Heard Sri S.N. Tripathi learned counsel for the petitioner and Sri M. Sarwar Khan for the respondent Nos. 4 and 5. The petitioner filed a suit under Section 59/61 of the U.P. Tenancy Act, 1939. A copy of the plaint has been filed as Annexure 1. In Paragraph 3 of the plaint the recital is that the plaintiffs are continuing in possession as proprietors of the land and therefore the entry made in the Khatauni in Ziman 8 as a hereditary tenant is incorrect. The entry should be accordingly corrected treating the petitioner to be a proprietor of the land in Ziman 2. The detail of the properties have been indicated in the plaint itself.
The suit proceeded and in the said suit the respondent Nos. 4 and 5 sought impleadment. Their impleadment was rejected by the trial court vide order dated 12.10.1993 whereafter the suit itself was decreed on 18.10.1993.
The respondents contested the said rejection of their application by filing a revision. The revision was allowed by the order dated 11.5.2011 holding that since the name of the respondents was included in the "Khewat Chausala", therefore, they were proper and necessary parties in the suit instituted under Section 59/61 of the Act. It was further observed that the Zamindars of the Mahal in question were also not made parties and therefore the trial court should proceed only after impleading them as parties and try the matter accordingly.
The order rejecting the impleadment of the petitioner dated 12.10.1993 and the decree dated 18.10.1993 were set aside. The petitioner preferred a revision before the Board of Revenue contending that no revision was maintainable against the said orders and further the respondents were neither proper or necessary parties. Learned counsel further contends that the respondents could have sought their independent declaration as to their rights over the disputed property and the court below had committed an error by allowing the impleadment application. The Board of Revenue had not passed any order and the matter was pending consequent to the order of the revisional authority, as a result whereof the petitioner approached this Court by filing a writ petition No. 58262 of 2011. The said writ petition was disposed of on 11th October, 2011 with a request to the Board to proceed to decide the matter keeping in view the fact that the trial court was proceeding with the remand order. The Board proceeded to dispose of the matter partially accepting the claim of the petitioner that the revision was not maintainable yet keeping in view the provisions and the plea that has been raised, this error should be pointed out before the Commissioner himself through a review, and accordingly refused to interfere with the order passed by the Commissioner.
Sri S.N. Tripathi submits that once the Board has found the revision to be not maintainable, then the Board should have set aside the order and should have itself decided the said claim of the respondents for being impleaded. He further submits that as a matter of fact in law against the judgment of the trial court which had culminated into a decree, the respondents had a remedy of filing a regular appeal, and therefore the revision was not maintainable, which aspect has also been overlooked by the Board of Revenue.
Sri Khan submits that keeping in view the nature of the claim being contested the answering respondents are proper and necessary parties and the revisional court having found the same the order cannot be faulted with.
I have heard learned counsel for the parties, the order dated 12th October 1993 by which the impleadment application was rejected is only on the ground that the area for which declaration/relief was sought by the petitioner plaintiffs did not affect the area with which the respondents are concerned. The said order is cryptic and it does not contain any finding in relation to the fact as to how the respondents are proper and necessary parties keeping in view the principles as indicated in sub-section (2) of Section 59 of the 1939 Act readwith the principles of Order 1 Rule 10 of C.P.C. It is trite law, that a proper and necessary party is one without whom the suit cannot proceed. This has been explained in the case of Shiv Deo Singh and others Vs. State of Punjab and others, AIR 1963 SC 1909.
In the instant case Section 59 of 1939 is quoted herein under:-
"Sec. 59. Suit by tenant for declaration of right of share.- (1) Any person claiming to be a tenant or a joint tenant may sue the land-holder for a declaration that he is a tenant, or for a declaration of his share in such joint tenancy.
(2) In any suit under this section any person claiming to hold through the land-holder, whether as tenant or otherwise, shall be joined as a party."
A perusal of the said provision leaves no room for doubt that a person claiming to hold the land through the land-holder whether as tenant or otherwise shall be joined as a party. The words shall therefore is mandatory and in this view of the matter the legislative intent is clear that a suit will proceed after impleading such a party.
Sri Tripathi contests the claim of the respondents and he submits that the "Khewat Chausala" which has been relied on by the respondents was not there before the trial court and was placed before the revisional court for the first time. Be that as it may, the impact of the said Khewat has not been discussed in the order dated 12.10.1993 on the principle of proper and necessary party and the application has been rejected only on the ground that the area of the applicant is not affected.
In the opinion of the Court this should not be the approach of the trial court while deciding as to who is a proper and necessary party. The parameters should be clear in view of the provisions of Section 59 quoted hereinabove read with the principles of Order 1 Rule 10 C.P.C. Accordingly, I am of the opinion that this aspect deserves to be looked into by the trial court while proceeding to consider the request of the respondents for being impleaded in the suit.
So far as the issue of maintainability of the revision and the order of the Board of Revenue is concerned, it is no doubt true that a revision would have been maintainable as against the order dated 12th October, 1993 but so far as the decree dated 18th October, 1993 is concerned the same was appealable and not revisable. The learned Commissioner therefore committed an error by entertaining both the revisions and treating them to be maintainable which aspect has also been dealt with by the Board in the impugned judgment. The Board having found that the revision was not maintainable, could not have called upon the petitioner to file a review application. If the revision itself was not maintainable then there was no occasion to file a review application. Therefore the Board fell in error by making that observation and as a matter of fact it should itself have gone into the matter relating to the claim of the respondents for being impleaded instead of relegating the parties to a forum which was not available for the said purpose. To that extent argument on behalf of the petitioner is correct.
In view of the conclusions drawn herein above, neither the order passed by the trial court dated 12th October, 1993 is sustainable nor the order passed by the revising authority or by the Board of Revenue can be sustained. Accordingly, the issue has to be decided as to whether the respondents are proper or necessary parties or not. This issue has to be decided in the light of the observations made herein above.
Accordingly, the order dated 12th October, 1993 as well as the order of the Board of Revenue dated 17.10.2011 are set aside. Consequently the decree dated 18.10.1993 also cannot be sustained which is set aside. The trial court shall now proceed to decide the application filed by the respondents seeking impleadment in the suit in accordance with the observations made herein above within a period of three months of the date of presentation of a certified copy of this order before the trial court and then proceed to decide the suit accordingly.
The writ petition is allowed.
Dt. 9.11.2011 Sahu