Ratan Khanna And 2 Ors. vs Moradabad Development Authority
2019 Latest Caselaw 6277 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 72
 

 
Case :- SECOND APPEAL No. - 167 of 2014
 
Appellant :- Ratan Khanna And 2 Ors.
 
Respondent :- Moradabad Development Authority
 
Counsel for Appellant :- Kshitij Shailendra
 
Counsel for Respondent :- P.K. Singh
 

 
Hon'ble Rajiv Joshi,J.

This is plaintiffs' second appeal filed under Section 100 CPC against the judgment and decree dated 30.11.2013 passed by Additional District Judge, Court No. 6, Moradabad, whereby Civil Appeal No. 37 of 2012 filed by the appellant-appellants was dismissed affirming the judgment and decree dated 9.11.2011 passed by Additional Civil Judge (Senior Division)/Judge Small Causes Court, Moradabad in Original Suit No. 1626 of 1994 (Ratan Khanna and others Vs. Moradabad Development Authority), whereby the suit filed by the plaintiff-appellants was dismissed.

Brief facts of the case are that plaintiffs-Ratan Khanna, Prem Khanna and Ram Nath Katyal filed a suit against the Moradabad Development Authority for grant of permanent injunction restraining the defendant not to make encroachment over the land of passage (raasta) situated towards southern side and also close the open doors shown by letter G, H, I. As per the plaint averments, plaintiff-1 Ratan Khanna and plaintiff-2 Prem Khanna purchased the disputed land situated in village Majholi, District Moradabad in the year 1971 and 1979 through an agreement to sell from Smt. Savitri Kaire and thereafter they became the owner and in possession over the said property mentioned in Schedule A of the plaint. There is 20 feet wide common passage from very beginning. Plaintiff-1 and 2 constructed a boundary wall shown by letters A, B, C and D and open door towards southern side, which has been shown by letters G, H and I in the plaint map. Plaintiff-2 sold some part of the land shown by letters A, D, E, F from the land shown by letters A, B, C, D to the plaintiff-3 Ram Nath.

Subsequently, plaintiff-3 also purchased the said land in the name and style of M/s Poonam Enterprises, showing himself to be a partner and opened a factory which is running since 12.11.1992. It is further averred in the plaint that there is no alternative way (raasta) except the way shown towards southern side, which is 20 feet wide since 1971. The land of gata no. 213 was acquired by the State Government for the defendant-Moradabad Development Authority but the land having area of 0.21 acre of the said gata no. 213 was left from acquisition and therefore Smt. Savitri Kaire remained the owner of 0.21 acre of land of gata no. 213 and the plaintiff-appellants have obtained the right to use the said land as way (raasta) from her.

It is further stated in the plaint that on 22.10.1994 at about 4.00 pm, the officials of the defendant-Moradabad Development Authority put their bricks etc. over the passage in dispute and intimated to the plaintiff-appellants that the doors opened towards the raasta are illegal, so these are being closed. The plaintiff-appellants have informed the defendant's officials that doors in dispute were existed since 1971 i.e. much prior to establishment of Moradabad Development Authority, which clearly indicated in the map, but the defendant did not pay any heed and therefore, the suit was filed.

The reliefs so claimed in the suit are:

(i) for declaration that the raasta in suit area 0.21 acre is free from acquisition;

(ii) for issuance of prohibitory injunction against the defendant or his agent not to encroach over the way in suit situated in South of the plaintiffs properties and not to put any hindrance in the egress and ingress and not to close the door opening on the way in suit; and

(iii) issuance of mandatory injunction to demolish the wall raised during the pendency of the suit.

The defendant-Moradabad Development Authority contested the suit and filed its written statement (30/C) wherein it is stated that there is no door or raasta as alleged by the plaintiffs on the disputed land. The total area of gata no. 213 was 5.58 acres, out of which 2.05 acre land was acquired by the defendant and the defendant took the possession over the same. It is further averred in the written statement that after acquisition of the land by the defendant, only one acre land was left in gata no. 213, whereupon the factory of the plaintiff exists and there is no door opened towards East side or South side. Some portion of the land of the plaintiff situated towards Ease side of the factory, is acquired by the defendant and the rest portion of the land is towards Southern side. There is no way of factory of the plaintiff towards East or South. The plaintiffs themselves want to create hindrance in development work by making illegal pressure and took possession over the land acquired by the defendant, in fact there is no raasta of the plaintiffs' factory in these plots. Hence, the plaintiffs suit is liable to be dismissed.

During the pendency of the suit, plaintiff-3 Ram Nath Katyal died in June, 1998 and his legal heirs were not ready to contest the suit and therefore, they were not impleaded/substituted in his place. Plaintiff-1 Ratan Khann also died during the pendency of the appeal on 4.1.2012 and prior to his death, he had transferred his property in dispute to his grandson, appellant-1/1 Pushkar Khanna vide registered Will deed dated 30.9.2009, who was substituted subsequently at his place and necessary amendment/substitution in this regard were incorporated in the plaint.

On the basis of the pleadings of the parties, the trial court framed as many as five issues, which follows as under:

"(i) Whether there is 20 feet raasta over the disputed land and the plaintiffs has easementary right on it;

(ii) Whether the suit is undervalued;

(iii) Whether the court fees paid by the plaintiffs is sufficient;

(iv) Whether the land in dispute was acquired for the defendant and possession was delivered to him; and

(v) Whether the plaintiffs are entitled for relief in the facts and circumstances of the present case."

After settlement of issues, the trial court vide judgment and decree dated 9.11.2011 dismissed the suit with the finding that in the revenue record, entry of raasta has not been recorded over the land of plot no. 213 in the khasra and the factory is situated over 0.82 acres of khasra no. 213 and the plaintiffs have failed to prove the existence of 20 feet wide raasta on the disputed land. The trial court also recorded a finding that land in suit had been acquired and the possession of the same had been transferred to the defendant.

Being aggrieved by the judgment and decree passed by the trial court, the plaintiffs filed Civil Appeal No. 37 of 2012, which was dismissed on the basis of discussion made in the body of the judgment and decree passed by Additional Civil Judge (Senior Division)/Judge Small Causes Court in Original Suit No. 1626 of 1994 was set aside.

The lower appellate court framed points of determination as per provisions of Order 41 Rule 33 CPC, which read as under:

"(i) Whether there is existed any way of 20" wide in the Southern side of the plaintiff's properties?

(ii) Whether that Rasta extinguished when the land was acquired by the Moradabad Development Authority?

(iii) Whether the allottees of the plots are necessary parties?"

The points of determination nos. 1 and 2 have been decided in favour of plaintiffs holding therein that there exists 20 feet wide passage and the plaintiffs have got right of easement by way of grant from the original owner and the Moradabad Development Authority would get right over those area, which has been acquired by it and cannot get any right beyond the acquired area of 2.58 acre and the raasta over plot no. 213 cannot be extinguished even on acquisition of land by the Moradabad Development Authority.

The lower appellate court while considering point no.3 has recorded that suit of the plaintiff-appellants is bad for non-joinder of necessary parties and the allottees, who raised some construction over the strip of raasta were not made parties in the suit in view of the Order 1 Rule 9 CPC. The finding so recorded by lower appellate court with regard to points of determination nos. 1 and 2 in paragraph 15 and 16 are quoted as under:

"15. Thus, from foregoing discussions, it is clear that there is no reason to disbelieve the plaintiffs version that they had given the pathway in dispute by grant for their use as they had purchased the properties from the original owner and this right was given even much prior to the acquisition made by the Moradabad Development Authority. It is also apparently clear that the Moradabad Development Authority had acquired 2.58 acres of land out of total area 3.58 acres of the plot no. 213 and thus Moradabad Development Authority would get rights only over that much area and not beyond that. I fail to appreciate as to how the summary inquiries hold by the then Executive Authorities specially when they were in contradictions to the documents on record, have been made basis of the judgment by the learned Trial Court. Similarly, I also fail to appreciate that the entries in the revenue record would be decisive for the adjudication of the easementary rights between the parties. Learned Trial Court committed error of law on relying upon erroneous summary inquiries reports conducted by Executive Authorities and the entries of the revenue/government records particularly in case of deciding easementary right of parties and thereby holding that there was no way left for the plaintiffs.

16. Thus, the first point of determination is decided in favour of the plaintiff and I hold that there exists 20 feet wide way and the plaintiffs have got right of easement by way of grant of the original owner. "

The judgment and decree passed by the lower appellate court is impugned in the present appeal.

The appeal was admitted on 24.2.2014 on the following substantial questions of law:

"1. Whether the Lower Appellate Court was at all justified in dismissing the suit for non-joinder of alleged necessary parties, particularly when neither this objection was taken in the written statement nor was any issue framed in this regard nor was any evidence led to this effect and more particularly in view of the clear bar contained under Order 1 Rule 9 of C.P.C. which provides that a suit cannot be dismissed for non-joinder of any party ?

2. Whether in view of the Order 1 Rule 13 C.P.P., the defendant having not raised any objection either at or before the settlement of issues, the suit could be dismissed by the Appellate Court for non-joinder of any party, though defendant had waived his right, if any, to raise objections in this regard ?

3. Whether the Lower Appellate Court, having set aside the entire judgment, reasoning and findings recorded by the trial court, was at all justified in dismissing the appeal instead of allowing the same?"

I have heard Sri Kshitij Shailendra, learned counsel for the plaintiff-appellants and Sri Satish Chaturvedi, learned counsel for the respondent.

It was contended by learned counsel for the plaintiff-appellants that the appeal was admitted vide order dated 24.2.2014 and lower appellate court was not at all justified in dismissing the suit for non-joinder of necessary parties, particularly when no objection in this regard has been taken in the written statement nor any issue was framed in this regard and even no evidence was led to this effect and in view of the bar contained under Order 1 Rule 9 CPC, the suit cannot be dismissed for non-joinder of necessary parties.

It was further further contended by learned counsel for the plaintiff-appellants that defendant never raised any objection either in his written statement or before the settlement of issues and therefore, the defendant waived his right. It was lastly contended that lower appellate court set aside the judgment/findings recorded by the trial court but has not at all justified in dismissing the suit for non-joinder of parties.

On the other hand, learned counsel appearing on behalf of defendant-respondent submitted that specific finding has been recorded by the lower appellate court that some wall has been raised by the allottee over the strip of the raasta existed at plot no. 213 and therefore, any order passed in the suit will effect their right and therefore, they are the necessary parties and the suit has rightly been dismissed by the lower appellate court for non-joinder of necessary parties.

I have considered the rival submissions so raised by learned counsel for the parties and perused the record.

The only question for consideration before this Court as to whether the lower appellate court was justified in dismissing the suit of the plaintiff-appellants for non-joinder of necessary parties particularly when no objection was raised in this regard by the defendant in its written statement and in view of Order 1 Rule 9 CPC, which provides that suit cannot be dismissed for non-joinder of any party and further the defendant had waived their right, if they have not raised any objection with regard to joinder of necessary party in view of Order 1 Rule 13 CPC. For considering the said question, Order 1 Rule 9 CPC as well as Order 1 Rule 13 CPC are quoted as under:

"9. Misjoinder and non-joinder- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

[Provided that nothing in this rule shall apply to non-joinder of a necessary party.]

13. Objections as to non-joinder or misjoinder- All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived."

From bare perusal of the aforesaid provision, it is apparent that no suit shall be defeated by a reason of misjoinder or non-joinder of parties and the court may in every suit deal with the matter in controversy so far as regarding the right and interests of the parties actually before it and further in absence of all the objections on the ground of non-joinder and misjoinder of parties shall be taken at the earliest possible opportunity and in all cases were the issues are settled at or before such settlement unless the ground of objection subsequently arisen and any such objection is not so taken shall be deemed to have been waived.

The lower appellate court has specifically recorded a finding that it seems that the disputed wall had been raised by the allottees over the strip of the raasta. The lower appellate court had also recorded a finding that there is a 20 feet wide raasta existed over the land of plot no. 213, which is out of acquisition and over the said raasta, which is out of acquisition, no land can be allotted to any person and in fact, there is some encroachment made by the allottee of Moradabad Development Authority over the said raasta for which they cannot be said to be a necessary party.

Necessary party is a person, who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court.

The persons, who encroached the land of the raasta cannot be said to be necessary parties in the suit and therefore, the lower appellate court has committed illegality while dismissing the appeal of the plaintiff-appellants. Accordingly, the questions framed are answered in negative.

The lower appellate court is not at all justified in dismissing the suit on the ground of non-joinder of necessary parties primarily, neither any objection in this regard has been raised in the written statement nor any issue in this regard has been settled and the bar contained under Order 1 Rule 9 CPC does not apply and the suit cannot be dismissed for non-joinder of any party and further in view of Order 1 Rule 13 CPC, the defendant failed to raise any objection either on or before the settlement of issue and the suit cannot be dismissed for non-joinder of any party since, the defendant waived their right in this regard.

Accordingly, the appeal succeeds and is, allowed. The decree passed by the lower appellate court is set aside to the extent it dismissed the appeal and the suit filed by the plaintiff for grant of permanent injunction stands decreed, the prohibitory injunction is issued against the defendant or his agent not to encroach over the way (raasta) in suit situated in the south of the plaintiffs' property, not to put any hindrance in ingress and egress and not close the door opening on the way (raasta) of the suit and further mandatory injunction issued directing the defendant-Moradabad Development Authority to demolish the wall/encroachment, which was raised during the pendency of the suit.

Order Date :- 01.08.2019

Noman