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2020 DIGILAW 523 (UTT)

BABU LAL v. CHAIRMAN, BOARD OF REVENUE

2020-12-02

SHARAD KUMAR SHARMA

body2020
JUDGMENT Hon'ble Sharad Kumar Sharma, J.(Oral) (Via Video Conferencing) Heard learned counsel for the parties at the length. 2. The predecessor of the present petitioner Mr. Guddar Ram, had instituted a suit by invoking the provisions contained under Section 229 B, of the U.P. Zamindari Abolition and Land Reforms Act, 1950 by filing the same, on 23.06.1987, seeking a declaration of title in relation to the property which was appropriately described at the foot of the plaint which constituted to be a land lying in Khasra No.946/01, having an area of 1.49 acres, situated in Mauja Arkedia Grant Pargana Pachwa Doon, District Dehradun (hereinafter to be called as a property in question). 3. The said suit in which the respondent no.3, was defendant no.3, therein, had contested the suit, and, ultimately, the Court of Assistant Collector, First Class, vide its judgment dated 25.05.1998, had decreed the suit. As a consequence thereto, the predecessor of the present petitioner was declared as to be a Sankramani Bhumidhar. The effect of the said decree of 25.05.1998, is being sought and attempted to be argued by the learned counsel for the petitioners, on the pretext and from the prospective that, the said decree, was rendered with the finding which was recorded, that the predecessor of the present petitioner was in possession of the disputed land and the nature of the possession of the predecessor of the petitioner, was hostile to the knowledge and interest of respondent no.3. 4. But, the fact remains, that as against the judgment and decree of the Assistant Collector, First Class dated 25.05.1998, the Appeal was preferred being Appeal No.41 of 1997-1998, Jamil vs. Guddar and others, i.e. by respondent no.3, under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. 5. 4. But, the fact remains, that as against the judgment and decree of the Assistant Collector, First Class dated 25.05.1998, the Appeal was preferred being Appeal No.41 of 1997-1998, Jamil vs. Guddar and others, i.e. by respondent no.3, under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. 5. As against the judgment and orders dated 25.05.1998, passed by the Assistant Collector, in the proceedings of Case No.39 of 1992-1993 under Section 229-B, two appeals were preferred one being ZA Appeal No.22 of 1997-1998, Guddar vs. Jameel, and another ZA Appeal No.41 of 1997-1998, Jameel vs. Guddar, both the appeals thus referred above were consolidated by the Court of Additional Commissioner (Adm) Garhwal, and was decided by the judgment dated 14.07.2000, and the matter was remanded for reconsideration with the following directions:- ^^vihysa vkaf'kd :i ls Lohdkj dj vk{ksfir fu.kZ;@vkns'k fnukad 25-5-1998 o vkKfIr fnukad 14-7-1998 [kf.Mr fd;s tkrs gSa rFkk okn i=koyh bl funsZ'k ds lkFk izfrizflr dh tkrh gS fd miyC/k lkl; dk lE;d foospu@fo'ysl.k dj vkyksP; okn dk fof/kor xq.knks"k ds vk/kkj ij fuLrkj.k fd;k tk;A i{kdkj voj U;k;ky; esa fnukad 29-8-2000 dks mifLFkr gksaA bl U;k;ky; dh i=koyh lafpr gksaA** 6. After the judgment of remand by the appellate court of Additional Commissioner (Adm) vide its judgment dated 14.07.2000, the proceedings of 229 B filed by Guddar, revived as was numbered as Case No.05 of 2001-2002, Guddar vs. State, the Court of Assistant Collector 1st Class, Massouri, Camp Dehradun, decided the same vide its judgment dated 01.02.2003, and the following decree was rendered, by the Court, which was as hereunder:- ^^xqnM iq= eqrcuk rqylh dks [kljk uaEcj 946@16 49 ,dM ekstk vkjdsMhok xkajV ijxuk ioknwu ftyk nsgjknwu dks foijhr dCts ds vk/kkj ij ladef.k; Hkwfe nj ?kksf"kr fd;k tkrk gSaA ;g vkns'k esjs }kjk vkt fnukad 1-12-2003 dks [kqys U;k;ky; es gLrkfgr ,oa mn?kksf"kr fd;s x,A ckn vko';d dk;Zokgh i=koyh nkñ nñ gksA** 7. In accordance with the memo of the appeal, (annexure no.4 of the Writ Petition) it shows that the said appeal was instituted by respondent no.3, before the Court of Additional Commissioner, Garhwal Mandal, Pauri Camp, Dehradun, on 18.12.2003. In accordance with the memo of the appeal, (annexure no.4 of the Writ Petition) it shows that the said appeal was instituted by respondent no.3, before the Court of Additional Commissioner, Garhwal Mandal, Pauri Camp, Dehradun, on 18.12.2003. As per the records of the Writ Petition, the property in question, which was disputed, and which was the subject matter of the aforesaid suit under Section 229 B, was conveyed by the respondent no.3, to respondent no.2, of the present Writ Petition by virtue of the registered sale deed dated 10.01.2003. 8. The learned counsel for the petitioner has argued this Writ Petition; in which a challenge has been given by the petitioner to the Revisional Court's order dated 29.07.2013, passed by respondent no.1, whereby, the impleadment of the respondent no.2, in the pending appeal being Appeal No.18 of 2003-2004, Jameel vs. Guddar, was allowed, the challenge is on the pretext that (1) There could not have been a valid conveyance in favour of the respondent no.2, by the respondent no.3, because the declaration was made on the to the effect, that, Guddar, was held by the Assistant Collector, to be in a hostile possession of the disputed property, which was contended to be recorded in the revenue records in the name of Jamil. (2) That the said conveyance was itself defective and it suffered from various legal vices including the vices of Section 52 of the Transfer of the Property Act, having being executed during the pendency of judicial proceedings. (3) He submits that once the Jamil has preferred an appeal, as against the Trial Court judgment dated 01.12.2003, and there was a prior sale, which was already made in favour of the respondent no.2, the appeal at his behest i.e. respondent no.3, before the Commissioner would not have been maintainable, because he has lost his interest as a consequence of the deed of conveyance executed by the respondent no.3, in favour of the respondent no.2 on 10.04.2003. 9. 9. It is during the pendency of the Z.A. Appeal No. 18 of 2003-2004, that the respondent no.2, has shown to have filed an application on 13.11.2007 under Order 22 Rule 10, to be read with Order 1 Rule 10 of C.P.C., seeking himself to be impleaded as party in appeal under the strength, that the rights and interest in relation to the property in question, has been conveyed to him by the sale deed dated 10.04.2003, and as a consequence of the said sale deed the rights has been devolved upon him and, hence, he would be a necessary party to be impleaded as a party in the appeal, as the appeal could not be effectively decided in his absence, without making him as a party in appeal. 10. The said application of the petitioner dated 13.11.2007, was objected by the present petitioner by filing an objection on 04.03.2008, on the pretext, that, the sale deed itself was barred by Section 52, of the Transfer of the Property Act, and that the sale deed was contrary to the decree dated 01.12.2003, as was already rendered in his favour, which was put to challenge in an appeal which was filed by Jamil and he would not be a necessary party and appropriate party to the Appeal itself, consequently, the Appellate Court while considering the application preferred by the respondent no.2, proceeded to reject the same by an order of 28.01.2009. 11. Mr. Siddhartha Sah, learned counsel for the petitioners supported the order dated 28.01.2009, rejecting the impleadment application of the respondent no.2, on the ground that, the sale itself was vicious, as no saleable interest was left to be conveyed by Jamil respondent no.3, in favour of the respondent no.2, on account of the nature of decree, which was a subject matter in an Appeal and, hence, he ought not to have been impleaded as a party in the appeal. He further submits that the order of the Appellate Authority dated 28.01.2009, has been quite rationally based upon the judicial pronouncements, as it has been laid down and dealt with by the Appellate Authority, while rejecting the application for impleadment of respondent no.2, vide its order dated 28.01.2009. 12. He further submits that the order of the Appellate Authority dated 28.01.2009, has been quite rationally based upon the judicial pronouncements, as it has been laid down and dealt with by the Appellate Authority, while rejecting the application for impleadment of respondent no.2, vide its order dated 28.01.2009. 12. With all due reverence at my command; the tenacity of the arguments of the learned counsel for the petitioner, is not sustainable, under law, in the light of the implications contained under Order 22 Rule 10, to be read with the Order 1 Rule 10 of the CPC made applicable by Section 341 of the U.P. Z.A. & L.R. Act. In fact, the Appellate Authority, while rejecting the impleadment application, by the order dated 28.01.2009, it could be inferred and said, that it was by way of a non consideration of the entire controversy, from its correct prospective, and particularly, in the light of the authorities; which was relied by the petitioners, while giving the challenge to the impleadment application which was filed by the respondent no.2. Aggrieved by the said order, the respondent no.2, had preferred a revision under Section 333 of the U.P. Z.A. and L.R. Act, being Revision No.95 of 2009, Dr. Indu Prakash Eren vs. Jamil and others. 13. The said revision before Board of Revenue, Uttarakhand, was opposed by the present petitioner by filing an objection before the Revisional Court on 07.08.2009, which has been allowed by the Revisional Court by the impugned order dated 29.07.2013 which is under challenge in this Writ Petition. After having heard the rival contentions of the learned counsel for the parties to the Writ Petition at length, this Court is of the view that, if the principles which had been enunciated under Order 22 Rule 10 of the CPC, is taken into consideration, which is quoted hereunder: “10. Procedure in case of assignment before final order in suit.—(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachement of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)." 14. (2) The attachement of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)." 14. It is the subsequent devolvement of an interest over the disputed property, which is a subject matter of a suit in favour of the respondent no.2 by respondent no.3 (the appellant), if it is conveyed, then the person in whose favour, the rights has accrued becomes a necessary party to defend his interest over the subject matter of an appeal; which was arising out of the proceeding of declaration under Section 229 B because the rights have been conveyed to respondent no.2. Even otherwise also, as per the arguments, which has been extended by the learned counsel for the parties, as against the sale deed of 10.04.2003, the propriety and the veracity of the said sale deed dated 10.04.2003, is already a subject matter of Civil Suit, which is yet to be adjudicated by the regular Civil Court; where the suit in relation thereto is already pending consideration and contested by the petitioner. Besides this there is an another collateral proceedings which has been initiated by the respondent no.2, for getting himself mutated in the revenue records, under the strength of the sale deed dated 10.04.2003, which is yet to be decided on merits, and is being stated by the petitioner, is being contested by him. 15. Be that as it may be. Besides this there is an another collateral proceedings which has been initiated by the respondent no.2, for getting himself mutated in the revenue records, under the strength of the sale deed dated 10.04.2003, which is yet to be decided on merits, and is being stated by the petitioner, is being contested by him. 15. Be that as it may be. I am of the view that, since, there happens to be multiple proceedings, which has arisen out of the execution of sale deed dated 10.04.2003, by Jamil the respondent no.3, herein in favour of the respondent no.2 which are already pending before the competent courts, apparently, it shows that the stakes and interest over the subject matter that is the property in dispute is still to be adjudicated on merits by the regular Civil Court and in the appeal too on in its own merits and this Court while sitting in an equitable jurisdiction, is of the view that the respondent no.2, would obviously be a necessary party to the appeal, to defend the interest devolved upon him by sale deed dated 10.04.2003, where the declaratory rights of Guddar, has been put to challenge and the predecessor owner of the respondent no.2, who had conveyed the property and, hence, the respondent no.2, has stepped into the shoes of the respondent no.3, he becomes a necessary and appropriate party. Even otherwise also the respondent no.3, i.e. the appellant of ZA Appeal No.18 of 2003-2004, after execution of the sale deed on 10.04.2003, in favour of the respondent no.3, would have lost his interest, to effectively contest the appeal, and decision to the contrary if is rendered in the appeal, in the absence of respondent no.2, being made as party, who is the subsequent purchaser, there would be a possibilities of his interest being adversely effect, if he is not made party to the Appeal, thus also respondent no.2 was the necessary and proper party in appeal, for its effective adjudication on merits, allowing of impleadment application by the Revisional Court, goes in the spirit of provisions of Order 1 Rule 10 to be read with Order 22 Rule 10 (1) of C.P.C. consequently, after having gone through the Revisional Courts order, I do not find any anomaly in the said order. 16. Consequently, the Writ Petition lacks merit and the same is accordingly dismissed.