Boya Sanjanna Appellant vs Manchga Marthamma
2021 Latest Caselaw 3151 AP

           THE HONOURABLE SRI JUSTICE D.RAMESH

             CIVIL REVISION PETITION No.26 of 2021

ORDER:-

1.    The present Civil Revision Petition is filed by the petitioner,

under article 227 of Constitution of India, aggrieved by the order

dated 11.11.2020 passed in I.A.No.396 of 2017 in L.R.A.1 of 2016 on

the file of Land Reforms Appellant Tribunal cum I Additional District

Judge, Kurnool.

2.    The petitioner is the appellant, he filed an appeal in L.R.A.1 of

2016 aggrieved by the order of Land Reforms Tribunal-cum-Revenue

Divisional Officer, Adoni dated 04.10.2016.     In the said appeal, the

respondents third parties have filed an I.A.No.396 of 2017 under

Order I Rule 10(2) read with rule 28 of CPC to implead them as

respondents 3 to 10 in the main appeal. Said I.A. is allowed by the

Land Reforms Appellant Tribunal cum I Additional District Judge,

Kurnool.

3. The main contention of the revision petitioner is that order of

the court below is contrary to the provisions of the A.P. Land Reforms

(Ceiling on Agricultural Holdings) Act, 1973 [for short "the Act, 1973"].

On facts, the respondents 1 to 7 herein are not in possession and

enjoyment of the subject property and they are nothing to do with the

land ceiling proceedings. The land ceiling proceedings are between

the petitioner herein and the respondents 9 to 11. The respondents 9

to 11 are the original claimants even before the declaration

proceedings, the subject property is alienated to the petitioner herein

and the petitioner is in continuous possession of the subject property.

Without considering the objection filed by the petitioner, the court

below has passed the order erroneously to implead the proposed

respondents as parties to the L.R.A. No.1 of 2016. The court below

has failed to appreciate the order passed in W.P.No.2383 of 2004,

W.A.No.561 of 2015, the order dated 04.10.2016 passed by the Land

Reforms Tribunal, Adoni, so also the prayer in W.P.No.1516 of 2013

filed by the respondents 1 to 7 herein, praying for grant of possession,

which was subsequently withdrawn by them unconditionally. The

above said orders and proceedings categorically established that the

respondents 1 to 7 are not in possession of subject land and no

possession was delivered to them under the alleged patttas, hence

they are not the interested parties as per Rule 16(7) of Andhra

Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974

[for short "the Rules, 1974"].

4. Learned counsel for the petitioner further contended that until

and unless the parties are proved that they have substantial interest

in the property, they cannot be impleaded as parties to the substantial

proceedings. Hence, the order impugned is contrary to the provisions

of the Act, 1973 and the Rules made there under.

5. Learned counsel appearing on behalf of the petitioner, to

support his contentions has mainly relied on the Order I Rule 10 of

Civil Procedure Code [for short 'CPC'], which is extracted below :-

Order I Rule 10 of CPC :

"10. Suit in name of wrong plaintiff. - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination

of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(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 person 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. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. ...."

6. According to the above said provision, it is clear that the court

may, at any stage of proceedings, order that the name of any party,

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. But in the instant case,

the petitioner is the purchaser from the declarants much prior to the

declaration filed by the respondents 9 to 11, by way of possessor

agreement of sale, by virtue of which, the petitioners are in possession

of the property. To declare the land ceiling proceedings in favour of

the petitioners, the respondents 1 to 7 are not at all relevant to

implead them as necessary parties to settle the subject matter, for

effective adjudication of the proceedings before the court of Land

Reforms Appellate Tribunal. Even according to the respondents, their

claim itself is that they are the only beneficiaries to the subsequent

proceedings. Hence, they are not necessary parties to adjudicate the

land ceiling proceedings, which are to be decided before declaration.

7. Learned counsel for the petitioner further submitted that though

the respondents 1 to 7 have filed the writ petition No.1516 of 2013

before the High Court, with a prayer to declare the action of the

Tahsildhar in considering the representation of the

petitioners/respondents 1 to 7 herein, dated 03.12.2012 as illegal and

arbitrary and consequential direction to the respondents to give

physical possession and mutate the names of the petitioners in

respect of the subject land. Subsequently, the said writ petition was

withdrawn unconditionally. On perusal of the prayer in the said writ

petition, it fairly discloses that the writ petitioners/respondents 1 to 7

herein were never in possession of the subject property, when they

have failed to prove their possession of the subject property, as such

they are not the necessary parties to adjudicate the appeal, as per the

rule 16(7) of the Rules, 1974 and under the Act, 1973

8. On the other hand, learned counsel appearing for the

respondents 1 to 7 contended that the respondents 1 to 7 are the

assignees, after filing the declaration by respondents 9 to 11 and

surrendered excess land to the government and the government has

considered their application as land less poor persons and the subject

land was assigned in favour of the respondents 1 to 7. In view of the

same, they are the necessary parties to the proceedings before the

appellate tribunal, hence, they have filed an application for impleading

them as parties. He further submitted that in fact, after assignment,

with a misconception, earlier they have filed a writ petition in 2013, in

spite of granting pattas, by mutating their names in the revenue

records, they have also sought for possession, hence to rectify that

mistake only they have withdrawn the said petition. Susbequently,

their names were mutated in the revenue records and after granting

pattas in favour of the petitioners/respondents 1 to 7, they are in

continuous possession of the subject property, therefore, if the

proceedings are decided without hearing the respondents 1 to 7

herein, their rights will be affected. Hence, they have filed the petition

as per Rule 16 (7) of the Rules, 1974.

9. For better appreciation of the subject matter, Rule 16 (7) of

Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings)

Rules, 1974, extracted as follows:-

"16. Nature of proceedings before the Tribunal: -

(7) Any person, other than a party who satisfies the Revenue Divisional Officer, the District Collector, Tribunal or the Appellate Tribunal that he has substantial interest in the matter, may at any time during the pendency of the proceedings, be permitted to appear and be heard and to adduce evidence and cross-examine witnesses."

10. Learned counsel appearing for the respondents further

contended that in fact the proceedings of the Land Reforms Tribunal,

Adoni dated 04.10.2016 has observed that the petitioner herein and

his brother Yerranna have not placed any reliable document to prove

that the land in Survey No.88/1 was purchased by their father

Chinna Hanumanna, further the petitioner herein has pleaded

objection that Survey No.88/1 was purchased for a sum of

Rs.28,000/- under an agreement of sale and the same was not placed

before the Tribunal for consideration, and after going through the

defence of Boya Sanjanna/petitioner herein, it clearly disproves their

case that the agreement of sale has not seen the light of the day and

that said Boya Sanjanna/petitioner herein and his brother failed to

prove how they got the land in survey No.88/1 to an extent of Ac.5-90

cents was belongs to late Rama Linga Reddy.

11. In view of the above observation, learned counsel for the

respondents 1 to 7 urged that the petitioner herein has no title over

the property and in fact the respondents 1 to 7 are in possession of

the subject property and the revenue records are also in their favour.

In view of the same, they are the necessary parties, especially as per

Rule 16(7) of the Rules, 1974, wherein it is clearly contemplated that

any person, other than a party, who satisfies the Revenue Divisional

Officer, the District Collector, Tribunal or the Appellant Tribunal that

he has substantial interest in the matter, may at any time during the

pendency of the proceedings, be permitted to appear and be heard

and to adduce evidence. In view of the above specific provision, the

respondents 1 to 7 are the necessary and interested parties to the

proceedings between the Land Reforms Appellant Tribunal cum I

Additional District Judge, Kurnool.

12. Learned counsel for the petitioner has taken serious objections

with regard to the reliance made by the learned counsel for the

respondents 1 to 7 that the observations made in Land Reforms

Tribunal, Adoni in the order dated 04.10.2016. As against the said

order an appeal is filed, which is pending for adjudication, hence, the

respondents 1 to 7 are not entitled to rely on the observations made

by Land Reforms Tribunal, Adoni.

13. Learned counsel for the petitioner has relied on the decisions

i.e., Mumbai International Airport Pvt. Ltd. Vs. Regency Convention

Centre and Hotels Pvt. Ltd. And Ors1., Kasthuri Vs. Iyyamperumal

and Ors.2 and E.Viswanatha Rao Vs.A.O. Spl. Tahsildar, Chittoor3.

14. In the case of Mumbai International Airport Pvt. Ltd. Vs.

Regency Convention Centre, the Hon'ble Supreme Court held at para 8

that-

"The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties.....

(2).... A `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. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."

15. In E.Viswanatha Rao Vs. A.O. Spl. Tahsildar, Chittoor, this

High Court held at para 34 that -

"34. Even the Authorized Officer did not place on record the verification record on receipt of declarations where the details of persons in possession can be found. But, in the present case, no such procedure

AIR 2010 SC 3109

AIR 2005 SC 2813

2020(1) ALT 261

has been complied admittedly and mere alleged surrender of the distribution of land by assigning to various persons is inconsequential when the order declaring the original declarant is surplus holder without notice to the persons likely to be affected on account of such order, is contrary to the mandate under Section 7(7) of the Land Reforms Act. Hence, I find that non-compliance of Section 7(7) of the Land Reforms Act has vitiated the entire proceedings."

16. On reading of the above decision, in fact the issue involved in

E.Viswanatha Rao's case is that of impleading the third parties i.e

purchasers, as per section 7(7) of the Land Reforms Act.

17. On facts, in E.Viswanatha Rao's case, the third parties have

purchased the subject property and registered in favour of the parties

on 01.02.1971 and the act came into force on 20.04.1971, thereby the

primary tribunal and the appellate tribunals without hearing the

purchasers have decided the proceedings. Questioning the said

proceedings, the petitioners therein/affected parties have filed the

revision petition. Taking said facts into consideration, the issue is

framed, 'Whether determination of standard holding of original

declarant/E.V. Vishwanatha Rao without considering the alienations

made by the partners of the alleged real estate firm while accepting the

declarations of the other partners, without issuing any notice to the

purchasers is illegal and invalid and whether such order be sustained

under law?"

18. To answer the said issue as held that the Primary Tribunal after

lapse of long period, but, this Court while sitting in revision cannot

undertake the exercise of issuing notice under Section 7(7) of the

Land Reforms Act to the persons likely to be affected and to conduct

enquiry as to who is in possession even at the stage of surrender

under Section 10 of the Land Reforms Act. Therefore, I find that it is a

fit case to remand the matter to the Primary Tribunal, and further

held that the notice(s) must be issued strictly in accordance with

Section 7(7) of the Land Reforms Act and Rules 16(8) & (9) of the Land

Reforms Rules to the legal representatives of original declarant/E.V.

Vishwanatha Rao and also to the petitioners herein (affected parties).

Primary Tribunal is specifically directed to afford an opportunity to

the persons likely to be affected on account of the orders to be passed

by the Tribunal.

19. In view of the observations of the High Court in the said

judgments, it is made clear that any person who is likely to be effected

by virtue of the proceedings pending before the tribunal or the

appellate tribunal, according to Rule 16 (7) of the Rules, 1974, the

said person has to be included and notice has to be served on them.

In the instant case, no doubt that the petitioner's version is that he is

the purchaser and purchased the property through possessory

agreement of sale, prior to the declaration made by the respondents 9

to 11. It is also not in dispute that subsequent to the declaration, the

subject land has surrendered to the government and the government

has assigned the same in favour of the respondents 1 to 7. Hence, it

is needless to say that the respondents 1 to 7 are the necessary

parties, as per Rule 16 (7) of Andhra Pradesh Land Reforms (Ceiling

on Agricultural Holdings) Rules, 1974.

20. Considering the ratio decided in the above judgment and also

relevant facts, the order of the court below is in accordance with rules.

Accordingly, the respondents 1 to 7 are necessary parties to the L.R.A.

proceedings.

21. In view of the above said reasons, I see no merits in the above

revision. Accordingly, the Civil Revision Petition is dismissed. There

shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

_______________________ JUSTICE D.RAMESH

Date: 24.08.2021 Pnr

THE HONOURABLE SRI JUSTICE D.RAMESH

CIVIL REVISION PETITION No.26 of 2021

Dated 24 .08.2021

Pnr