Indrajit Kumar Yadav vs Rima Shree, wife of Late Ramraj Sharma

Gautam Kumar Choudhary, J

Petitioners are the defendants in Original Suit No.91 of 2013 which was filed for declaration of right, title and interest and with a prayer for cancellation of unregistered deed of sale dated 15.05.1932 and the registered Sale Deed No.5923 and 5924 dated 18.12.2007.

The suit of the plaintiffs was decreed and the petitioners/ defendants preferred Civil Appeal No.41 of 2022 against the judgement and decree.

During pendency of the appeal, petitioners filed application under Order I Rule 10 of the CPC on 03.10.2023 before the first appellate Court to implead Union of India through Deputy Commissioner as a party, as the suit land had been mentioned as Kaiser-e-Hind in the Khatiyan as Government land. The said petition was rejected by the impugned order against which the instant civil miscellaneous petition has been filed.

Learned first appellate Court rejected the application to implead Union of India as a party on the ground that the said plea was not taken at the trial stage and there was no finding that the land in question was Kaiser-e-Hind.

It is argued by the learned counsel on behalf of petitioners that the order impugned has been passed without hearing the petitioners. It is submitted that the learned first appellate Court in the impugned order has noted that the revenue receipts were in the name of Kaiser-e-Hind and despite this, the petition to implead Union of India as a party, has been turned down. Further, during the pendency of the appeal, learned first appellate Court accepted the finding of the trial Court, that it was a Raiyati land of the plaintiff and not a Government land. It is further argued that on the petition for impleading Union of India as a party at the stage of hearing in a petition under Order XLI Rule 5 of the CPC an observation was made in the order dated 22.08.2023 by the learned District Judge, that as the appellant had pleaded to make Deputy Commissioner, Sahibganj party in the case, he should take appropriate steps for the same as per law.

Learned counsel on behalf of plaintiffs/opposite parties defends the impugned order.

Having heard both sides, it is apparent that petitioners/defendants contested the Title Suit claiming the suit property his own Raiyati property. Having lost the suit, at the appellate stage, a new plea was first of all taken in a petition filed to stay the execution proceeding under Order XLI Rule 5 of the CPC for the first time that the said land was that of Union of India. Thereafter, a petition under Order I Rule 10 was filed to implead Union of India through Deputy Commissioner, which has been rejected by the detailed order passed by the learned first appellate Court.

It has been rightly noted by the first appellate Court that no such plea was taken in the written statement at the trial Court by the petitioners/defendants and for the first time, it was set-up at the appellate Court. In this view of matter, I do not find any infirmity in the impugned order to exercise extraordinary writ jurisdiction under Article 227 of the Constitution of India.

Civil Miscellaneous Petition accordingly, stands dismissed. Pending Interlocutory Application, if any, is disposed of.