Nazir Hussain Khan vs Khalid Hussain Khan

This petition has been filed by the petitioner seeking setting aside of order dated 30.11.2018 passed by learned Sub-Judge (CJM), Poonch by virtue of which application of the petitioner for impleading him as party defendant in a suit filed by the respondent herein against the State has been dismissed.

The case of the petitioner is that litigation between the petitioner and the respondent (defendant therein) is already going on in Revenue Court as the judgment passed by the Collector Agrarian Reforms (SDM) Mendhar dated 21.06.2016 has been challenged by the respondents before the Deputy Commissioner District Collector, Poonch by way of filing an appeal, which is pending adjudication. It is stated that during the pendency of this appeal, the respondent filed a civil suit before the Sub Judge (CJM) Poonch for permanent prohibitory injunction without impleading the petitioner herein as a party respondent therein. It is further stated that on coming to know about the pendency of the suit, petitioner moved an application bbefore the court below, but the Sub-Judge (CJM), vide order dated 30.11.2018 rejected the said application of the petitioner without appreciating correct position of law and fact that already litigation between the petitioner and respondent herein is pending before the Deputy Commissioner District Collector, Poonch. It is further stated that prior to filing of suit by the respondent herein, petitioner filed an application before the SDM Collector, Agrarian Reforms Jammu against the respondent for restraining him from raising construction over the suit land falling in Khasra No.1202/555 situated at village Gholad Tehsil Mendhar, District Poonch, being State land.

Learned counsel for the petitioner states that on 21.06.2016 the Collector Agrarian Reforms (SDM), Mendhar categorically held that mutation copy produced by the respondent herein before him is a forged and fabricated one which is required to be cancelled.

Against the aforesaid order, respondent filed an appeal before the learned Deputy Commissioner, Collector, Poonch which is pending before the said court.

Respondent herein has filed objections stating therein that the petitioner is not a necessary party as he has not sought any relief against him. It is averred in the objections that petitioner herein has taken a contradictory plea in the application filed for impleading him a party defendant before the court below and another application filed before Sub-Divisional Magistrate, Mendhar.

I have heard rival contentions of learned counsel for the parties and given my thoughtful consideration to whole aspects of the matter.

The operative para of impugned order dated 30.11.2018 reads as under:-

"Heard the arguments from both the sides and also gone through the application, objections and other record. The Ld. counsel for the applicant while trying to make out a case for arraying the applicant as defendant has submitted that the applicant Nazir Hussain is the brother of the plaintiff. He is In possession of adjacent land and on a case filed by him against plaintiff before SDM Mendhar the plaintiff was evicted from the suit land which is State land and plaintiff has challenged the said order of SDM Mendhar in appeal before Deputy Commissioner wherein he is a party, it is also submitted that there is ghail and chouwn of applicant in suit land and being so he is proper and necessary party. Accordingly a prayer for arraying the applicant as defendant is made.

On the other hand the Ld. Counsel for the plaintiff / non-applicant has submitted that the present suit is filed by the plaintiff against the State and no relief is sought against the applicant. It is further stated that due to strange relation the applicant wants to get the plaintiff dispossessed as a measure d of revenge and on the basis of strange relationship he wants to become party in the preset suit, otherwise he has no locus standi to approach the court for arraying him as party as defendant in the present suit whereas neither any relief against the present applicant nor against any other civil person is sought by the plaintiff and a payer is made for dismissal of the application is made.

As per pleading the plaintiff claim is that he is in possession of 1 kanal state land under Kh.No. 555 situated at village Gohlad Tehsil Mendhar and due to his long time possession same is mutated in his name in terms of govt. order No. 394-C of 1962 and on the basis of possession the plaintiff is claiming the permanent prohibitory injunction against the defendants for note evicting / dispossessing him from the suit land. Whereas as per defendants the revenue officials the plaintiff is neither in possession of the suit land nor any mutation in terms of govt. order 394-C of 1962 is attested in his favour.

Order 1 rule 10 and Sub-rule (2) CPC provide for struck out and addition of parties and this rule empower the court to add any person as party without application if appears just on either of following grounds that:-

1- A person or any persons who ought to have been joined as plaintiff or defendant but is not so join.

2- Any person without his presence the question involved cannot be completely decided.

The Hon'ble Supreme court of India in Raiza Begum Vs. Anwar Begum AIR1958 SC 586 has laid down the following principles /guideline for adding parties.

1-Adding of parties is not adjudication but a judicial discretion which has to be exercised in view of all facts and circumstances of a particular case.

2- In a suit relating to property, the person added should have a direct interest distinguishable from commercial interest in the subject matter of litigation etc.

In the present case the plaintiff is seeking permanent prohibitory Injunction against the defendant over a piece of State land and he has not claiming any relief against the present applicant or any other private person.

The Hon'ble High court of J&K in Abdul Ghani Vs Faiz Ahmed Khan 300(3) JKJ has held that in a suit it is choice of the plaintiff to make any person a defendant against whom he sought relief. A third person against whom no relief has been sought and whose presence is not necessary for deciding the suit cannot be arrayed party to the suit and cannot be permitted to set up his independent case. The Hon'ble high court J&K in another case titled as Rafiqa Vs. Habibullah Bhatt 2007 (II) SLJ JK 538 has held that the plaintiff being dominus litis cannot be forced to added a party against whom he does not want to fight for seeking any relief.

The Hon'ble supreme court in Ramesh Vs. Municipal Corporation Bombay 1992 (II) SCC 524 has held that the persons to be join as party must be one whose presence is necessary for correct solution of the dispute. In Ved Pal Vs. Prem Datt 2006 SLJ JK 635 it is held that for allowing the application for party three elements must exist.

1- That impleadment is necessary for disposal

2-Without impleadment court would not be able to determine the question involved effectively and completely.

3- The question so involved arises from the suit within given frame.

In Shamim Ahmed Shamim V/S Custodian Evacuee property 1980 SLJ J&K 120 the Hon'ble High court of J&K has held that under this rule the court is not required to load the record with un- necessary parties who do not matter or finger in the controversy .

In light of above references I am of the considered opinion that the present suit of the plaintiff for permanent prohibitory injunction is against the State through Revenue Officials for a piece of state land measuring 1 kanal under Kh.No. 555 situated in village Gohlad Tehsil Mendhar and no relief is claimed either against the present applicant or any other private person. The applicant is not seeking any claim or relief regarding the suit land and he just wants to get the plaintiff dispossessed from the suit land. This being so, I do not find any merit in the application of the applicant for arraying him as defendant in the present case. Being so, the application is rejected. As before filing of the present application the case was pending at the stage of preliminary statements of the parties, being so let file come up for preliminary statements of the parties on 31/12/2018."

From bare perusal of impugned order, it is evident that trial court has dismissed the application on the ground that plaintiff has not sought any relief against the applicant/petitioner herein, so he is not necessary party.

But fact remains admitted that plaintiff has filed suit for permanent prohibitory injunction though against State with regard to land under Khasra No.2102/555 situated at village Gohlad, which is State land on the basis of mutation no.1107, which has already been declared forged by Collector Agrarian Reforms (SDM ) Mendhar on 21.6.2016 on the complaint of petitioner. The relevant para of order of SDM reads as under:-

"5. Complainant produced another copy of the mutation no. 1107 which is actually different from the one placed on record by the defendant. Complainant stated that this is the actual and genuine copy of the mutation no. 1107 & copy placed on record by the defendant is fake & forged.

Proper examination of record produced by the Patwari Halga revealed that mutation copy of which has been produced by the defendant has been inserted latterly and is fake and forge. Actual and genuine mutation No. 1107 is one which has been entered for making correction in Girdwari for Khasra No. 1202/555 and was later on attested as treated cancelled. Parth Patwar of mutation registered which has printed S.No.0300601 to 0300641. In this register insertion has been made as between S.No.0300608 and 0300610 thereby overwriting with Pen over printed S.No. and a page has been inserted just to adjusted this fake mutation.

Perusal of record of Tehsil office Mendher further revealed that this fake, fudged and fraud mutation has neither being deposited not existed any way in the record. Room. In fact this mutation is not part of original Revenue record.

Further in terms of Govt. order No. 394 of 1962 conferment of proprietary rights in the state land on such cultivars of Poonch District are given who had obtained rights of cultivation from the then Raja of Poonch.

In view of what has been observed by this court, this court holds that mutation copy of which produced by the defendant is fake, forged and fabricated, and hence is required to be treated cancelled & Tehsildar Mendhar shall obtain formal approval for cancellation of this fraud and fake mutation from Dy. Commissioner, Poonch. Tehsildar Mendher is directed to retrieve the Govt. land and also conduct enquiry and furnish factual report in the matter of committing this fraud so that case is forwarded to some premier agency for enquiry and registration of F.I.R. against the culprits."

Thereafter, respondent has already filed an appeal before Deputy Commissioner/Collector Poonch, which is pending adjudication. So even if petitioner may not be a necessary party, but a proper property, so as to apprise the trial court true facts of case.

In 2014 (36 ) RCR (Civil) 762 in case titled Laxmikanta Kar Vs. Surendra Parul and others, wherin it is held as under:

"6. In Razia Begum V. Sahebzadi Anwar Begum and others, AIR 1958 SC 886, the Supreme Court has 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 distinguished from a commercial interest, in the subject-matter of the litigation.

In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786, the Supreme Court has held that 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.

Considering the present case on the anvil of the decisions cited supra, we are of the view that the villagers are necessary parties to the lis. The contention of the appellant that he is in possession of the suit property since 1945 by constructing a house thereon is the subject-matter of the suit. The learned Single Judge has rightly observed that the same cannot be adjudicated in an application under Article 226 of the Constitution of India. Whether the Kissam of the suit land is "Gharabari" or "Nayanjori", the same can be also gone into by the learned trial court."

In 2015 (4) W.L.N. 305 in case titled Mahant Rameshwer Chela Chimani Ram v State of Rajasthan and others, wherein it is held as under:-

"7. On the other hand, the counsel appearing for the respondents no. 4 to 8 while supporting the order passed by the court below submitted that the petitioner is not the owner of the property rather, he is managing the property as 'Mahant' and cannot claim any right over the disputed property. It is submitted that the applicant-Jeewan Das, the respondent no.11 herein, filed a complaint before the Assistant Commissioner, Devasthan, for registration of the property as public trust under the provisions of Rajasthan Public Trust Act, 1959, which is pending consideration before the Assistant Commissioner, Devasthan, Jodhpur and the petitioner has prayed in the instant petition for quashing the proceedings pending and therefore, the applicant-Jeewan Das is a necessary party in the suit. Learned counsel submitted that it is not even in dispute that the forefathers of respondents no. 4 to 11 constructed the temple over the land in question and the property is being managed by the trust and therefore, they are also interested in seeing that the disputed property is not grabbed and converted to personal use by the unscrupulous persons.

1 have considered the rival submissions of the learned counsel for the parties and perused the material on record.

As per the provisions of Order 1, Rule 10 (2), the court may at any stage add a person as a party to the suit as defendant or plaintiff, whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit.

It is to be noticed that in the plaint filed before the court below, the petitioner has specifically averred that the applicant Jeewan Das made a complaint to the Department of Devasthan for registration of the disputed property as public trust under the provisions of the Act of 1959. The complaint was rejected by the authority concerned vide order dated 31.8.04. Aggrieved thereby, Jeewan Das preferred an appeal before the Appellate Authority which was allowed vide order dated 07.01.09 and the matter was remanded to the Assistant Commissioner, Devasthan, Jodhpur for consideration afresh. Indisputably, in the suit filed, the petitioner has prayed for quashing the proceedings pending before Assistant Commissioner, Devasthan, initiated on the basis of the complaint lodged on behalf of the applicant-Jeewan Das. In this view of the matter, Jeewan Das is necessary party in the matter and his presence is absolutely necessary for adjudication of the dispute raised. It is also a matter of record that the forefathers of the respondents no.4 to 11 constructed and renovated the disputed temple/Samadhi, alleged to be the property of public trust. In this regard, a reply to the application preferred by one Shri lshwar Das for registration of the public trust which is being now pursued by the applicant-Jeewan Das, filed on behalf of the petitioner placed on record as Annexure R/4, is self explanatory."

While applying above law, it becomes abundant clear that court has power to add /implead any person/s as party/parties for enabling the court to effectually and completely adjudicate upon the questions involved in suit. In present case, definitely correctness of mutation 1107 would be main issue to be decided by court below; and this issue can be decided effectually when true facts are brought to the knowledge of court below by petitioner by filing written statement. Therefore, petitioner is a proper party. Hence, petition is allowed. Impugned order is set aside. Petitioner is impleaded as party -defendant in the suit and he shall file written statement within 30 days from the next date fixed in the suit. Parties are directed to appear before court below on 17.05.2019.