Sh.Mohinder Singh & Ors. vs Govt. Of Nct Of Delhi & Another
2009 Latest Caselaw 287 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS(OS) No.677/2006

%                     Date of Decision: 28.01.2009

Sh.Mohinder Singh & Ors.                             .... Plaintiffs
                    Through Ms.Amita Sehgal Mathur, Advocate

                                Versus

Govt. of NCT of Delhi & Another                     .... Defendants
                      Through Mr.Mahendra Rana, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be                 YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                   NO
3.    Whether the judgment should be reported in               NO
      the Digest?

ANIL KUMAR, J.

+ IA No.14070/2006

1. This is an application by Ms.Jyoti Rattan daughter of late Shri

Daljit Kumar; Mr.Ram Singh son of Shri Nathu; Mr.Karan Singh son of

Mr.Nyadar Singh and Mr.Diwan Singh Rana son of Shri H.L. Rana to be

impleaded as a party in the suit for declaration and possession filed by

the plaintiffs.

2. The plaintiffs have sought a declaration that they are bhoomidars

in possession of plot No.415 within the Lal Dora of village Bijwasan,

New Delhi, since 1976-77 duly declared by the Revenue Assistant, Shri

K.R. Sarangal by his order dated 26th February, 1979. The plaintiff has

also sought cancellation of the order dated 19th January, 2006 passed

by Shri B.B. Saxena, Financial Commissioner, Delhi in Case

No.263/04-CA in respect of plot No.415 in Gaon Sabha, Bijwasan on

the ground that it is erroneous, void, non-est and without jurisdiction

and that the plaintiffs have continued to enjoy the rights in the property

as per the provisions of Delhi Land Reforms Act, 1954.

3. The applicants have contended that the proceedings for recording

of their names in the Revenue Record in respect of Khasra No.415/4 (4

bighas 2 biswas) is also pending and the applicants have filed a copy of

registered karyewahi dated 6th February, 2006. According to the

applicants, Shri Mir Singh son of Shri Ram Nath, was the owner of 122

bighas 7 biswas in khasra No.415 of land situated in Village Bijwasan,

New Delhi. He had sold 122 bighas and 7 biswas of land on 31st

October, 1973 to Mohinder Singh and other plaintiffs. It is further

alleged that Shri Mohinder Singh and others then sold the entire land

holding of 122 bighas 7 biswas to various purchasers in Village

Bijwasan, New Delhi, and consequently their entire khata 297 became

Nil. According to the applicant, during the consolidation proceedings

neither Shri Mir Singh son of Shri Ram Nath nor the transferees of Shri

Mir Singh, Shri Mohinder Singh and other plaintiffs made any demand

of allotment of plot as the land had already been sold out by them.

Consequently, it is contended that by order dated 13th November, 1984

the Financial Commissioner in Case No.7/84/CA withdrew the legal

allotment of plot No.415 in favour of plaintiffs.

4. According to the applicants against the order of 13th November,

1984 a writ petition being W.P. No.2742/1984 was filed by the plaintiffs

seeking quashing of order dated 13th November, 1984 which was

disposed of by order dated 6th August, 2004. Pursuant to disposal of

the writ petition of the plaintiff being Writ Petition No.2742/1984,

objections had been filed before the Financial Commissioner.

5. The Financial Commissioner by order dated 19th January, 2006

again rejected the objections of the plaintiff holding that the allotment

of 6 bighas and 6 biswas of land in plot No.415, Village Bijwasan, to the

plaintiffs suffer from illegality.

6. The applicants have contended that thereafter the plaintiffs filed

yet another writ petition being W.P.(C.) No.168-84/2006 which was also

dismissed by an order dated 8th February, 2006. An appeal has been

filed by the plaintiffs against the order dated 8th February, 2006 which

is pending adjudication where an interim order was passed that the

plaintiffs shall not be dispossessed from the suit property unless they

have already been dispossessed.

7. According to the applicants, pursuant to order dated 13th

November, 1984 passed by the Financial Commissioner, the same plot

measuring 6 bighas and 6 biswas in Khasra No.415 vested in Gaon

Sabha and out of the said land the plot measuring 4 bighas and 2

biswhas in Khasra No.415/4 has been allotted in favour of Smt.Jyoti

Sikka and Diwan Singh Rana and one bigha has been allotted in plot

No.415/1 in favour of Ram Singh and others. According to applicants

though their application for the impleadment as a party in the writ

petition No.2742/1984 was dismissed by order dated 8th January,

2004, however, their another application for impleading them as a party

in the subsequent writ petition filed by the petitioner being WPC

No.15070/2006 was allowed by order dated 9th July, 2008. The

applicants have contended that they are necessary parties as their non-

impleadment will result in multiplicity of proceedings and there will not

be a finality to the reliefs claimed by the plaintiffs in respect of the same

land which have been allotted to them which is in their possession and

for which the karyewahi for the mutation is also pending.

8. The application is contested by the plaintiffs/non-applicants who

have mainly contended that the applicants have no right, locus standi

to file the present application for the impleadment because the plaintiffs

are seeking declaration that they are bhoomidars and in possession of

plot No.415 since 1976-77 declared by Revenue Assistant, Shri K.R.

Sarangal, by his order dated 26th February, 1979 and the subsequent

order passed in 1984 is illegal and void.

9. The plaintiffs/non applicants have contended that the applicants

were not parties in the proceedings before the Revenue Assistant and,

therefore, they have no right to intervene in the present suit. The

application for impleadment by the applicants is also opposed on the

ground that it is barred by the principle of res judicata as the

application of the applicants for impleadment in an earlier writ petition

filed by the petitioners had been dismissed. According to the plaintiffs,

the applicants had filed a similar application under Order I Rule 10 of

the Code of Civil Procedure for impleadment in CWP No.2742/1984.

The said application was dismissed by the Court by order dated 8th

January, 2004. The plea of the plaintiff/non applicants is that no

liberty was sought by the applicants nor any liberty was given to

applicants to again agitate the same issue of impleadment on the same

set of facts and grounds. It is asserted by non-applicants/plaintiffs that

the plea of the applicants for impleadment had attained finality and,

therefore, the applicants are barred in law from re-agitating and raising

the same issue again. The application for impleadment is also opposed

on the ground that no transfer in favor of applicants could have taken

place in 2006 since the order of vesting of said khasra No.415 had

already been quashed by the order dated 6th August, 2004. It is also

pleaded that pursuant to the order dated 6th August, 2004, the

plaintiffs had approached the Financial Commissioner in terms of the

directions of the court and the Financial Commissioner gave his

decision which was also challenged in a writ petition before this Hon'ble

Court.

10. According to the non-applicants/plaintiffs by order dated 6th

August, 2004, the order of the Financial Commissioner dated 13th

November, 1984 to the extent that it directed vesting of Plot No.415

measuring 4 bighas and 6 biswas in gaon sabha has attained finality

and, therefore, the land was not with gaon sabha in 2004 and same

could not be transferred by gaon sabha to the applicants or any other

person.

11. The application is also opposed on the ground that the applicants

have no right over khasra No.415 as the dispute of plaintiffs is with

gaon sabha and the right of the applicants in the said land flow from

the gaon sabha. Since there is no privity between the plaintiffs and the

applicants, as has been alleged by the plaintiffs/non-applicants, they

are not the necessary parties.

12 I have heard the learned counsel for the parties in detail and have

also perused the copy of the reply which was given in the court as the

reply dated 27th January, 2009 which was filed on 28th January, 2009

by diary No.16604 was not on record.

13. In order to ascertain whether the applicants are necessary parties

or not, what is to be ascertained is whether non-impleadment of the

applicants will lead to multiplicity of proceedings and/or conflicting

orders being passed by this Court. No doubt that the plaintiffs are

agitating their rights in respect of khasra No.415 which has been

allotted by the gaon sabha to the applicants. Nevertheless it cannot be

disputed that the disputes are in respect of the same land being khasra

No.415. An application under Order I Rule 10 filed by the applicants in

the writ petition, CWP No.2742 of 1984, was dismissed on 8th January,

2004. The said writ petition was also disposed of by this Court by order

dated 6th August, 2004. Pursuant to the disposal of the said writ

petition, the Financial Commissioner reconsidered the matter and gave

his decision which has been challenged by the plaintiffs in a writ

petition being W.P.C. No.15070 of 2006 titled Mohinder Singh and

Others v. Tehsildar, Bijwasan and another. In the subsequent writ

petition which is filed by the plaintiffs, an application was filed by the

applicants, namely, Shri Jyoti Rattan, Shri Ram Singh, Shri Karan

Singh and Shri Diwan Singh Rana being C.M.No.9466 of 2007 which

was allowed by order dated 9th July, 2008.

14. The Financial Commissioner by order dated 19th January, 2006

maintained his earlier order of withdrawal of allotment. The order

passed by the Financial Commissioner has again been challenged by

the plaintiffs in the High Court. However, their writ petition was

dismissed on 8th February, 2006 and, therefore, plaintiffs have

preferred a Letters Patent Appeal which is pending consideration before

a Division Bench of this Court and dispossession of the plaintiffs has

been stayed pursuant to order dated 14th March, 2006.

15. In the writ petition being W.P.(C.) No.15070 of 2006, the relief

sought was that the actual physical possession of the plaintiffs should

be recorded by the Tehsildar, Bijwasan. Considering the nature of

dispute and contesting claims of the plaintiffs and the applicants, the

applicants were impleaded as respondents to the said writ petition. The

order dated 9th July, 2008 passed in W.P.(C.) No.15070 of 2006 is as

under:

"CM No. 9466/2007

By this application the applicants, namely, Shri Jyoti Rattan, Shri Ram Singh, Shri Karan Singh and Shri Diwan Singh Rana seek impleadment and right to intervene this petition. The case of the applicants is that land falling in Khasra No.415 was initially wrongly allotted to the petitioners on 6.8.2004 and that allotment was subsequently withdrawn by the Financial Commissioner on 13.11.2004 After the same was withdrawn it was allotted to the applicants.

The petitioners were aggrieved by the withdrawal of the allotment and preferred a writ petition before this Court. That petition was allowed and the matter was remanded back for determination by the Financial Commissioner.

The Financial Commissioner passed a fresh order on 19.1.2006 maintaining his earlier order of withdrawal. This order was again carried to the High Court in writ petition which was dismissed on 8.2.2006. The petitioner preferred a latent patent appeal which is still pending consideration before a Division Bench of this Court. On 14.3.2006, the Division Bench has stayed dispossession of the petitioner. The result is that the petitioner as continued to remain in

actual physical possession throughout and even now continues to be in possession under the orders of the Court.

The relief sought in the writ petition is that the actual physical possession of the petitioners should be recorded by respondent No.1 in the revenue records. Considering the nature of dispute and the contesting claims of the petitioners on the one hand and the applicants on the other hand, in my view the applicants deserve to be impleaded as respondents so that they could also be heard at the time of disposal of this petition. Accordingly the application is allowed. The applicants are impleaded as party respondent.

The petitioners are directed to file amended writ petition along with the amended memo of parties within four weeks.

WP(C) No.15070/2006

Learned counsel for the petitioner relies on 2000(6) JT 643.

Rule.

Notice of Rule is accepted by Ms. Ansuya Salwan and Mr.Mahidner Singh Rana for the respondents. Let counter affidavit be filed within four weeks. Rejoinder, if any, be filed within four weeks thereafter.

Considering the fact that only a narrow issue arises for consideration the matter be listed for final disposal in first ten matters in that category of Regular Matters."

16. The plaintiffs have filed the present suit seeking a declaration

that they are the bhoomidars in possession of plot No.415 within the lal

dora of Village Bijwasan, New Delhi, since 19769-77. Though the writ

petition filed by the petitioner against the order of the Financial

Commissioner, dated 19th January, 2006, maintaining his earlier order

of withdrawal of allotment in favor of petitioners was dismissed on 8th

February, 2006, however, the petitioner thereafter has filed the present

suit on 20th April, 2006. The legality of the order dated 19th January,

2006 is now pending adjudication before a Division Bench in a Letters

Patent Appeal filed by the plaintiffs against the dismissal of their writ

petition by order dated 8th February, 2006 and the order of Financial

Commissioner dated 19th January, 2006 is also challenged by the

plaintiffs in the present suit.

17. The plaintiffs are dominus litis and they are bound to sue every

possible adverse claimant, in the same suit, whom they wish to proceed

against under Order 1 Rule 3, to avoid multiplicity of legal proceedings

and needless expenses. All persons against whom the right to relief is

alleged to exist should be joined as defendants. However, Rule 10 also

specifically provides that it is open to the Court to add at any stage of

the suit a necessary party or a person whose presence before the Court

may be necessary in order to enable the Court to effectually and

completely adjudicate upon and settle all the questions involved in the

suit. The Court may at any stage of the suit direct addition of parties. A

party can be joined as defendant even though the plaintiff does not

think that he has any cause of action against him. Sub-rule (2) of Rule

10 gives a wide discretion to the Court to meet every case of defect of

parties and is not affected by the inaction of the plaintiff to bring the

necessary parties on record. The question of impleadment of a party has

to be decided on the touchstone of Order 1 Rule 10 which provides that

only a necessary or a proper party may be added. A necessary party is

one without whom no order can be made effectively. A proper party is

one in whose absence an effective order can be made but whose

presence is necessary for a complete and final decision on the question

involved in the proceeding.

18. The addition of parties is generally not a question of initial

jurisdiction of the Court but of a judicial discretion which has to be

exercised in view of all the facts and circumstances of a particular case.

In order to ascertain whether a person is a necessary party or not what

is to be seen is whether in the absence of such a person, there is a

possibility of conflicting decrees being passed by the Court. The only

reason which makes it necessary to make a person a party to an action

is that he should be bound by the result of the action and the question

to be settled. The question to be settled must be a question in the action

which cannot be effectually and completely settled unless he is a party.

A line has been drawn on a wider construction of the rule between the

direct interest or the legal interest and commercial interest. It is,

therefore, necessary that the person must be directly or legally

interested in the action in answer, i.e., he can say that the litigation

may lead to a result which will affect him legally that is by curtailing his

legal rights

19. In the subsequent writ petition, W.P.(C.) No.15070 of 2006, the

applicants were impleaded as parties by order dated 9th July, 2008. In

the circumstances, the plea of the plaintiffs/non-applicants that the

application by the applicants is barred by res judicata is not sustainable

and on that ground it cannot be disallowed. Though the dispute of the

plaintiffs is with Gaon Sabha but the land which is the subject matter

of the dispute had also been allotted to the applicants. In the

circumstances, it cannot be inferred that the applicants have no such

interest which will be affected by the adjudication of the claim of the

plaintiffs in the suit. If the applicants are impleaded as party they will

be bound by the decision in the suit for the same land for which the

plaintiffs and applicants are claiming rights.

20. The learned counsel for the applicants have also relied on Razia

Begum v. Sahebzadi Anwar Begum and others, AIR 1985 SC 886;

Repaka Bhyravamurthy and another v. Muppidi Venkataraju, AIR 2002

Andhra Pradesh 77; Amit Kumar Shaw and another v. Farida Khatoon

and another, AIR 2005 SC 2209 and Dhanlakshmi and Others v. P.

Mohan and others, (2007) 10 SCC 719, to contend that the applicants

are necessary parties and they entitled to be impleaded as parties to the

present suit.

21. In Razia Begum (supra), the Supreme Court had held that the

question of addition of parties under Rule 10 of Order I has to be

decided in view of facts and circumstances of a particular case. It was

held that in a suit relating to property in order that a person may be

added as a party, he should have a direct interest as distinct from

commercial interest in the subject matter of litigation. It was, however,

clarified that where the subject matter of a litigation is a declaration as

regards status or legal character, the rule of present or direct interest

may be relaxed in suitable cases where the court is of the opinion that

by addition of that party, it would be in a better position to effectively

and completely adjudicate upon the controversy. In Repaka

Bhyravamurthy (supra), the Full Bench was dealing with a case of

enhancement of compensation. It was held that in a reference under

Section 30 not only the question of title but also the status of the

parties is involved and Order I Rule 10 confers a wide power upon the

court to implead a party whose interests are involved in any manner.

The Full Bench had held that a person may not be entitled to be

impleaded as a party only for the purpose of enhancement of

compensation, but if any other question arises which touches the

issues of his entitlement or apportionment to the amount of

compensation, the same may be considered by raising of an application

under Order I Rule 10 of the Code of Civil Procedure.

22. The Supreme Court in the case of Amit Kumar Shaw (supra), held

that a transferee pendente lite to the extent he has acquired interest

from the defendant is vitally interested in the litigation. It was observed

whether the transfer is of the entire interest of the defendant, the latter

having no more interest in the property may not properly defend the

suit or he may collude with the plaintiffs. In these circumstances, the

Supreme Court had held that a transferee pendente lite of an interest in

immovable property is a representative-in-interest of the party from

whom he had acquired that interest and he is entitled to be impleaded

as party in any suit where transferee pendente lite is made a party. It

was held that even such a transferee is entitled to be heard in the

matter on the merits of the case. Similarly in Dhanlakshmi and Others

(supra), it was held by the Supreme Court that transferees-in-interest of

other co-owners acquiring interest during pendency of a partition suit

filed by a co-owner are necessary parties. In the present case, the

applicants have already been impleaded as a party to a writ petition

which was filed against the order of the Financial Commissioner dated

19th January, 2006. The applicants are claiming rights in the same

khasra No.415 in which the plaintiffs are claiming their rights and are

seeking a declaration that they are in possession since 1976-77. The

plaintiffs are also challenging the order dated 19th January, 2006

passed by the Financial Commissioner upholding its earlier order

whereby the land was withdrawn from the plaintiffs. The same land

has been allotted to the applicants and the karyewahi in respect of the

said land in favor of the applicants is pending. In case the applicants

are not impleaded as parties to the present suit, the findings and

decision which may be given in the suit may not be binding upon the

applicants. Though the rights in favor of plaintiffs flow through gaon

sabha, nevertheless, it cannot be inferred that the applicants do not

have any rights. The claim of applicants will not attain finality unless

they are impleaded as parties to the suit.

23. In the present case, the plea of the plaintiffs/non-applicants that

it is the gaon sabha which is a necessary party and it should only be

gaon sabha which sould remain as a party as far as challenging the

order dated 19th January, 2006 of the Financial Commissioner is

concerned cannot be sustained. Since the rights have been transferred

by the gaon sabha in favor of the applicants in the immovable property

they would be in a better position to contest the rights claimed by the

plaintiffs and it cannot be held that the applicants are not the

necessary parties and they should not be impleaded.

24. In the circumstances, non-impleading the applicants will cause

multiplicity of proceedings and may also lead to the conflicting orders

and therefore on the ratio of the decision referred hereinabove, the

applicants are necessary parties and are entitled to be impleaded.

25. In the totality of facts and circumstances and for the foregoing

reasons, the application is allowed and the applicants are impleaded as

parties to the present suit as defendants No.3, 4, 5 and 6.

CS(OS) No.677/2006

Amended memo of parties be filed within four weeks.

A complete set of paper book be given to the counsel for

defendant Nos. 3 to 6 who have been impleaded as parties today.

Written statement, if any, be filed by the newly added defendants within

four week. The learned counsel for the plaintiff also seeks time to file

replication to the written statement of defendants No.1 & 2. Replication

be filed within four weeks.

List before the Joint Registrar for completing the pleadings on

22nd April, 2009.

JANUARY 28, 2009                                  ANIL KUMAR, J.
"K/Dev"