Sudhakar Rao Getha And Another vs Collector,Varanasi And 23 Others
2019 Latest Caselaw 4129 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - C No. - 20544 of 2018
 

 
Petitioner :- Sudhakar Rao Getha And Another
 
Respondent :- Collector,Varanasi And 23 Others
 
Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh
 
Counsel for Respondent :- C.S.C.,Indra Mani Tripathi,Vikas Tiwari
 

 
Hon'ble Siddhartha Varma,J.

The respondents no. 4 and 5 filed a suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, being Suit No. 358 of 2012 (presently number as Suit No. 50/68/78/10 of 2016) and prayed for a declaration that the plaintiffs therein be declared as owners of the property in question. The Subject matter of the suit was plot no. 837/2 area 0.127 hectare Village Sikraul, Pargana Shivpur, Tehsil and District Varanasi.

Since the petitioners also claimed to be in physical possession over the suit property as owners, they filed an application for getting themselves impleaded in the Suit. However, when the impleadment application was rejected, they filed a Revision which again was rejected. Thereafter, the petitioners filed a writ petition being Writ Petition No. 47159 of 2016 and challenged the order by which their impleadment application was rejected. This Court on 30.9.2016 passed an order to the effect that the petitioners, if they had any right in the suit property, could file their own independent suit for a declaration and, thereafter, could get that suit connected with the suit instituted by the respondents no. 4 and 5. The order dated 30.9.2016 passed in Writ Petition No. 47159 of 2016 is being reproduced here as under:-

"Heard Sri S.N.Tripathi, learned counsel for the petitioner and Sri Rishab Singh, counsel for the caveator, respondent no.6 as also the learned Standing Counsel for the State-respondents.

The writ petition has been filed seeking a writ of certiorari for quashing the order dated 29.04.2015 rejecting an application, filed by the petitioner for seeking impleadment as a defendant in a suit, under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, filed by the respondent no.6 as also the order dated 08.09.2016, affirming the order, rejecting this impleadment application.

The brief facts relevant to the controversy in the writ petition are that the respondent no.5, (since deceased) and others instituted a suit, under Section 229-B of the Act, for declaration. The declaration was sought, with regard to plot no.837/2.

It is admitted to learned counsel for the parties that neither the plaintiffs nor the petitioners are recorded over the land in dispute. The plaintiffs and the petitioners are defendants of a common ancestor.

It is contended that plot no.837/2 was the joint holding of the parties. However, the plot appears to have been sub divided into 837/1 and 837/2. Both the parties are said to be recorded over plot no.837/1.

The contention of the learned counsel for the petitioner is that this sub division is without any basis and on account of manipulation made by the plaintiffs and in fact no partition has taken place between the parties.

The contention of the plaintiffs on the contrary is that a partition has taken place long back.

The impleadment application was filed on the ground that since plot no.837/2 was a joint holding, the petitioner is also liable to be impleaded as defendant, in the suit.

It is also sought to be contended that the finding that a partition having been effected between the parties, is incorrect.

However, in the facts and circumstances of the instant case, I do not consider it necessary to go into the various contentions of the parties. Suffice it to state that the dispute in the suit filed by the plaintiffs respondents is with regard to plot no.837/2. It is not in issue that neither the plaintiffs nor the petitioners are recorded over this land. The case of the petitioner is that he is a co-sharer in this plot and therefore, is entitled to be impleaded in the suit.

In my considered opinion, the controversy that is being raised by means of a writ petition, is an unnecessary controversy. The petitioner, admittedly, not being recorded over the plot in question of which he claims to be a co-sharer, is necessarily required to file a suit for declaration in his favour. By getting himself impleaded in this suit for declaration, filed by the plaintiff respondents as a defendant, he cannot get this declaration.

Under the circumstances, therefore, in my considered opinion, no effective relief can be granted to the petitioner, even if his impleadment application is allowed.

Interest of justice would stand served in case the petitioner also files a suit for declaration regarding the plot in question and thereafter applies to get both the suits connected, which would have to be ordered, as the subject matter of both the suits, would be identical.

In view of the above discussion, this Court finds that the impleadment of the petitioner in the suit filed by the plaintiff respondents would be exercised in futility. I therefore, do not consider it appropriate to enter into the controversy as to whether, the impleadment application has rightly been rejected or not.

The writ petition is therefore, liable to be dismissed, granting liberty to the petitioner to file a suit for declaration regarding plot no. 837/2 and to get it connected with the pending suit, instituted by the plaintiff respondents.

Only after the petitioner institutes a suit for declaration in his favour can any effective relief be granted to him if he is able to establish his claim.

The writ petition is accordingly, dismissed. "

The petitioners, thereafter, filed an independent suit on 3.10.2016 for the declaration of their rights. This suit was numbered as Suit No. 316 of 2016. Thereafter, the petitioners also filed an application on 5.10.2016 to get the suit filed by the petitioners transferred so that it could be heard alongwith the suit filed by the respondents no. 4 and 5. The Sub Divisional Officer transferred the petitioners' suit being Suit No. 316 of 2016 to the Court of the Additional City Magistrate - III, Varanasi, where Suit No. 358 of 2012 was being heard. The Additional City Magistrate - III, Varanasi, instead of consolidating the two cases, directed for the listing of the petitioners' case on the same date on which date Case No. 358 of 2012 was listed. The petitioners, therefore, on 9.11.2017, moved an application for the consolidation of the two cases. Even though, no order was passed on the application for the consolidating the two cases, they were being heard on the same dates. When another Additional City Magistrate - III, Varanasi, by the name of Jagdamba Prasad Singh took charge, he started giving different dates to the cases. The petitioners filed a Transfer Application on 13/14.11.2017 to transfer the Suit No. 316 of 2016 and Suit No. 358 of 2012 to some other Court which had the jurisdiction to hear the matter. On 15.11.2017, the petitioners also moved an application in Suit No. 358 of 2012 bringing on record the proceeding which they had undertaken for the transfer etc. However, despite the application dated 15.11.2017 by which petitioners had brought to the notice of the Additional City Magistrate - III, Varanasi, about the Transfer Application which they had filed the Additional City Magistrate - III, Varanasi, on 30.11.2017, directed the plaintiffs of Suit No. 358 of 2012 to file their written arguments and, thereafter, fixed 13.12.2017 for final judgement. On 30.11.2017 itself in the petitioners' case, however, the Additional City Magistrate - III fixed 20.12.2017 as a general date stating that the Presiding Officer was on leave on 30.11.2017. Thereafter, on 12.2.2018 the Suit No. 358 of 2012 was decreed by the respondent no. 2, whereas the Suit which was filed by the petitioner was dismissed on 6.3.2018. Against the judgement and decree dated 6.3.2018, the petitioners filed an appeal being Appeal No. 279 of 2018. However, as the petitioners were not a party in Suit No. 358 of 2012 they could not file a First Appeal and, therefore, filed the instant writ petition.

Learned counsel for the petitioners has submitted that malice was writ large. When the two suits were being heard together then they should not have been decided separately, especially, when there was a Transfer Application filed before the Collector and a Contempt Application before the High Court.

Learned counsel for the petitioners also made his submission with regard to the merit of the order dated 12.2.2018 and submitted that the order be set aside. Upon a question being put to the petitioners' counsel as to why the petitioners had not filed a First Appeal against the judgement and order/decree dated 12.2.2018 passed by the respondent no. 2 then the learned counsel for the petitioners submitted that as per Section 207 of the U.P. Revenue Code, 2006, only a party to the suit could file a First Appeal. In this regard, since the learned counsel for the petitioner read out Section 207 of the U.P. Revenue Code, 2006, the same is being reproduced here as under:-

207. First Appeal:- (1) Any party aggrieved by a final order or decree passed in any suit, application or proceeding specified in [column 2] of the Third Schedule, may prefer a first appeal to the court or officer specified against it in [column 4], where such order or decree was passed by a court or officer specified against it in [column 3] thereof.

(2) A first appeal shall also lie against an order of the nature specified -

(a) in section 47 of the Code of Civil Procedure, 1908; or

(b) in section 104 of the said Code; or

(c) in order XLIII, Rule 1 of the First Schedule to the said Code.

(3) The period of limitation for filing a first appeal under this section shall be thirty days from the date of the order or decree appealed against.

This, he said was a provision, which was quite different from Section 331 (3) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, which had provided that an appeal lay from just any decree or order which affected a person.

The learned Standing Counsel and the counsel for the respondents made their submissions as to whether an Appeal would lie or not and they submitted that just as in the Consolidation of Holdings Act an Appeal under Section 11 of the Consolidation of Holdings Act only contemplated the filing of an Appeal by a party to the proceeding but by interpretation of the Section anybody aggrieved had been given the libety to file the appeal, the petitioners may also file their objection against the decree. In this regard they relied upon 2005 (98) RD 520 (Smt. Laldei vs. Deputy Director of Consolidation, Varanasi), 1986 AWC 323 (Brahm Deo vs. DDC), 1978 AWC 58 (Rampal Singh vs. DDC Meerut), 1980 AWC 683 (Dwarika Nath vs. DDC U.P. Lucknow) which had held that any person aggrieved could file an Appeal under Section 11 of the Consolidation of Holdings Act if by the order of the Consolidation Officer his/her interest was being adversely affected.

Learned counsel further submitted that in 1971 SC 374 (Smt. Jatan Kanwar Golcha vs. M/s. Golcha Properties Private Ltd.) also it was held that a person who was not a party to the suit could always prefer an Appeal with the leave of the Appellate Court and that the Court should grant the leave if the person who was filing the Appeal was being prejudiced by the judgement/decree of the Court below. Since the learned counsel for the respondent relied upon a portion of the judgement, the same is being reproduced here as :-

"It would be travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgement."

Having considered the rival submissions made by the petitioners and the counsel for the respondents with regard to the fact as to whether an appeal would lie or not under Section 207 of the Code, I hold that when the legislature contemplates the filing of an Appeal by a party to the suit, then, in fact, it meant that an appeal could be filed even by a person who was not a party to the suit if he could establish that by the judgement his interest was being prejudiced.

Since, I have held that the petitioners, if they were aggrieved by the judgement dated 12.2.2018 could file an appeal, they may now file an appeal within a period of one month from the passing of this order and if they so do then the Appeal shall be entertained without going into the question of limitation and the Appeal which they have filed against the judgement and order/decree dated 6.3.2018 shall be consolidated with the Appeal they would now file. Both the appeals would be heard together and decided within a period of four months from the date of presentations of a certified copy of this order. For a period of one month parties shall maintain status quo as of today.

The writ petition is disposed of with the above observations.

Order Date :- 6.5.2019

praveen.