Goutam Bhakat vs Asim Kabiraj & Ors

Subhasis Dasgupta, J

The impugned order No. 23, dated 17th September, 2016 passed by learned Civil Judge (Junior Division), 1st Court, Paschim Medinipur, in Title Suit No. 210 of 2011, allowing the prayer for addition of parties, under Order 1 Rule 10 of C.P.C. is the subject of challenge in this revisional application.

Petitioner/plaintiff instituted Title Suit No. 210 of 2011, in the court of learned Civil Judge (Junior Division), 1st Court, Paschim Medinipur, praying for a declaration over 'A' schedule property with a further decree for permanent injunction, restraining the defendants from disturbing the peaceful possession of the plaintiff in respect of 'A' schedule of the plaint. The instant suit was filed impleading as many as five (5) defendants, who were alleged to have threatened the plaintiff/petitioner from disturbing his peaceful possession over 'A' scheduled property by celebrating Dugra Puja forcibly, erecting pandal there in the open space available in 'A' scheduled property. The dispute pertaining to threat of dispossession by the alleged performance of celebration of Durga Puja was principally directed against R.S. Plot No. 110 of Mouza- Cantonment Barpathar, District- Paschim Medinipur.

The simpliciter case of plaintiff/petitioner is that the plaintiff's grandfather in the year 1925 by sale deed, being No. 4202 of 1925, purchased property in Plot No. 110 of Mouza- Cantonment Barpathar, appertaining to R.S. Khatian No. 78. The predecessor of the plaintiff, after purchase of 'A' scheduled property, got his name recorded in record of right. Thereafter, on the strength of a decree passed in Title Suit No. 138 of 1989 and by inheritance plaintiff/petitioner claimed to be owner of the scheduled property.

The contention raised in such suit by the plaintiff/petitioner is that though the father of the plaintiff sold some portion of suit property from Plot No. 110 to different persons, but there was still some property left unsold in Plot No. 110. The defendants being local inhabitants, started disturbing his peaceful possession over the 'A' schedule property in the name of celebration of Durga Puja, Kali Puja and some other social functions in the vacant space available in 'A' schedule property.

The opposite party Nos. 1, 2 and 3 were added by the order of the court below, which is under challenge before this court. The case made out by the opposite parties in support of the prayer for addition of parties under Order 1 Rule 10 of C.P.C. was that they were the present president, secretary and cashier of Lokenathpally Sishu Seva Sangha, a registered organisation, and by reason of the post, they held at the moment, they were responsible to conduct the affair/business of such Sangha.

The added opposite parties attempted to celebrate several pujas like, Durga, Kali, Swaraswati and some other social functions in the vacant land available in Plot No. 110, contending inter alia in their petition under Order 1 Rule 10 C.P.C. that such land along with Plot No. 112 was a "Khas Mahal" Land, and over which the plaintiff had no right, title and interest so as to prevent the added parties from celebrating such social functions including several pujas. The office of such Sangha is said to be situated in the Plot No. 112, and it is accessible through plot No. 110. It was further contended by the added parties that the petitioner's predecessor might have purchased an area of five (5) bigha odd, which in the long run had been sold out to several purchasers leaving no right, title, interest for the petitioner to claim his any right over surplus land, available in R.S. Plot No. 110, which is alleged to be measuring a total area of more than three (3) acres of land, apart from the land covered in the Plot No. 111. It is also the case of added parties that the defendants impleaded in the original suit are not the present office bearers of the Sangha, having no direct nexus with the affairs of such Sangha, to be carried on for Sangha, and out of five persons impleaded as defendants in the original suit, defendant No. 3 (Abhinash Rudra) had already left this world, and for which the plaintiff till date had not taken any steps in accordance with the provision of law.

The added parties thus came up strongly contending that under garb of this pending civil suit, the petitioner/plaintiff has been trying to grab the entire area of land available in Plot No. 110, which was not at all his purchased property.

In the instant revisional case, the State appeared as opposite party to contest the case. The State also filed a petition in the court below under Order 1 Rule 10 read with Section 151 of C.P.C. for being added as party, contending inter alia therein that the State had some specific interest in the disputed land, which was vested land being the old Khas Mahal land.

Upon consideration of the proximity of interest, the prayer for addition of the parties was allowed by the learned court below for proper adjudication of the suit.

Learned advocate for the petitioner/plaintiff submitted that the learned court below improperly exercised its authority, while allowing the petition for addition of parties, without truly appreciating the facts and circumstances involved in a case, where the added parties, other than State, had no specific right, title and interest, supported by documents, legally enforceable in a court of law.

Referring the order passed in Misc. Appeal No. 72 of 2017, passed by learned District Judge, Paschim Medinipur, preferred against the rejection of the prayer for injunction, sought for by added defendants in the court below, learned advocate for the petitioner submitted that upon consideration of the entire facts and circumstances of the case, learned Judge of the 1st Lower Appellate Court in connection with injunction application had specifically came to a finding that the persons seeking injunction on the strength of an order allowing them to be added parties to a case had no right, title, interest and possession over the schedule property, and this aspect not having been taken care of by the learned court below, the order directing addition of parties could not be allowed to stand any more.

Attention of the court was drawn by the learned advocate for the petitioner to several orders, passed in writ jurisdiction of this court in order to persuade the court to believe that the prayer for permission to celebrate Durga Puja in 'A' schedule land was even rejected earlier repudiating the claim of the defendants.

Learned advocate for the petitioner however, raised no objection as against the State/opposite party for being added as defendant in the pending suit.

Learned advocate for the opposite parties (added defendants) controverting the submission of petitioner submitted that whatever right the predecessor of petitioner/plaintiff had earlier with respect to Plot No. 110 that had already been extinguished by reason of sale of land from such plot to several buyers leaving no tangible right, title, interest for petitioner/plaintiff to survive for raising any claim against the surplus land available in Plot No. 110, on the ground that the Plot No. 110 measured a total area of about three (3) acres of land, while the petitioner's predecessor purchased an area of five (5) bigha and odd in Plot No. 110.

According to added opposite parties, though the permission for celebration of Durga Puja and other social functions/performances of the Sangha was not considered in Constitutional writ jurisdiction of this court including its appellate forum, vide order dated 26.09.2014 passed in AST 405 of 2014 (ASTA 294 of 2014) and the order dated 08.06.2016, passed in M.A.T. 511 of 2016 with C.A.N. 3113 of 2016, with C.A.N. 3115 of 2016, with C.A.N. 3117 of 2016, but the High Court in connection with such matters, particularly in appellate jurisdiction, directed the parties to get their right settled or declared before Civil Court upon sensing the pendency of civil suit over the subject matter, in connection with which the private parties, sought to be added, as "added opposite parties".

It was thus proposed by the added opposite parties, that on being emboldened by such observation, made in writ jurisdiction of this High Court and its appellate jurisdiction, the prayer for addition of parties was made for the determination of the matter in controversy between the parties.

The only point thus required to be addressed by this court is whether the prayer for addition of party was rightly considered by the Trial Court upon considering the provision of law incorporated in Order 1 Rule 10 of C.P.C. or not.

The office of the added opposite parties is stated to be situated at Plot No. 112, which is a vested land. On the strength of a notification dated 29.01.2019, issued by Government of West Bengal, Land and Land Reforms Department and R. R. Department, the petitioner /plaintiff claimed his rayati interest in respect of the property covered in 'A' schedule land of plaint on the ground by reason of such notification, the occupier in possession of the land was declared as rayat. In the original suit instituted in the year 2011, the State/opposite party could not be impleaded as necessary party to this case, while seeking declaration from court, and the State was subsequently allowed, as added defendant by reason of grievance having expressed in the petition for addition of party, revealing an interest of the State over the scheduled property, requiring adjudication on the prayer of petitioner/plaintiff.

The petitioner/plaintiff during the course of hearing of this case did not dispute with the addition of party, as added defendant, so far as State is concerned.

In the said notification dated 29.01.2019, issued by the Government of West Bengal, occupier/possessor in four (4) different categories, mentioned therein, who are in possession of land, styled as "Khas Mahal", were sought to be regularised upon fulfilment of certain eventualities.

According to petitioner, clause 5 (i) of such notification will attract the case of the petitioner/plaintiff on the ground that petitioner/plaintiff being predecessor in interest of his deceased grandfather continued to possess 'A' schedule property, which was originally purchased by sale deed of his predecessor.

Indubitably the added opposite parties without any valid documents proceeded to challenge the title of the plaintiff/petitioner, alleging that the predecessor of the plaintiff had already sold the properties purchased, and thereby extinguished all his right, title and interest in respect of remaining land available, being unsold and existing in Plot No. 110.

When State was allowed to be impleaded as added defendant in this case for the alleged interest of the State over the schedule land, the implication of the added opposite parties No. 1 to 3 in such circumstances would not prejudicially affect the right, title and interest of petitioner/plaintiff, if there be any, at all with respect to Plot No.110.

It is true that parties, sought to be added, have no document to produce, who challenged the right, title and interest of the petitioner/plaintiff, and what the learned 1st Lower Appellate Court had observed in connection with Misc. Appeal No. 72 of 2017, preferred against the rejection of prayer for injunction, sought for by added defendants. The rejection of the prayer for injunction, however, would not make the opposite parties to be disentitled for being added as added defendants in the suit below, when the Trial Court upon exercising its authority, proceeded to allow addition of the parties for proper adjudication of the suit. The prayer for addition of parties is thus not to be circumscribed by the fate of the injunction application under Order 39 Rule 1 and 2 of C.P.C. The prayer for interim order of injunction of the petitioner/plaintiff in connection with Title Suit No. 210 of 2011, was refused and the interim order of injunction even could not be granted in Misc. Appeal No. 75 of 2011, preferred by the petitioner/plaintiff. It is however, independent and has to be decided in accordance with the principle laid down in Order 1 Rule 10 (2) of C.P.C. and in doing so, the court has to adhere to the provisions of law having understood the spirit underlying therein to serve the legislative intendment.

It would be profitable here to refer Order 1 Rule 10 (2) of C.P.C. which may be mentioned hereunder:

"Court may strike out or add parties. - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

Order 1 Rule 10 (2) of C.P.C. authorises the court to add a person as a necessary party in the suit to enable the court to effectively adjudicate and completely adjudicate upon and settle all the questions involved in the suit.

The words much stressed upon in Order 1 Rule 10 (2) of C.P.C. are "for effective and complete adjudication" of matters between parties and that is for all the questions involved therein, so that dispute pending between the parties could be resolved permanently. When the Trial Court upon exercising its due judicial discretion, was of the view that the presence of the added opposite parties might help court to effectively and completely adjudicate the matter in controversy completely between the parties permanently, there is hardly illegality committed by the Trial Court allowing the prayer for addition of the parties in the given set of facts.

Upon perusal of the order dated 08.06.2016, passed in M.A.T. 511 of 2016 with C.A.N. 3113 of 2016, with C.A.N. 3115 of 2016, with C.A.N. 3117 of 2016, it appears that on the prayer of defendant No. 1 (Asim Kabiraj), who does not hold any office bearer post at the moment, the High Court in civil appellate jurisdiction directed the parties to get their rights settled before the Civil Court keeping in view the pendency of civil suit. The persons added are the present office bearers of the Sangha, and accordingly filed petition under Order 1 Rule 10 of C.P.C. to get their grievance settled, in context of provision of law.

In connection with a mandamus appeal preferred by added opposite party No. 2, the permission to celebrate Durga Puja in the year 2014 was not considered upon visualising the pending civil suit, filed in the court below. The presence of added opposite parties including the State would rather help the petitioner/plaintiff to get his rights adjudicated most effectively and completely, and i.e. for permanently.

The revisional application is thus without any merits.

The order impugned would thus go unaltered.

The revisional application fails.

With this observation, the Revisional Application thus stands disposed of.

Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.