Noor Pasha vs Seenamma and Smt. Geethalakshmamma Sastri

S. Abdul Nazeer

In this case, the petitioner has assailed the order on I.A. No. 5 dated 21.10.2010 in 0.S. No. 68/2008 on the file of the Civil Judge (Sr. Dn.) and JMFC, Chintamani, whereby the application filed by the petitioner to implead himself as an additional defendant has been rejected. The 1st respondent is the plaintiff in the above suit and the 2nd respondent is the defendant. The suit filed by the plaintiff is for declaration that she is the absolute owner and in lawful possession and enjoyment of the suit schedule property and for injunction restraining the defendant, her men and any person claiming under her from interfering with her lawful possession and enjoyment of the said property. In the suit, the defendant (2nd respondent) has filed the written statement contending that she has not executed any sale deed in respect of the schedule property in favor of the plaintiff. The petitioner filed I.A.1 (Annexure-B) under Order 1 Rule 10 of CPC to come on record as an additional defendant in the suit. In the affidavit filed in support of the application, he has deposed that late Kashinath Shastri, the husband of the defendant was the owner of the suit schedule property. On 2.5.1953, his father has taken the; and on lease under a registered crop lease agreement with a condition that his father has to cultivate the land. He was in possession of the suit schedule property for a period of ten years on yearly ground lease for Rs. 23/-. He was cultivating the said land. After his death, the petitioner has been in lawful possession and enjoyment of the said property. His application seeking grant of occupancy right has been rejected by the Land Tribunal and the writ petition challenging the said order has also been dismissed by this Court in W.P. No. 36760/1997.

Learnd counsel for the petitioner contends that the application filed by the petitioner for grant of occupancy right was allowed by the Land Tribunal at the first instance. The said order was set aside by this Court with a direction to the Land Tribunal to consider the same in accordance with law. Thereafter, his application was dismissed on the ground of delay. The writ petition was also dismissed on the ground of delay and laces. It does not mean that the petitioner herein is not in possession of the property since the possession of the property has not been taken over by the respondents herein in a process known to law. The petitioner has to highlight all these aspects in the suit. The respondents, under the guise of the decree which may be passed by the Court below, may take possession of the property from the petitioner illegally. That is why the petitioner is necessary party to the proceedings.

On the other hand, Learned Counsel for the 1st respondent submits that the petitioner is neither necessary nor a proper party to the suit. It is argued that she has purchased the suit schedule property under a registered sale deed from the 2nd respondent. She was also put in possession of the said property by the 2nd respondent, The petitioner is not a necessary or a proper party to the suit.

I have carefully considered the arguments of the Learned Counsel for the parties made at the Bar and perused the materials placed on record.

It is the case of the petitioner that his father was a tenant in respect of the suit schedule property. He was put in possession of the said property under a registered crop lease deed. The materials on record would clearly indicate that the RTC of the land stood In the name of the petitioner till the date of rejection of the writ petition referred to above. It is the case of the petitioner that he has been in possession of the suit schedule property despite dismissal of his application seeking grant of occupancy right and also dismissal of the aforesaid writ petition. I am of the view that the petitioner is a necessary and proper party to the suit in question. The Court below is not justified in rejecting the application merely because the writ petition filed by the petitioner challenging the order of the Land Tribunal has been dismissed by this Court. In the result, the writ petition succeeds and it is accordingly allowed. The order dated 21.10.2010 passed on I.A. No. 5 in O.S. No. 68/2008 on the file of the Civil Judge (Sr. Dn.) and JMFC, Chintamani is hereby quashed. I.A. No. 5 is allowed. The 1st respondent-plaintiff is directed to implead the petitioner herein as defendant No. 2 in the suit. The Court below is directed to dispose o the suit in accordance with law. No costs.