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2020 DIGILAW 935 (ALL)

Kamla Devi v. Surendra Pal Singh

2020-06-08

ANJANI KUMAR MISHRA

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JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri Kshitij Shailendra, learned Counsel for the revisionists and Shri Vijay. Prakash, learned Counsel for the contesting-opposite party No. 1. 2. The instant revision is directed against the order dated 29.5.2019 passed by the Additional Civil- Judge (Senior Division), Court No. 8, Ghaziabad, whereby an impleadment application filed by the revisionist being paper 22-C has been rejected. This application was filed in Original Suit No. 1172 of 2018 preferred by the opposite party No. 1 seeking a declaration in his favour on the basis of adverse possession over a plot of land situated in a Cooperative Housing Society, arraying the Nagar Nigam, Ghaziabad and M/s. Jagriti Co-operative Housing Society Limited, as defendants. 3. The revisionists who claim to be members of the Co-operative Housing Society and since it was their case that the society was not properly contesting the suit, filed an application for their impleadment claiming that the land in suit is, in fact, a park, wherein the residents of the cooperative society have an interest. 4. It is contended that the application for impleadment has been wrongly and illegally rejected on the ground that in the facts; and circumstances of the case, it was barred. by, res judicata. 5. Assailing the impugned order, the contention of learned Counsel for the revisionists is that the plea of res judicata is not applicable to an impleadment application. The provisions of Order I, Rule 8(6); C.P.C. have also been wrongly invoked by the Court below for rejecting the impleadment application. 6. Elaborating further, it has been stated that an earlier suit No. 755 of 1993 was filed in representative capacity by and on Behalf of the residents and members of M/s. Jagriti Cooperative Housing Society Limited. The notices were ordered to be issued to all interested persons as provided under Order I, Rule 8 (2), C.P.C. by publication. 7. It is vehemently contended that this requirement was not fulfilled, as is established from a perusal of the record of the said suit. No publication was in fact made, nor the Court recorded sufficiency of service. The decree, therefore, that was passed in the said suit was, void. 8. It is next contended that in any case, the parties in the suit were different from the applicants and, therefore, also the principles of res judicata could not have been invoked. 9. No publication was in fact made, nor the Court recorded sufficiency of service. The decree, therefore, that was passed in the said suit was, void. 8. It is next contended that in any case, the parties in the suit were different from the applicants and, therefore, also the principles of res judicata could not have been invoked. 9. As regards the instant suit, which is based on a plea of adverse possession, it has been submitted that adverse possession is a defence and not a plea of offence. 10. Counsel appearing for the caveator-opposite party has supported the impugned order and has placed reliance on case law that shall be referred to at appropriate places. 11. I have considered the submissions made by learned Counsel for the parties and perused the record. 12. From the submissions made and upon a perusal of the record, it transpires that the earlier a suit No. 755 of 1993 was filed in representative capacity. The plaintiffs in the suit of 1993 claimed to be purchasers of various plots from the co-operative society. The suit was one for injunction regarding a piece of land, alleging it to be a park and that none should interfere in its use, as such. 13. On behalf of plaintiffs Surendra Pal Singh, the plaintiff in the instant suit was examined as P.W. 1 in the suit of 1993 and both suits pertain to be same property. A categorical finding in this regard has been returned in the impugned order, and is not disputed. 14. In suit No. 755 of 1993, the property was alleged to be a park. The property, as per the plaint of the instant suit, is not a park and that the plaintiff as perfected rights over this land by adverse possession. Neither any park exists nor was proposed in the colony and that the plaintiff had entered into possession over the land in the knowledge of the builder. In the earlier suit of 1993, filed in the representative capacity, the land in dispute was claimed to be park but this plea was not accepted and the suit was dismissed. Neither any park exists nor was proposed in the colony and that the plaintiff had entered into possession over the land in the knowledge of the builder. In the earlier suit of 1993, filed in the representative capacity, the land in dispute was claimed to be park but this plea was not accepted and the suit was dismissed. The impleadment application was, therefore, opposed on the ground that since the plea of the land in question being a park had been repelled while dismissing the representative suit of 1993, the impleadment application could not be allowed, as this very same plea was being raised by the revisionist while seeking impleadment. 15. It is in the context of the facts and circumstances noted above, that the submissions have been made by learned Counsel for the parties as noticed above. 16. It is not in dispute that the earlier representative suit filed on behalf of the residents of Jagriti Vihar claiming the land in question to be a park has been dismissed and the judgment in decree has not been, subjected to any further challenge and has attained finality. It is this very judgment, which has been relied upon by the Court below for rejecting the impleadment application. The reasoning given by the Court below is that since the claim of residents of Jagriti Vihar that the land in question was a park had been repelled, their impleadment application filed on the same plea was not liable to be accepted. 17. In this regard, the contention of learned Counsel for the revisionists is that the plea of res judicata does not apply to an impleadment application. The other contention is that the decree is void ab-initio because although the legal requirement is that in a representative suit notices should be served upon all interested parties by publication, this was not done. 18. In my considered opinion, the contention that the decree in the earlier suit of 1993 is void ab-initio cannot be accepted. The Court which dismissed the suit definitely had jurisdiction to decide it. If the contention of learned Counsel for the revisionists that notice on interested parties as required by Order I, Rule 8 (2), C.P.C. had not been served, it would, at best, render the decree illegal. Non service of notice would not, render the decree void. The Court which dismissed the suit definitely had jurisdiction to decide it. If the contention of learned Counsel for the revisionists that notice on interested parties as required by Order I, Rule 8 (2), C.P.C. had not been served, it would, at best, render the decree illegal. Non service of notice would not, render the decree void. Therefore, if there was an illegality in the decree nothing prevented challenge to the same. Admittedly, the decree was never subjected to any challenge and it would therefore, necessarily operate as res-judicata as regards the plea of the residents of Jagriti Vihar that the land in suit is a park. 19. In my considered opinion, therefore, the impleadment application is nothing but an attempt to reagitate a plea, which was raised but negatived by a judgment which has attained finality. The decree in the suit of 1993 is, therefore, sought to be assailed in collateral proceedings, which is not permissible. Reference in this regard may be made to Rafiq Bibi v. Syed Waliuddeen, 2004 (1) SCC 287 . The contention of learned Counsel for the revisionists to the contrary therefore, cannot be accepted. 20. The only other plea which requires consideration is the plea that the suit is one based on a claim for adverse possession which cannot be taken as a plea of offence. Even this contention cannot be accepted because the Supreme Court has held, to the contrary in Ravinder Kaur Grewal and others v. Manjit Kaur and others in Civil Appeal No. 7764 of 2014, vide judgment dated 7.8.2019. This judgment specifically overrules two decisions of the Uttrakhand High Court in Gurudwara Sahab v. Gram Panchayat. 21. In view of the foregoing, and since the contentions of learned Counsel for. the revisionists have been repelled, the revision is without merit and is accordingly, dismissed.