Maru vs Ratti Ram

G.C. Mittal, J. (Oral)

Agricultural land measuring 287 Kanals and 12 Marlas was allotted to Maru defendant by the Sub Divisional Officer (Civil), Sirsa, exercising the powers of the Prescribed Authority under the Haryana Utilization of Surplus and Other Areas Scheme, 1976, vide order dated 17.10.1978, copy of which is Exhibit P.1. The land originally belonged to Ram Rikh along with certain other land ownes. Before 27.8.1957, Ram Rikh owned 643 Bighas and 4 Biswas of land. On 27.8.1957, it is alleged that he suffered a decree whereby he was left with 1/7th share therein and the remaining 6/7th share passed on to his wife and sons. Two sons, wife and a daughterinlaw of Ram Rikh filed the present suit in the year 1979 to challenge the order of the Prescribed Authority dated 17.10.1978, as being illegal and without jurisdiction and impleaded Maru as the sole defendant. Maru contested the suit and raised one of the pleas that the Prescribed Authority was a necessary party. On this, issue No.5 was framed as follows:

"5. Whether the suit is bad for nonjoinder of the necessary parties?" The trial Court decided this issue in favour of the defendant and against the plaintiffs. However, the suit was dismissed by the trial Court on merits. On plaintiffs'' appeal, the decision of the trial Court was reversed on merits as also on issue No. 5. On issue No.5, the sole discussion was that no relief was being claimed against the State and, therefore, the State was not a necessary party. This is second appeal by the defendant.

After hearing the learned counsel for the parties on issue No.5, I am of the considered view that although in the suit no relief has been claimed against the State, but the suit cannot proceed in the absence of the State because the primary relief, which has been claimed in the suit, is that the order passed by the Prescribed Authority dated 17.10.1978, is illegal, null and void. Since this order has been passed by the Prescribed Authority on behalf of the State, the State was a necessary party and unless the State has the opportunity to defend that order, that order cannot be set aside. Shri Ram Rang, Advocate, appearing for the plaintiffs, could not show that if the order dated 17.10.1978 is not disturbed or set aside, any relief can be granted to his clients. In fact his stand is that the whole grievance of his client is against the order dated 17.10.1978. Hence the State was a necessary party and the suit could not proceed in its absence. Accordingly, the decision of the lower Appellate Court on issue No. 5 is set aside and that of the trial Court is restored.

Since the merits of the case will have to be gone into in the presence of the State, the findings recorded on all the other issues are not being discussed. I am further of the view that no useful purpose will be served by impleading the State here and by calling a report under Order 41 Rule 25 of the Code of Civil Procedure because I am of the view that there will have to be a de novo trial in the presence of the State. Therefore, the findings recorded on merits by both the Courts below are also set aside and the matter is remitted to the trial Court to give an opportunity to the State and the Prescribed Authority to be impleaded as defendants and in case they are impleaded, the case may be proceeded further in accordance with law.

For the reasons recorded above, this appeal is allowed, the judgments and decrees of the two Courts below are set aside and the case is remitted to the trial Court to permit the plaintiffs to implead the State and the Prescribed Authority as defendants, and to decide the case afresh in accordance with law. The parties, through their counsel, are directed to appear before the trial Court on 6.2.1984. However, there will be no order as to costs.