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Badri Vishal vs A.D.J Fatehpur & Others

High Court Of Judicature at Allahabad|31 March, 2011


Heard learned counsel for the parties.
Respondent no.3 ? Binda Deen Pandey has filed an injunction suit in the form of Original suit no.44 of 1994 against respondent nos. 4 and 5 ? Amar Bahadur Singh and Sher Singh. Petitioner filed application for impleadment stating therein that land in dispute was in the possession of the petitioner and on 22.7.1979 Gaon sabha had executed a patta in favour of the petitioner in respect of land in dispute. The impleadment application was allowed by the trial court/IIIrd Additional Civil Judge (Junior Division), Fatehpur on 8.9.2000. Against the said order plaintiff-respondent no.3 filed Civil revision no.51 of 2000. Additional District Judge, Court no. IV, Fatehpur allowed the revision on 2.8.2011. The said order has been challenged through this writ petition.
The plaintiff claimed that part of the property in dispute over which his house was constructed was purchased by him through sale deed dated 6.10.1970 from Ram Sewak and in respect of the other part of the property in dispute which was in the form of court-yard and southern part of phulwari (flower garden), the Gram pardhan of Malwan had granted permission deed (Ijajatnama) on 8.3.1971 to the plaintiff. The property is adjacent to the G.T. Road. Petitioner in his impleadment application stated that the entire disputed property was leased out to him by Gram samaj on 22.7.1979 and patta was executed and he got the map for construction passed from Public works department (P.W.D.). It was further stated that defendants of the suit intended to compromise the matter with the plaintiff.
In the judgment of the revisional court date of the order of the trial court against which revision was filed is mentioned as 8.2.2000.
The revisional court gave a curious reason to allow the revision. Firstly, it held that even though in the plaint plaintiff had claimed his ownership however, basically his case and relief was based upon possession and injunction on the basis of the possession was sought and that even though the applicant for impleadment (petitioner) had based his claim upon patta,. however, he had not said anything regarding his possession. After recording this finding the revisional court held that if the petitioner was impleaded, the suit which was basically based upon possession would be converted in a title suit which would amount to changing the nature of the suit. The copy of the impleadment application is Annexure-3 to the writ petition from the perusal of which it is clear that petitioner was claiming continuing title. He did not say that he was not in possession. Accordingly, a person who asserts title and does not specifically say in the application that he is not in possession, it may be presumed that he is asserting possession. In any case detailed facts are to be given in the pleadings. Application cannot be examined as minutely as a pleading.
In any case, petitioner was at least a proper party, even though he had a right to file independent suit also. Even otherwise there was no jurisdictional error in the order passed by the trial court.
Accordingly, impugned order passed by the revisional court is set aside. Order passed by the trial court is restored. All the parties are directed to appear before the trial court on 17.5.2011. On the said date petitioner shall positively file his written statement otherwise he shall not be permitted to file written statement. Petitioner shall not be granted more than two adjournments in the suit. In case petitioner seeks third adjournment in the suit, this writ petition shall be deemed to have been dismissed and petitioner shall be deleted from the array of the parties.
Plaintiff over the half of the property in dispute and petitioner over the entire property in dispute are claiming right on the basis of alleged allotment by Gaon sabha. Northern portion of the property in dispute is alleged to have been purchased by the plaintiff from Ram Sewak. It has not been stated that how Ram Sewak got the property. It is quite possible that Ram Sewak might also have claimed to be allottee by Gaon sabha. Neither plaintiff nor the petitioner can succeed unless the alleged allotment is shown to be valid. Under Order 1 Rule 10 (2) C.P.C. it is provided that the court on its own also, order the name of any person to be impleaded. The said sub rule is quoted below:
O.1 Rule 10(2) 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 persons 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.
Accordingly, trial court is directed to implead the gaon sabha concerned in the suit as defendant and issue notice to it. The trial court must decide as to whether any patta was validly granted to any of the parties or not. Both the parties shall prove the allegation of grant of valid patta by filing documentary evidence to show compliance of the requirements for valid patta including permission of S.D.O.
Writ petition is disposed of accordingly.
Office is directed to send a copy of this judgment to IIIrd Additional Civil Judge (Junior Division), Fatehpur or the court where O.S. no.44 of 1994 may be pending.
Order Date :- 31.3.2011 RS
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Badri Vishal vs A.D.J Fatehpur & Others


High Court Of Judicature at Allahabad

31 March, 2011
  • Sibghat Ullah Khan