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2023 DIGILAW 1009 (PAT)

Ram Kali Devi v. Gopal Tiwari

2023-09-05

SANDEEP KUMAR

body2023
ORDER Learned counsel for the petitioners prays for and permission is granted to make necessary corrections in the prayer portion of the petition. 2. Heard learned counsel for the petitioners. 3. None appears for the respondents 1st Set/Intervenors despite vakalatnama having been filed on behalf of respondents 1st Set/Intervenors. 4. This application has been filed for quashing of order dated 13.03.2018 passed by learned Sub-Judge-III, Dalsingsarai, Samastipur by which learned Judge allowed the application of intervenor/respondents 1st Set for being added as a party in Title Suit No. 97 of 2014 under Order 1 Rule 10(2) C.P.C. 5. Learned counsel for the respondents 1st Set/Intervenors who had filed vakalatnama submits that the respondents 1st Set/Intervenors have taken the file and no objection from him. 6. It has been submitted by learned counsel for the petitioners that plaintiffs/petitioners have filed a Title Suit No.97 of 2014 for grant the decree of declaration of right, title and interest over the schedule-II lands of the plaint by declaring the sale deed executed by the defendant 3rd party in favour of defendant 1st party illegal and Revisional Survey Khatiyan no. 6,42,46,54 and 80 has wrongly been prepared in name of defendants and the same is illegal and not binding upon the plaintiffs. He has further prayed for grant the decree for recovery of possession over schedule III to schedule VI lands of the plaint in favour of the plaintiffs and against the defendants 1st party, 3rd, 4th and 5th party. 7. The case of the plaintiffs/petitioners is that the plaintiffs belong to the Hindu Mitakshara family along with the defendants. The lands as detailed in schedule 2 of the plaint are ancestral khatiyani land of ancestors of the plaintiffs who were the recorded tenants of cad-astral survey record of right in respect of schedule 2 of the plaint. The plaintiffs and their ancestors are in peaceful possession of schedule 2 lands of the plaint and the ancestors of the plaintiffs are paying rents also. The cause of action for filing the suit arose several times when defendants started making illegal claim over suit lands by illegally and forcibly dispossessing the plaintiffs from the suit lands and selling the suit property. The defendants have filed written statements and they have stated that the said suit is not maintainable as the plaintiffs have got no cause of action. The defendants have filed written statements and they have stated that the said suit is not maintainable as the plaintiffs have got no cause of action. The suit is barred by limitation, waiver, estoppel and acquiescence and is also bad for adding necessary parties. The suit is barred by provision of Specific Relief Act and Bihar Tenancy Act and the plaintiffs have not paid proper court fees. The defendants do not admit any of the allegations mentioned in the plaint except those that are specifically admitted in their written statements. The defendant's case is that the plaintiffs are not paying any kind of rent to the State and the plaintiffs have no concern with the said suit. 8. Learned counsel for the petitioners submits that defendants/respondents 2nd set filed an application on under Order 1 Rule, 10(2) of CPC in Title Suit No.97 of 2014 in the court of Sub Judge -1st, Dalsingsarai for addition of the party as intervenors/defendants to prove the full facts in the suit. They have submitted that the lands under the suit is the ancestral property of the petitioners and the intervenors inherited the property left by co-sharers landlord, namely, Balmukund Tiwari and Rambhujan Tiwari through inheritance and survivorship. The intervenors are bonafide title holders and their presence is absolutely necessary for settling all the questions involved in the suit. The plaintiffs/petitioners filed a rejoinder to the application dated 10.11.2014 in Title Suit No.97 of 2014 and submitted that the application is not maintainable either on facts or law. It has been filed with mala fide intention in collusion with defendants, through intervenors are claiming independent right of properties to the suit. The intervenors have no cause of action to file such application as they have no interest nor possession in the said suit property. It has been filed just to prolong the proceeding of the suit and it is barred by law of limitation, waiver, estoppel and acquiescence. The defendants 1st party and 3rd party have also filed rejoinder and submitted that the petition is not maintainable in eyes of law and is fit to be rejected in the facts of the case and the intervenors have no right to be impleaded. The defendants 1st party and 3rd party have also filed rejoinder and submitted that the petition is not maintainable in eyes of law and is fit to be rejected in the facts of the case and the intervenors have no right to be impleaded. The plaintiffs have not claimed reliefs against the intervenors and hence, the intervenors cannot be added as party in the suit but learned Sub-Judge allowed the application of intervenor vide order dated 13.03.18 in Title Suit No 97 of 2014 holding that they have interest in suit property and it is necessary for intervenors to be made party to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the Suit. 9. Learned counsel for the petitioner has challenged the impugned order on the following grounds: – “(I) The impugned order is bad in law as well on facts inasmuch as the party sought to be impleaded in the Title Suit is neither a necessary party nor proper party as he has his own independent case dehors the claim of either plaintiffs or existing defendants and he is not seeking impleadment for deciding the questions involved in the suit. (II) The intervenors have got no cause of action and right to file such petition in this suit. They should be refused the impleadment for want of locus. (III) The C.S.P. No 450 has been continuously remained in the peaceful possession of the plaintiffs and their ancestors since before the cad-astral survey operation which would be clearly evident from cadastral survey khatiyan. (IV) The Title Suit no 304 of 1944 is false, baseless and not binding upon the plaintiff's because the plaintiffs and their ancestors have not been impleaded in the said Title Suit as party and as such order and judgment of said title suit is not binding on them. (V) The intervenors have no right, title and interest to the C.S.P No 450 rather the intervenors illegally and collusively have filed such petition with a view to get illegal gains only. (VI) The intervenors have filed the petition just to delay the proceedings of the suit so that the parties to the Suit face rigamorale of a civil trial. (V) The intervenors have no right, title and interest to the C.S.P No 450 rather the intervenors illegally and collusively have filed such petition with a view to get illegal gains only. (VI) The intervenors have filed the petition just to delay the proceedings of the suit so that the parties to the Suit face rigamorale of a civil trial. (VII) The plaintiffs have not claimed any relief against the intervenors hence the intervenors cannot be a party in the present suit wherein the plaintiffs is a doming litis and the intervenors are also not entitled to seek any relief as prayed in the petition in question as per the settled law. (VIII) The presence of the intervenors is not necessary nor proper in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit between the existing parties to the suit and impleadment cannot be allowed to decide third party rights and the findings of court below that their impleadment is necessary of complete and final adjudication of dispute is perverse as they are claiming independent right and their remedy, if any, is an independent suit. (IX) The court below erred in allowing the petition of the intervenors as they are neither proper party nor necessary party. Interest of justice cannot supplant the settled law and statutory requirements. (X) From perusal of the petition dated 10.11.2014, it is crystal clear from the facts stated therein taken on it's face value in that case as a consequence of impleadment of the intervenor/ defendant as a party to suit would require a de-novo trial and finding to contrary is perverse. So if the intervenors/defendants want to establish his right, he is at liberty to file a fresh suit on different cause of action. (XI) It has been settled by the Hon’ble Apex Court in catena of decisions that the plaintiffs being master of his own litigation have every authority to choose his opponent and they cannot be fastened with liability of any undesirable person as his opponent.” 10. (XI) It has been settled by the Hon’ble Apex Court in catena of decisions that the plaintiffs being master of his own litigation have every authority to choose his opponent and they cannot be fastened with liability of any undesirable person as his opponent.” 10. Learned counsel for the petitioners has relied upon the judgments of Hon’ble Supreme Court in case of Kasturi vs. Iyyamperumal and Others reported in 2005 6 SCC 733 and Sudhamayee Pattnaik and Others vs. Bibhu Prasad Sahoo and Others reported in AIR OnLine 2022 SC 120 and this Court in case of Uma Shankar Prasad & Ors. vs. The State of Bihar through the Collector & Ors. in CWJC NO. 8460 of 2014. 11. I have heard the submissions of the parties. 12. The contention of the petitioners for challenging the impugned order is that the intervenors could not be added as party as they are stranger to the dispute and their presence is not required to decided the dispute between the parties. 13. The Hon’ble Supreme Court in case of Kasturi vs. Iyyamperumal and Others reported in 2005 6 SCC 733 has held as under: – “15. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. As noted here-in-earlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed. Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap vs. Sambhu Saran Sinha this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit. obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.” 14. The Hon’ble Supreme Court in case of Sudhamayee Pattnaik and Others vs. Bibhu Prasad Sahoo and Others reported in AIR OnLine 2022 SC 120 as held as under: – “ 5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that the defendants in the suit filed application under Order 1 Rule 10 CPC and prayed to implead the subsequent purchasers as party defendants. The suit is for declaration, permanent injunction and recovery of possession. As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs. 15. This Court in case of Uma Shankar Prasad & Ors. vs. The State of Bihar through the Collector & Ors. in CWJC NO. 8460 of 2014 as held as under: – “6. Therefore, subsequent purchasers could not have been impleaded as party defendants in the application submitted by the original defendants, that too against the wish of the plaintiffs. 15. This Court in case of Uma Shankar Prasad & Ors. vs. The State of Bihar through the Collector & Ors. in CWJC NO. 8460 of 2014 as held as under: – “6. After considering the submissions and the materials on record, it is not in dispute that the plaintiffs have filed the suit for declaration of their title over the suit property as mentioned in the schedule of the plaint. The plaintiffs have also mentioned that the cause of action for the suit has arisen only after receiving a notice by the defendants alleging encroachment by the plaintiffs over the suit land. From the impugned order as well as from the submission made on behalf of the petitioners, it is transparent that the petitioners have come out with the case of their own independent title over the suit land and have denied the title of the plaintiffs as well as the defendants. It is also manifest that the reliefs sought for by the plaintiffs in the suit are no way detrimental to the right, title and interest of the petitioners which they might have got over the suit land as the decree to be passed in the suit land as the decree to be passed in the suit would not be binding upon the petitioners. The decision in the case of Razla Begum (supra), relied upon on behalf of the petitioners has been taken into notice by the Apex Court in the case of Ramesh Hiranand Kundanmal vs. The Municipal Corporation of Greater Bombay, 1992(2) Judgment Today SC 116 and it has been laid down that the person seeking to be added as party in a suit must be the person who would be bound by the result of the suit which may legally affect him by curtailing his legal rights over the suit property. It would be profitable here to take into notice the observations of their lordships as follows: – “…...The only reason which makes it necessary to make a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action…….” 16. From the judgments cited above, it is clear that the plaintiffs are the dominance lities and it is for the plaintiffs to choose their defendants, in view of the relief claimed and a third party who comes with an independent claim cannot be allowed to intervene in a suit for decision of his independent claim which can be decided in a separate suit. The intervenors have come out with a case on a part of the land and have relied on the title of the plaintiffs as well as defendants. The relief sought for by the plaintiffs against the defendants will not in any way affect the right, title and interest of the intervenors which can again be the subject matter of a separate suit. 17. In these circumstances, the impugned order 13.03.2018 passed by learned Sub-Judge cannot be sustained. The impugned order dated 13.03.2018 passed by learned Sub-Judge-III, Dalsingsarai, Samastipur is hereby quashed.