Chongtham Ongbi Kalpalata Devi, & Ors. vs Dr. Ningthoujam Birachandra Singh, & Ors.

Since both the applications do arise out of the common order dated 30.11.2015 passed in J.M. Case No. 192 of 2015 and J.M. Case No. 193 of 2015 (arising out of OS No. 5 of 2015) whereby and whereunder prayer of the petitioners/applicants for impleadment as party defendants was rejected, both were heard together and are being disposed of by the common order.

From the pleadings of the parties, the facts giving rise to these applications are that one late B. Ibungochaoba Sharma was the original owner/Pattadar of the homestead land appertaining to patta No. 353 (old) situated in the village No. 38, Wangkhei Paschim Brahmapur. The said B. Ibungochaoba Sharma (grandfather of the applicants/petitioners and also of the proforma respondents No. 2, 3 & 4) sold a piece of land measuring 0.1967 acre vide registered sale deed to one Ningthoujam Gopal Singh (deceased), but in the record of rights, it was recorded as 0.21 acre which was excess by 0.0133 acre. Said B. Ibungochouba Sharma died in August, 1973 leaving behind his son B. Nimai Sharma (father of the proforma respondents No. 2, 3 & 4 and the applicants/petitioners) who inherited the homestead land recorded in the name of his father. Later on, the said land was recorded in the name of said Nimai Sharma, who during his lifetime, sold two different portions of land measuring 0.0086 acre and 0.0422 acre in the year 1974. Subsequently, said Nimai Sharma sold a portion of land measuring 0.1062 acre (77 ft x 60 ft) out of the remaining homestead land to N. Birchandra Singh (principal respondent), vide registered sale deed in the year 1982. By the said sale deed the vendor permitted the purchaser to use the land measuring 3 feet in width touching the southern boundary of his land as path. Said Nimai Sharma died on 13.06.1998 leaving behind his widow, 3 sons (proforma respondents No. 2, 3 & 4) and 6 daughters (petitioners/applicants) as Class-I heirs. After the death of the widow of said Nimai Sharma, the homestead land measuring about 0.3563 acres devolved upon the petitioners and proforma respondents No. 2, 3 & 4 in equal shares. On 13.06.2015, the petitioners/applicants approached to proforma respondents No. 2, 3 & 4 and expressed their desires to have partition of the said homestead land among the co-sharers. Upon it, the proforma respondents No. 2, 3 & 4 conveyed the petitioners that it is not possible to do so as 2 (two) cases, one brought by them against the respondent Birchandra Singh and other case filed by Birachandra Singh against the proforma respondents are pending before the Civil Court. It was also disclosed by the proforma respondents that they have brought a suit against Birachandra Singh (principal respondent) and his brothers and sister for evicting them from the portion of the homestead land whereas said N. Birachandra Singh (principal respondent) has filed a suit being Original (Injunction) Suit No. 5 of 2015 for permanent injunction against the proforma respondents claiming approach road as common pathway.

The case which has been made out by the said Birchandra Singh (plaintiff/respondent) is that on 26.11.1982, he had purchased a piece of land (77ft x 60 ft) appertaining to patta No. 38(old)/353/241 of Dag No. 304 from Nimai Sharma (father of the defendants-proforma respondents) under a registered sale deed. However, Nimai Sharma (father of the defendants) permitted him to use common passage (172 ft x 6 ft) for egress and ingress. Since then, the plaintiffs were enjoying the right of the way openly and peacefully without any interruption and interference from the defendants. Subsequently, on 14.10.2004, it was agreed upon between the plaintiff and the defendants to legalise the said transaction made orally so that there may not be any problem in future. Therefore, they submitted an application before the SDC, Settlement Office, upon which a case was registered as Revenue Misc. Case No. 24/AS&/SO/Imp-III which was disposed of by allowing the joint prayer for issuance of separate patta for the said piece of land measuring 172 ft x 6 ft.. Accordingly, on the basis of the said order, a separate Jamabandi was created under patta no. 353/291(A)(New) under dag No. 304(A) measuring an area of .0237 acre (172ft x6ft). Suddenly, the plaintiff (respondent) received a summon on 12.03.2014, issued in connection with O.S. No. 13 of 2014, brought against him and others for evicting them from the said piece of land which was recorded in the name of the plaintiff pursuant to order passed by SDC, and also for grant of permanent injunction, restraining the plaintiff from using the said common approach road measuring .0237 acres.

Upon filing of the said suit, proforma respondents started disturbing the plaintiff (respondent) and his family members from using the said common passage which gave rise the cause of action to the plaintiff (respondent) for bringing a suit for permanent injunction for restraining the defendant(respondent) from disturbing, interfering of the peaceful use and enjoyment and possession over the said common passage.

The plaintiff (respondent) also filed a case for grant of temporary injunction which was registered as Judicial Misc. (Temporary Injunction) Case No. 25 of 2015.

The petitioners, the daughters of said Nimai Sharma on coming to know about the filing of said two suits, O.S. No. 5 of 2015 and also Judicial Misc. Case (Temporary Injunction) No. 25 of 2015, filed applications under Order 1 Rule 10 of the CPC in both the cases for impleading them as party defendants by giving out the fact as has been stated above and also by taking a plea that order passed by AS and SO is not binding on them as it was passed behind their back and without their consent on the basis of the agreement entered into in between the plaintiff of O.S. No. 5 of2015 and the proforma respondents, which is illegal as the proforma respondents, who are their brothers do not have any right to transfer the land or dispose of it in any manner as the property was undivided over which the petitioners do have right title and interest. Similar application was also filed in case of Temporary injunction bearing Judicial Misc. Case (Temporary Injunction) No. 25 of 2015.

The plaintiff objected the prayer of the applicants/ petitioners on the plea that the applicants/petitioners are never the necessary or proper party as the plaintiff has not sought for any relief against them.

Both the cases were heard together by Civil Judge, Senior Division, Imphal East, who vide his order dated 30.11.2015, rejected the prayer of the applicants/petitioners on the ground that the plaintiff has never brought a suit for declaration of right, title and interest over the suit land (passage) meant for egress and ingress rather the plaintiff has filed a suit for permanent injunction against the defendants and not against the applicants/petitioners restraining them from interfering with the joint peaceful possession and of its use and enjoyment and thereby, the applicants/petitioners never happen to be the necessary or proper parties.

Being aggrieved with the said order, these 2 (two) applications have been filed. Here also, the same plea was taken on behalf of the applicants/petitioners that the petitioners being heirs and legal representatives of the deceased Nimai Sharma, acquired rights, title and interest over the land including the passage, which is in dispute, in equal share and thereby, the proforma respondents who are their brothers do not have exclusive right to dispose of the land in any manner by assigning the land for use of plaintiff and thereby, the applicants/petitioners happen to be the necessary parties to be impleaded in the suit. But the trial Court rejected the prayer without appreciating the fact that the applicants/petitioners do have similar right of interest which right proforma respondents used to have and thereby, the learned Civil Judge committed illegality in rejecting the prayer of the applicants/petitioners, and hence the impugned order is fit to be set aside.

The prayer made on behalf of the applicants/petitioners was objected to by taking a plea that since the suit never happens to be a suit for declaration of right, title or interest, the interest of the applicants/petitioners is never going to be affected and thereby the Court has rightly found the applicants/petitioners being not necessary or proper party.

Admittedly, no one has denied the rights, title and interest of the applicants/petitioners over the land, which is a common passage given by the proforma respondents with the consent of the petitioners to be used by the plaintiff. In spite of that prayer has been rejected on account of the reason that right of the applicants/petitioners is not going to be affected as the suit has never been brought for declaration of rights, title and interest of the plaintiff. The said approach of the learned Civil Judge cannot be said to be correct or legal. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled and 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. This proposition has been laid down by the Hon''ble Supreme Court in a case of Ramesh Hira Chand Kundan Mittal Mal v. Municipal Corpn of Greater Bombay (1992) 2 SCC 524 .

In view of law laid down of the Hon''ble Supreme Court in a case referred to above, the applicants/petitioners can certainly be held to be necessary party as their rights in the property in question would certainly be affected if the suit for permanent injunction or temporary injunction is decreed in favour of the plaintiff. But this aspect of the matter was never considered by Learned Civil Judge, and thereby, the impugned order dated 30.11.2015, is hereby set aside. Consequently, the applicants/petitioners are directed to be impleaded as party defendants in both the suits relating to the permanent injunction and also to the temporary injunction. Thus both the applications stand allowed.

Let the LCR be returned back immediately.