was taken at the stage of argument, which is not permissible in law. However, the learned trial court held that the Deputy Commissioner was a necessary party and held that such legal plea can be raised at any stage. The learned trial court dismissed the suit. The appellant filed an appeal and the learned lower appellate court vide impugned order remanded the case to the learned trial court after setting aside the judgment and decree passed by the trial court with a direction to allow the plaintiffs to add Deputy Commissioner as a party in the suit. 7. Counsel for the appellants refers to Order 1, Rule 3 of the Code of Civil Procedure, 1908 and submits that as per Order 1, Rule 3 of C.P.C., persons may be joined in one suit as defendants, only when any right to relief in respect of, or arising out of the same act or transaction or series of acts or transactions is alleged to exist against such person, whether jointly, severally or in the alternative. He submits that no relief was claimed against the State and accordingly, it cannot be said that the Deputy Commissioner was a necessary party or a proper party. He further submits that the learned lower appellate court ought to have decided the case on merits, instead of remitting back the case to the learned trial court, allowing the plaintiffs/appellants to add the Deputy Commissioner, as a party in the suit. He further submits that the learned lower appellate court ought to have decided the case on merits, instead of remitting back the case to the learned trial court, allowing the plaintiffs/appellants to add the Deputy Commissioner, as a party in the suit. He has relied upon a judgment passed by this Court reported in 2005 (2) JLJR 489 (Uma Pada Choudhary vs. Panchanand Choudhary) and submits that in view of the ratio laid down by this Court at Para 8 of the said judgment, that case that State was not a necessary party, as no declaration of title and so-called possession was sought for against the State and it was held that under such circumstances, there was no necessity of impleading the State as a defendant in the suit. 8. Counsel appearing on behalf of the respondents, on the other hand, submits that admittedly the parties herein are tribals and he has referred to the provisions of Bihar Scheduled Areas Regulation, 1969 and has referred to amendment made in the Code of Civil Procedure, 1908, so far as it relates Order 1, Rule 3 of Code of Civil Procedure, 1908 when applied to schedule areas and submits that by virtue of aforesaid regulation of 1969, it is a statutory requirement that in a suit for declaration of title or for possession relating to immovable property of members of Scheduled Tribe as specified in Part III of the Schedule 2, the Constitution (Scheduled Tribes) Order, 1950, the Deputy Commissioner concerned, shall be joined as a defendant. 9. The counsel submits that Court has power to pass appropriate order for addition or for deletion of party and for that purpose no specific petition is required, particularly when there is a statutory requirement to make the Deputy Commissioner as a party in a suit for declaration of title or for possession relating to immovable properties of Schedule Tribes in schedule areas. He submits that the learned court below has exercised such power and has passed order in consonance with the aforesaid regulation of 1969 although the aforesaid provision of law has not been mentioned in the impugned order and accordingly, there is no illegality or perversity in the impugned order of remand, which does not call for any interference. 10. He submits that the learned court below has exercised such power and has passed order in consonance with the aforesaid regulation of 1969 although the aforesaid provision of law has not been mentioned in the impugned order and accordingly, there is no illegality or perversity in the impugned order of remand, which does not call for any interference. 10. In response, counsel for the appellants submits that the proceeding involved in the suit was a partition suit and accordingly, the parties were not seeking any declaration of title or for possession and there is no dispute that in the matter regarding partition, all the parties of a family are joint owners of the property and accordingly, he submits that the aforesaid provisions of The Bihar Scheduled Areas Regulation, 1969 amending the Code of Civil Procedure as applicable in schedule areas, has no applicability to the facts and circumstances of this case. 11. After hearing the counsels for the parties and after considering the materials on record, this Court finds that admittedly the proceeding herein arises out of Title Partition Suit No. 230 of 1985, wherein the plaintiff claimed share to the extent of half share of the property involved in the case and half share of the compensation amount. 12. From the perusal of materials on record, this Court further finds that no relief whatsoever was claimed against the State or Deputy Commissioner and no declaration of title and/or possession was sought for by the plaintiff in the title suit much less against the State or the Deputy Commissioner. In such circumstances, in view of the Judgment passed by this Court reported in 2005 (2) JLJR 489 (Uma Pada Choudhary vs. Panchanand Choudhary), this Court is of the considered view that the Deputy Commissioner is not a necessary party in the suit and accordingly, the impugned judgment which has been passed by the learned lower appellate court holding that the Deputy Commissioner is a necessary party and remanding the matter to the learned trial court is not sustainable in law. It has been held in Para 8 of the aforesaid judgment as follows:- “Having heard the learned Counsel for the appellants and perused the records, I find that plaintiff and sought reliefs of declarations of their right, title and interest and confirmation of possession and for declaration that the order of the Circle Officer for their eviction is illegal and without jurisdiction. No declaration of title and/or possession was sought for against the State of Bihar. Such being the case there was no necessity of impleading the State of Bihar as a defendant in the suit. The nature of the claim of the appellants was purely relating to title and possession with respect to the suit land which were allegedly interfered with, by defendants, giving rise to the cause of action for the suit. In that view, there was no necessity to add the State of Bihar as a defendant as the issues involved were the contesting claims of right, title between the plaintiffs and the defendants. So far the order of the Circle Officer is concerned, the same has not declared any right and title. The Circle Office held that Kurfa settlement in favour of the father of the plaintiff No. 1 was contrary to the provision of Santhal Parganas Tenancy Act without taking into consideration that at the time of the said settlement, the Act itself was not in existence and it was brought on statute book much thereafter. There was no question of contravention of any provision which was then not in existence. The Court below has thus committed serious errors in arriving at the finding that the suit was bad for non-joinder of the State of Bihar and on that ground dismissing the plaintiffs suit and appeal. It is thus held that the State of Bihar was not a necessary party to the suit and the reliefs prayed for by the plaintiffs relating to declaration of their title and confirmation of possession should have been considered and decided even in absence of the Circle Officer or the State of Bihar.” 13. It is thus held that the State of Bihar was not a necessary party to the suit and the reliefs prayed for by the plaintiffs relating to declaration of their title and confirmation of possession should have been considered and decided even in absence of the Circle Officer or the State of Bihar.” 13. So far as the argument of the counsel for the respondents regarding applicability of The Bihar Scheduled Areas Regulation, 1969 and its amendment to the provisions of Code of Civil Procedure Order 1, Rule 3 is concerned this Court finds that the following provision was added to Rule of Order 1 of the Code of Civil Procedure, 1908 i.e. :- “Provided that in suits for declaration of title or for possession relating to immovable properties, of member of the scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950” the Deputy Commissioner shall also be joined as a defendant.” 14. This Court is of the considered view that a partition suit does not relate to declaration of title or for possession relating to immovable properties and accordingly, the aforesaid provision as relied upon by the counsel for the respondents has no applicability to the facts and circumstances of this case. Although, in the impugned order, The Bihar Scheduled Areas Regulation, 1969 has not been referred, but the impugned order cannot be sustained by referring to the aforesaid regulation of 1969. 15. As a cumulative effect to the aforesaid findings of the impugned judgment and decree are hereby set-aside and the matter is remitted to the learned lower appellate court for fresh decision of the appeal. 16. The partition suit is of the year 1985 and the appeal itself is of the year 2002, accordingly, the learned lower appellate court is directed to take up the appeal and decide the same in accordance with law as expeditiously as possible. 17. The Lower Court Records which has been received, are directed to be immediately sent back to the concerned Court below.