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Judgment
Anil Kumar, J.
IA No. 14070/2006
This is an application by Ms. Jyoti Rattan daughter of late Shri Daljit Kumar; Mr. Ram Singh son of Shri Nathu; Mr. Karan Singh son of Mr. Nyadar Singh and Mr.Diwan Singh Rana son of Shri H.L. Rana to be impleaded as a party in the suit for declaration and possession filed by the plaintiffs.
The plaintiffs have sought a declaration that they are bhoomidars in possession of plot No. 415 within the Lal Dora of village Bijwasan, New Delhi, since 1976-77 duly declared by the Revenue Assistant, Shri K.R. Sarangal by his order dated 26th February, 1979. The plaintiff has also sought cancellation of the order dated 19th January, 2006 passed by Shri B.B. Saxena, Financial Commissioner, Delhi in Case No. 263/04-CA in respect of plot No. 415 in Gaon Sabha, Bijwasan on the ground that it is erroneous, void, non-est and without jurisdiction and that the plaintiffs have continued to enjoy the rights in the property as per the provisions of Delhi Land Reforms Act, 1954.
The applicants have contended that the proceedings for recording of their names in the Revenue Record in respect of Khasra No. 415/4 (4 bighas 2 biswas) is also pending and the applicants have filed a copy of registered karyewahi dated 6th February, 2006. According to the applicants, Shri Mir Singh son of Shri Ram Nath, was the owner of 122 bighas 7 biswas in khasra No. 415 of land situated in Village Bijwasan, New Delhi. He had sold 122 bighas and 7 biswas of land on 31st October, 1973 to Mohinder Singh and other plaintiffs. It is further alleged that Shri Mohinder Singh and others then sold the entire land holding of 122 bighas 7 biswas to various purchasers in Village Bijwasan, New Delhi, and consequently their entire khata 297 became Nil. According to the applicant, during the consolidation proceedings neither Shri Mir Singh son of Shri Ram Nath nor the transferees of Shri Mir Singh, Shri Mohinder Singh and other plaintiffs made any demand of allotment of plot as the land had already been sold out by them. Consequently, it is contended that by order dated 13th November, 1984 the Financial Commissioner in Case No. 7/84/CA withdrew the legal allotment of plot No. 415 in favour of plaintiffs.
According to the applicants against the order of 13th November, 1984 a writ petition being W.P. No. 2742/1984 was filed by the plaintiffs seeking quashing of order dated 13th November, 1984 which was disposed of by order dated 6th August, 2004. Pursuant to disposal of the writ petition of the plaintiff being Writ Petition No. 2742/1984, objections had been filed before the Financial Commissioner.
The Financial Commissioner by order dated 19th January, 2006 again rejected the objections of the plaintiff holding that the allotment of 6 bighas and 6 biswas of land in plot No. 415, Village Bijwasan, to the plaintiffs suffer from illegality.
The applicants have contended that thereafter the plaintiffs filed yet another writ petition being W.P.(C.) No. 168-84/2006 which was also dismissed by an order dated 8th February, 2006. An appeal has been filed by the plaintiffs against the order dated 8th February, 2006 which is pending adjudication where an interim order was passed that the plaintiffs shall not be dispossessed from the suit property unless they have already been dispossessed.
According to the applicants, pursuant to order dated 13th November, 1984 passed by the Financial Commissioner, the same plot measuring 6 bighas and 6 biswas in Khasra No. 415 vested in Gaon Sabha and out of the said land the plot measuring 4 bighas and 2 biswhas in Khasra No. 415/4 has been allotted in favour of Smt.Jyoti Sikka and Diwan Singh Rana and one bigha has been allotted in plot No. 415/1 in favour of Ram Singh and others. According to applicants though their application for the impleadment as a party in the writ petition No. 2742/1984 was dismissed by order dated 8th January, 2004, however, their another application for impleading them as a party in the subsequent writ petition filed by the petitioner being WPC No. 15070/2006 was allowed by order dated 9th July, 2008. The applicants have contended that they are necessary parties as their non- impleadment will result in multiplicity of proceedings and there will not be a finality to the reliefs claimed by the plaintiffs in respect of the same land which have been allotted to them which is in their possession and for which the karyewahi for the mutation is also pending.
The application is contested by the plaintiffs/non-applicants who have mainly contended that the applicants have no right, locus standi to file the present application for the impleadment because the plaintiffs are seeking declaration that they are bhoomidars and in possession of plot No. 415 since 1976-77 declared by Revenue Assistant, Shri K.R. Sarangal, by his order dated 26th February, 1979 and the subsequent order passed in 1984 is illegal and void.
The plaintiffs/non applicants have contended that the applicants were not parties in the proceedings before the Revenue Assistant and, therefore, they have no right to intervene in the present suit. The application for impleadment by the applicants is also opposed on the ground that it is barred by the principle of res judicata as the application of the applicants for impleadment in an earlier writ petition filed by the petitioners had been dismissed. According to the plaintiffs, the applicants had filed a similar application under Order I Rule 10 of the CPC for impleadment in CWP No. 2742/1984. The said application was dismissed by the Court by order dated 8th January, 2004. The plea of the plaintiff/non applicants is that no liberty was sought by the applicants nor any liberty was given to applicants to again agitate the same issue of impleadment on the same set of facts and grounds. It is asserted by non-applicants/plaintiffs that the plea of the applicants for impleadment had attained finality and, therefore, the applicants are barred in law from re-agitating and raising the same issue again. The application for impleadment is also opposed on the ground that no transfer in favor of applicants could have taken place in 2006 since the order of vesting of said khasra No. 415 had already been quashed by the order dated 6th August, 2004. It is also pleaded that pursuant to the order dated 6th August, 2004, the plaintiffs had approached the Financial Commissioner in terms of the directions of the court and the Financial Commissioner gave his decision which was also challenged in a writ petition before this Hon''ble Court.
According to the non-applicants/plaintiffs by order dated 6th August, 2004, the order of the Financial Commissioner dated 13th November, 1984 to the extent that it directed vesting of Plot No. 415 measuring 4 bighas and 6 biswas in gaon sabha has attained finality and, therefore, the land was not with gaon sabha in 2004 and same could not be transferred by gaon sabha to the applicants or any other person.
The application is also opposed on the ground that the applicants have no right over khasra No. 415 as the dispute of plaintiffs is with gaon sabha and the right of the applicants in the said land flow from the gaon sabha. Since there is no privity between the plaintiffs and the applicants, as has been alleged by the plaintiffs/non-applicants, they are not the necessary parties.
12 I have heard the learned Counsel for the parties in detail and have also perused the copy of the reply which was given in the court as the reply dated 27th January, 2009 which was filed on 28th January, 2009 by diary No. 16604 was not on record.
In order to ascertain whether the applicants are necessary parties or not, what is to be ascertained is whether non-impleadment of the applicants will lead to multiplicity of proceedings and/or conflicting orders being passed by this Court. No doubt that the plaintiffs are agitating their rights in respect of khasra No. 415 which has been allotted by the gaon sabha to the applicants. Nevertheless it cannot be disputed that the disputes are in respect of the same land being khasra No. 415. An application under Order I Rule 10 filed by the applicants in the writ petition, CWP No. 2742 of 1984, was dismissed on 8th January, 2004. The said writ petition was also disposed of by this Court by order dated 6th August, 2004. Pursuant to the disposal of the said writ petition, the Financial Commissioner reconsidered the matter and gave his decision which has been challenged by the plaintiffs in a writ petition being W.P.C. No. 15070 of 2006 titled Mohinder Singh and Ors. v. Tehsildar, Bijwasan and Anr. In the subsequent writ petition which is filed by the plaintiffs, an application was filed by the applicants, namely, Shri Jyoti Rattan, Shri Ram Singh, Shri Karan Singh and Shri Diwan Singh Rana being C.M. No. 9466 of 2007 which was allowed by order dated 9th July, 2008.
The Financial Commissioner by order dated 19th January, 2006 maintained his earlier order of withdrawal of allotment. The order passed by the Financial Commissioner has again been challenged by the plaintiffs in the High Court. However, their writ petition was dismissed on 8th February, 2006 and, therefore, plaintiffs have preferred a Letters Patent Appeal which is pending consideration before a Division Bench of this Court and dispossession of the plaintiffs has been stayed pursuant to order dated 14th March, 2006.
In the writ petition being W.P.(C.) No. 15070 of 2006, the relief sought was that the actual physical possession of the plaintiffs should be recorded by the Tehsildar, Bijwasan. Considering the nature of dispute and contesting claims of the plaintiffs and the applicants, the applicants were impleaded as respondents to the said writ petition. The order dated 9th July, 2008 passed in W.P.(C.) No. 15070 of 2006 is as under:
CM No. 9466/2007
By this application the applicants, namely, Shri Jyoti Rattan, Shri Ram Singh, Shri Karan Singh and Shri Diwan Singh Rana seek impleadment and right to intervene this petition. The case of the applicants is that land falling in Khasra No. 415 was initially wrongly allotted to the petitioners on 6.8.2004 and that allotment was subsequently withdrawn by the Financial Commissioner on 13.11.2004 After the same was withdrawn it was allotted to the applicants.
The petitioners were aggrieved by the withdrawal of the allotment and preferred a writ petition before this Court. That petition was allowed and the matter was remanded back for determination by the Financial Commissioner.
The Financial Commissioner passed a fresh order on 19.1.2006 maintaining his earlier order of withdrawal. This order was again carried to the High Court in writ petition which was dismissed on 8.2.2006. The petitioner preferred a latent patent appeal which is still pending consideration before a Division Bench of this Court. On 14.3.2006, the Division Bench has stayed dispossession of the petitioner. The result is that the petitioner as continued to remain in actual physical possession throughout and even now continues to be in possession under the orders of the Court.
The relief sought in the writ petition is that the actual physical possession of the petitioners should be recorded by respondent No. 1 in the revenue records. Considering the nature of dispute and the contesting claims of the petitioners on the one hand and the applicants on the other hand, in my view the applicants deserve to be impleaded as respondents so that they could also be heard at the time of disposal of this petition. Accordingly the application is allowed. The applicants are impleaded as party respondent.
The petitioners are directed to file amended writ petition along with the amended memo of parties within four weeks.
WP(C) No. 15070/2006
Learned Counsel for the petitioner relies on 2000(6) JT 643.
Rule.
Notice of Rule is accepted by Ms. Ansuya Salwan and Mr.Mahidner Singh Rana for the respondents. Let counter affidavit be filed within four weeks. Rejoinder, if any, be filed within four weeks thereafter.
Considering the fact that only a narrow issue arises for consideration the matter be listed for final disposal in first ten matters in that category of Regular Matters.
The plaintiffs have filed the present suit seeking a declaration that they are the bhoomidars in possession of plot No. 415 within the lal dora of Village Bijwasan, New Delhi, since 19769-77. Though the writ petition filed by the petitioner against the order of the Financial Commissioner, dated 19th January, 2006, maintaining his earlier order of withdrawal of allotment in favor of petitioners was dismissed on 8th February, 2006, however, the petitioner thereafter has filed the present suit on 20th April, 2006. The legality of the order dated 19th January, 2006 is now pending adjudication before a Division Bench in a Letters Patent Appeal filed by the plaintiffs against the dismissal of their writ petition by order dated 8th February, 2006 and the order of Financial Commissioner dated 19th January, 2006 is also challenged by the plaintiffs in the present suit.
The plaintiffs are dominus litis and they are bound to sue every possible adverse claimant, in the same suit, whom they wish to proceed against under Order 1 Rule 3, to avoid multiplicity of legal proceedings and needless expenses. All persons against whom the right to relief is alleged to exist should be joined as defendants. However, Rule 10 also specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The Court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. In order to ascertain whether a person is a necessary party or not what is to be seen is whether in the absence of such a person, there is a possibility of conflicting decrees being passed by the Court. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled. The question to be settled must be a question in the action which cannot be effectually and completely settled unless he is a party. A 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 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.
In the subsequent writ petition, W.P.(C.) No. 15070 of 2006, the applicants were impleaded as parties by order dated 9th July, 2008. In the circumstances, the plea of the plaintiffs/non-applicants that the application by the applicants is barred by res judicata is not sustainable and on that ground it cannot be disallowed. Though the dispute of the plaintiffs is with Gaon Sabha but the land which is the subject matter of the dispute had also been allotted to the applicants. In the circumstances, it cannot be inferred that the applicants have no such interest which will be affected by the adjudication of the claim of the plaintiffs in the suit. If the applicants are impleaded as party they will be bound by the decision in the suit for the same land for which the plaintiffs and applicants are claiming rights.
The learned Counsel for the applicants have also relied on Razia Begum v. Sahebzadi Anwar Begum and Ors. AIR 1985 SC 886 ; Repaka Bhyravamurthy and another Vs. Muppidi Venkataraju and others, ; Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, and Dhanalakshmi and Others Vs. P. Mohan and Others, , to contend that the applicants are necessary parties and they entitled to be impleaded as parties to the present suit.
In Razia Begum (supra), the Supreme Court had held that the question of addition of parties under Rule 10 of Order I has to be decided in view of facts and circumstances of a particular case. It was held that in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinct from commercial interest in the subject matter of litigation. It was, however, clarified that where the subject matter of a litigation is a declaration as regards status or legal character, the Rule of present or direct interest may be relaxed in suitable cases where the court is of the opinion that by addition of that party, it would be in a better position to effectively and completely adjudicate upon the controversy. In Repaka Bhyravamurthy (supra), the Full Bench was dealing with a case of enhancement of compensation. It was held that in a reference u/s 30 not only the question of title but also the status of the parties is involved and Order I Rule 10 confers a wide power upon the court to implead a party whose interests are involved in any manner. The Full Bench had held that a person may not be entitled to be impleaded as a party only for the purpose of enhancement of compensation, but if any other question arises which touches the issues of his entitlement or apportionment to the amount of compensation, the same may be considered by raising of an application under Order I Rule 10 of the Code of Civil Procedure.
The Supreme Court in the case of Amit Kumar Shaw (supra), held that a transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation. It was observed whether the transfer is of the entire interest of the defendant, the latter having no more interest in the property may not properly defend the suit or he may collude with the plaintiffs. In these circumstances, the Supreme Court had held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he had acquired that interest and he is entitled to be impleaded as party in any suit where transferee pendente lite is made a party. It was held that even such a transferee is entitled to be heard in the matter on the merits of the case. Similarly in Dhanlakshmi and Ors. (supra), it was held by the Supreme Court that transferees-in-interest of other co-owners acquiring interest during pendency of a partition suit filed by a co-owner are necessary parties. In the present case, the applicants have already been impleaded as a party to a writ petition which was filed against the order of the Financial Commissioner dated 19th January, 2006. The applicants are claiming rights in the same khasra No. 415 in which the plaintiffs are claiming their rights and are seeking a declaration that they are in possession since 1976-77. The plaintiffs are also challenging the order dated 19th January, 2006 passed by the Financial Commissioner upholding its earlier order whereby the land was withdrawn from the plaintiffs. The same land has been allotted to the applicants and the karyewahi in respect of the said land in favor of the applicants is pending. In case the applicants are not impleaded as parties to the present suit, the findings and decision which may be given in the suit may not be binding upon the applicants. Though the rights in favor of plaintiffs flow through gaon sabha, nevertheless, it cannot be inferred that the applicants do not have any rights. The claim of applicants will not attain finality unless they are impleaded as parties to the suit.
In the present case, the plea of the plaintiffs/non-applicants that it is the gaon sabha which is a necessary party and it should only be gaon sabha which should remain as a party as far as challenging the order dated 19th January, 2006 of the Financial Commissioner is concerned cannot be sustained. Since the rights have been transferred by the gaon sabha in favor of the applicants in the immovable property they would be in a better position to contest the rights claimed by the plaintiffs and it cannot be held that the applicants are not the necessary parties and they should not be impleaded.
In the circumstances, non-impleading the applicants will cause multiplicity of proceedings and may also lead to the conflicting orders and therefore on the ratio of the decision referred hereinabove, the applicants are necessary parties and are entitled to be impleaded.
In the totality of facts and circumstances and for the foregoing reasons, the application is allowed and the applicants are impleaded as parties to the present suit as defendants No. 3, 4, 5 and 6.
CS(OS) No. 677/2006
Amended memo of parties be filed within four weeks.
A complete set of paper book be given to the counsel for defendant Nos. 3 to 6 who have been impleaded as parties today.
Written statement, if any, be filed by the newly added defendants within four week. The learned Counsel for the plaintiff also seeks time to file replication to the written statement of defendants No. 1 & 2. Replication be filed within four weeks.
List before the Joint Registrar for completing the pleadings on 22nd April, 2009.