Smti Jayanti Bora vs Kumud Ch. Das

Mr. N. Chaudhury, J. - The present petitioners as plaintiffs instituted Title Suit No.6/2015 in the Court of learned Munsiff No.2 at Morigaon praying for a decree for declaration of their right, title and interest and for recovery of possession by evicting defendant No.1 from the suit land measuring 2 Bigha 2 Katha 10 Lechas covered by Dag No.284 of K.P. Patta No. 8 under Morigaon mouza. It was stated in paragraph 6 of the plaint that the defendant No.1 did not have any semblance of right, title and interest over the suit land but started ploughing on the suit land on 15.03.2014. The objections raised by the plaintiffs and the proforma defendants fell flat and in the process the title of the plaintiffs over the suit land became clouded. Under such circumstances prayer was made that defendant No.1 be declared as a trespasser to the suit land and right, title and interest of the plaintiffs and the proforma defendants be declared over the suit land.

On being summoned the defendant No.1 appeared and by filing an application on 07.03.2015 stated in no uncertain terms that the defendant No.1 had no possession over the suit land at all. He is in possession of land under Dag No.216 of Patta No.52 only whereas the suit land is covered by Dag No.284 of the same Patta. He, therefore, prayed that his name be struck off from the array of parties.

The plaintiffs thereafter filed an application under Order I Rule 10 of the Code of Civil Procedure not for striking out the name of defendant No.1 from the suit but for addition of as many as persons, namely, Sri Jadab Chandra Das, Sri Kati Ram Bordoloi and Sri Deep Jyoti Bordoloi. Again, in paragraph 6 of this application filed on 17.04.2015 under Order I Rule 10(2) of the Code of Civil Procedure the plaintiffs stated that the aforesaid three persons sought to be impleaded had been engaged by defendant No.1 for cultivating the land. Nowhere it is stated in the application that these persons had trespassed into the land or that they have been occupying the same. The fact of alleged engagement by defendant No. 1 for encroachment of the land is also not disclosed in the body of the application.

Having noticed the recital of the application filed under Order I Rule 10 CPC the learned Munsiff passed order dated 28.04.2015 holding that the plaintiffs did not disclose as to what relief they sought from the people whom they wanted to be impleaded as defendants and so they were not necessary parties. Besides, the defendant No.1 having specifically stated that he has been occupying land covered by Dag No.215 and not of Dag No.284 as alleged in the plaint there was no merit in the application and accordingly the application for impleadment was rejected and the suit was fixed for ex parte evidence. It is this order which has been challenged in the present application.

I have heard Mr. H.K. Hazarika, learned counsel for the petitioners and Mr. R. Phukan, learned counsel for the opposite party No.1.

The instant revision petition has arisen out of a suit instituted by the present petitioners for declaration of their right, title and interest and for recovery of Khas possession with respect to the suit land described in the schedule to the plaint as against the defendant No.1. The defendant No.1 having appeared and filed application stating that he is not in possession of the suit land at all the claim of the plaintiffs do not appear to have been contested either. It is under such circumstances the learned trial Court thought it fit to fix the suit for ex parte evidence of the plaintiffs against the defendants. The learned trial Court did not find any reason as to why some three persons against whom no allegation has been made in the body of the plaint be impleaded as party. Even in the application under Order I Rule 10 CPC, no allegation has been made that these persons had encroached into the suit land or that they were already in possession thereof with effect from a given date. The said persons if in possession of the suit land and have not done any overt action as on date they cannot be said to be necessary parties as there cannot be any cause of action against them. The suit instituted by the plaintiffs will be decided between the parties to the suit on the basis of materials placed on record. Since there is no prayer against the three persons named in the application the learned trial Court has not committed any error in rejecting the application filed under Order I Rule 10 CPC.

The revision petition, therefore, does not deserve any interference. It is accordingly dismissed. Interim order passed earlier shall automatically stands vacated.