Prem Chand And Others vs State Of Himachal Pradesh And Others

Ajay Mohan Goel, J

By way of this petition filed under Section 115 of the Code of Civil Procedure, the petitioners assail order dated 14.05.2016, passed by the Court of

learned Additional District JudgeÂII, Solan in a Miscellaneous Application filed by the present petitioners in Civil Appeal No. 17ADJÂII 13 of 15/11,

titled as The State of Himachal Pradesh Vs. Raj Kumar and others, vide which, their application filed under Order I, Rule 10 of the Code of Civil

Procedure, for being impleaded as “proforma respondentsâ€​ in the first appeal, has been dismissed.

Brief facts necessary for the adjudication for the present petition are as under:

Petitioners herein filed an application under Order I, Rule 10 read with Section 151 of the Code of Civil Procedure in Civil Appeal No. 17ADJÂII 13

of 15/11, titled as The State of Himachal Pradesh Vs. Raj Kumar and others on the ground that they were residents of Mauza Sanwara, Pargana

Basal, Tehsil Kasauli and the suit land, subject matter of the appeal, was meant for common purpose of village community and general public had free

access to the same, which was for the use and enjoyment of all the inhabitants of Mauza Sanwara. As per the petitioners, water sources of the

villagers were situated on the suit land and the villagers used to take water from the said sources for drinking purpose and for dayÂtoÂday

requirements etc. A cremation ground for inhabitants of Mauza Sanwara was also situated over the same and in their capacity as estate right holders,

applicants/petitioners enjoyed all rights over the suit land without any objection. It further stood averred in the application that the Government had

constructed a Water Bowari over the suit land by investing Government money on the same. It was further the case of the petitioners that the suit

land was never in the cultivating possession of respondents No. 2 to 19 before the learned Appellate Court nor their predecessorsÂinÂinterest ever

paid any rent to any statutory authority, as this land was Gair Mumkin Khala, Gair Mumkin Chowi, Charand and Gair Mumkin Khad etc. As per the

petitioners, said respondents/nonÂapplicants were interfering in the right of enjoyment, use and utilization of the villagers and other inhabitants of the

area and were also threatening to block the path existing over the same. It was further averred in the application that applicants came to know in the

month of June, 2015 that respondents No. 2 to 19 had filed a Civil Suit, i.e., Civil Suit No. 151/1 of 2007, titled as Raj Kumar Vs. State of H.P., which

stood decided by the Court of leaned Civil Judge (Senior Division), Kasauli on 20.05.2011 and a decree of declaration and permanent prohibitory

injunction stood passed by the learned Court in favour of the plaintiffs therein. As per the petitioners, the suit was a result of connivance intra the

parties and it is for this reason that they were never impleaded as party defendants in the same. Further, as per the petitioners, taking advantage of the

judgment and decree passed by the learned Court below and the revenue entries, which thereafter stood altered, the respondents were threatening to

dispossess the petitioners/applicants from the suit land. It also stood mentioned in the application that the applicants had also filed an independent Civil

Suit for declaration that mutation No. 884 dated 29.12.2012 be declared as null and void and also for permanent prohibitory injunction, which was

pending before the Court of learned Civil Judge (Junior Division), Kasauli. It is on these grounds that the application stood filed by the

petitioners/applicants that as they were estate right holders and necessary and proper parties in the appeal, therefore, they be impleaded as

“proforma respondentsâ€​.

The application stood resisted by the non applicants/plaintiffs, inter alia, on the ground that the petitioners were not the estate right holders, as they

had purchased small pieces of land ranging from 2 to 6 biswas somewhere in the year 1970 and, thus, they did not constitute proprietary body of the

village as on 26.01.1950 and, therefore, the petitioners/applicants were not having any right to file the application. The factum of the suit land being

utilized by the petitioners was also denied and it was denied that there were water sources etc. situated on the suit land which were being utilized by

the villagers. The existence of cremation ground was not denied, but it was mentioned that the same was not only being used by the residents of

Mauza Sanwara, but also by the residents of Pargana Basal. It also stood mentioned in the reply that incidentally the cremation ground was not

situated on the suit land, but it was situated on a separate land of Mauza Mando Matkanda. Other averments which stood made in the application filed

under Order 1, Rule 10 of the Code of Civil Procedure were denied by the non applicants and accordingly, a prayer was made for dismissal of the

application.

Vide impugned order dated 14.05.2016 (Annexure PÂ3), the application has been dismissed by the learned Appellate Court, inter alia on the ground

that the petitioners were neither party in the main Civil Suit nor they moved an application for being impleaded as a party therein, however, they

intended to be impleaded as party in the appeal on the ground that they were estate right holders of Mauza Sanwara. Learned Appellate Court

observed in the order that in the Jamabandi for the year 1951Â52, which was on record, the suit land was recorded in the ownership of Shamlat Deh

Hasab Rasad Jer Khawar and in the column of possession Makbuj Malkan Murthianan was recorded. It further observed that similarly in the

Jamabandi for the year 1959Â60, 1968Â69, same entries were reflected and in the Jamabandi for the year 1979Â80 in the column of ownership,

Sarkar Daulatmandar was recorded and in the column of possession Makbuja owner was recorded. It further observed that same entries were

reflected in the Jamabandi for the year 1989Â90. It further held that if the petitioners indeed were the estate right holders of Mauza Sanwara, then

why their names were not reflected in the column of possession and as the petitioners had failed to point out any exceptional circumstance, which

warranted their impleadment as parties in the appeal, it accordingly dismissed the application by holding that the petitioners were not necessary parties,

as their names had not been recorded in the column of possession since 1951Â​52.

Feeling aggrieved, the petitioners have filed the present petition.

I have heard learned counsel for the parties and also gone through the documents appended with the petition.

At this stage, it is pertinent to state that learned Senior Counsel appearing for some of the private respondents has pointed out that in Civil Suit

which has been filed by the present petitioners, subsequently an amendment was sought to the effect that a decree for declaration has also been

prayed to the effect that the judgment and decree passed in Civil Suit No. 151/1 of 2007, titled as Raj Kumar and others Vs. State of Himachal

Pradesh be declared as null and void, which stands allowed.

Having gone through the averments made in the application filed under Order 1, Rule 10 of the Code of Civil Procedure and having perused the

impugned order, this Court is of the view that the order passed by the learned Appellate Court, whereby the application of the petitioners for being

impleaded as “proforma respondents†has been dismissed, calls for no interference. The High Court in exercise of its powers conferred under

Section 115 of the Code of Civil Procedure can interfere with an order passed by the learned Court below in case, learned Court below fails to

exercise jurisdiction vested in it or exercises such jurisdiction which is not vested in it or exercises jurisdiction vested in it with material irregularity.

The impugned order does not demonstrate that in the course of dismissing the application which was filed under Order I, Rule 10 of the Code of Civil

Procedure, learned Appellate Court has acted with material irregularity. Learned Appellate Court has assigned reasons, which in my considered view,

are valid reasons as to why it did not find favour with the application so filed under Order I, Rule 10 of the Code by the petitioners to be impleaded as

“proforma respondentsâ€. The findings returned by the learned Appellate Court that the names of the petitioners were not recorded in the column

of possession in the Jamabandi since 1951Â52 could not be proved to be contrary to the record during the course of arguments. Further, this Court

fails to understand as to why the prayer which was made in the application filed under Order I, Rule 10 of the Code of Civil Procedure was for

impleading the petitioners as “proforma respondentsâ€​.

Be that as it may, otherwise also, as the petitioners have already filed a suit, in which, relief has been sought for declaring the judgment and decree

dated 20.05.2011, passed by the Court of learned Civil Judge (Junior Division), Kasauli, District Solan in Civil Suit No. 151/1 of 2007, titled as Raj

Kumar and others Vs. State of Himachal Pradesh and others as null and void, therefore also, in my considered view, the order passed by the learned

Appellate Court, impugned by way of this petition, calls for no interference, because it shall always be open for the petitioners to prove their case that

the judgment obtained by the private respondents herein, is null and void in the Civil Suit which is pending adjudication. The only observation, which

this Court can make is this that in the course of adjudication of the Civil Suit, which has been so filed by the present petitioners, learned Court below

will not be influenced by any observations which have been made by the learned appellate Court while dismissing the application filed by the

petitioners herein under Order I, Rule 10 of the Code of Civil Procedure and the Civil Suit shall be decided on its own merit, on the basis of pleadings

of the parties as well as the evidence which may be led by the parties before it. Similarly, while deciding this particular petition, the Court has not gone

into the merits of the contentions of the petitioners and suffice it to observe that any observation made by this Court in this order shall also not be

taken into consideration by the learned Court below while deciding the Civil Suit filed by the present petitioners. With these observations, the petition is

dismissed, so also pending miscellaneous applications, if any.