Court No.1
HIGH COURT OF SIKKIM
Record of Proceedings through Video Conferencing
WP(C) No. 21/2019
MUNNI DEVI & ORS. PETITIONER (S)
VERSUS
DUL DUL PRASAD & ORS. RESPONDENT (S)
For Petitioners : Mr. Nayan Nepal, Advocate
For Respondents : Mr. J.B. Pradhan, Sr. Advocate
Mr. D.K. Siwakoti, Advocate
Ms. Prarthana Ghataney, Advocate
Ms. Ranjeeta Kumar, Advocate
Date: 02/07/2021
CORAM :
HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
...
1. Assailing the undated Award passed by the Lok Adalat though
signed on 26.06.2015, this petition has been filed by the petitioners under
Articles 226 and 227 of the Constitution of India.
2. The case of the petitioner in nutshell is that petitioner no.1 is a wife
of the Defendant no.1 in the suit and petitioner no.2 and 3 are his sons. It is
their grievance that they are deserted by defendant no.1 and the suit property
in which they are residing has been partitioned without joining, noticing them
and affording opportunity in violation of the principle of natural justice.
3. It is contended that as per the allegations made, the suit, the
property in question belongs to Late Kashi Nath Prasad, who died in the year
1996-97 leaving behind six sons namely 1. DulDul Prasad, 2. Pradeep Prasad, 3.
Shiv Shankar Prasad (died in 2003-04), 4. Sunil Prasad, unmarried, died in
March, 1997, 5. Dilip Prasad and 6. Anil Prasad. As pleaded after the death of
Kashi Nath Prasad the suit property was recorded in the name of the plaintiff
and defendants only and the partition thereof was sought for in the suit. In the
said partition suit, a compromise deed dated 22.06.2015 was filed and the
respondents only have entered into the compromise partitioning the entire
property by collusion and fraud, which was originally belong to Late Kashi Nath
Prasad. However, suit of partition filed by the plaintiff/respondent no.4, Anil Page | 1 Court No.1 HIGH COURT OF SIKKIM Record of Proceedings through Video Conferencing
Prasad, has been decreed. Various other allegations have been alleged, inter
alia, contending that the construction was raised by her and she is residing in
the said premises, however, to oust her, the said suit and compromise was
entered into. In view of the foregoing facts, it is urged that without joining the
proper parties and adjudicating the issues involved in the facts of the case, a
decree has been obtained by virtue of the impugned settlement of the Lok
Adalat Award which may be set aside.
4. On the question of maintainability of the petition reliance has been
placed on the judgment of Hon'ble the Supreme Court passed on 07.09.2017 in
Civil appeal no.11345/2017 (Bhargavi constructions & Anr. vs. Kothakapu
Murthyam Reddy & Ors.) relying upon the judgment of Hon'ble Apex Court in
the case of State of Punjab and Anr. vs. Jalour Singh & Ors. reported in
(2008) 2 SCC 660. On the basis of the said judgments it is urged that the
petition under Articles 226 and/or 227 of the Constitution of India is
maintainable.
5. On the other hand, learned Senior Counsel representing the
respondent nos.1 to 4 has referred various paragraphs of the writ petition and
relief clause to submit that the Writin the nature of mandamus/certiorari against
private party is not maintainable. Reliance has been placed on the judgment of
the Hon'ble Supreme Court in the case of Shalini Shyam Shetty & Anr. vs.
Rajendra Shankar Patil reported in (2010) 8 SCC 329 to contend that even
within the purview of the Article 227 the power of the Court must be exercised
sparingly as specified in paragraphs 49 of the said judgment which is not a case
at hand in the facts. Reliance has been further placed on a judgment of the
Hon'ble Apex Court in the case of Radhey Shyam & Anr. vs. Chabbi Nath &
Ors. reported in (2015) 5 SCC 423 determining the scope of Articles 226 and
227 of Constitution of India, clearly spelt out that the scope of Article 226 is
different from the scope of Article 227 of the Constitution of India and by joining
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the private party until public duties they are discharging the Writ cannot be
entertained.
6. In addition to the aforesaid facts it is urged that the suit was filed
merely to partition of the property which is recorded in the joint name, however,
in such a case the claim of the petitioner is through defendant no.1, which is
clearly protected by virtue of settlement arrived between the parties of the suit.
The Award of the Lok Adalat do not warrant any interference in this petition,
therefore, maintaining the Award, the Writ Petition may be dismissed.
7. After having heard learned Counsel appearing for the parties and in
view of the clear pronouncement on the issue involved in the present case
squarely decided by the judgment of the Bhargavi Constructions (supra) and
Jalour Singh (supra)the petition under Articles 226 and/or 227 of Constitution
of India challenging the Award of the Lok Adalat is tenable. Hon'ble Apex Court
in the case of Jalour Singh (supra) in paragraph 12 observed as thus:
"12. It is true that where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits."
8. The said judgment has been followed in the case of Bhargavi
Constructions (supra), therefore, there is no cable of doubt that the Award of
the Lok Adalat can be assailed by way of petition under Articles 226 and/or 227
of the Constitution of India.
9. The judgment relied upon by the learned Senior Counsel are not in
the context of the challenging the Award passed by the Lok Adalat and
answering the said question. It is with respect to the maintainability of the
petition under Article 226 of the Constitution of India in the context of Article 12
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of the Constitution of India and the scope of the power under Articles 226
and/or 227 of the High Courts. Therefore, the judgments relied by the learned
Senior Counsel for the respondents are the easily distinguishable looking to the
fact that the judgment of Bhargavi Constructions (Supra) and Jalour Singh
(supra) squarely decide the issue of the maintainability as involved in the
present case. Therefore, the argument of non-maintainability of the petition as
advanced by the learned Senior Counsel is hereby repelled. The contention
referring the petition regarding issuance of the Writ of mandamus and certiorari
can be ignored with a view point that such Writ cannot be issued looking to the
fact of the present case where the Award of the Lok Adalat has been assailed.
10. Reverting back on the merit of the issue as per the pleadings of the
suit in paragraph 2 it is clear that Late Kashi Nath Prasad who was the father of
the plaintiff and defendants was allotted a piece of land at Mandi Bazaar,
Rangpo, East Sikkim by the Urban Development and Housing Department,
Government of Sikkim. In paragraph 3 it is stated that on death of Kashi Nath
Prasad it was transferred in the name of the plaintiff and the defendant by
document dated 30.06.1999 and later on the Lease Deed was registered in
2004as pleaded in paragraph 4. It is said that the plaintiff constructed the
house of 5 ½ storied RCC building and the said property has been shown as
Scheduled property in the suit to which a partition was sought for.
11. On the other hand, the petitioners before this Court have contended
that late Kashi Nath Prasad was not survived only by four sons but he was
survived by six sons. One son died without marrying and the other son Shiva
Shankar Prasad is having legal heirs. If the property was of late Kashi Nath
Prasad as stated Shiva Shankar Prasad as stated by the plaintiffs at paragraph 2
then such a situation the suit for partition, if any, filed by only four persons
whose names have been subsequently recorded which was decreed by the Lok
Adalat without noticing the other cannot be sustained in the law. In addition to
the aforesaid the petitioners contend that they are legally wedded wife and sons Page | 4 Court No.1 HIGH COURT OF SIKKIM Record of Proceedings through Video Conferencing
of defendant no. 1, who have been deserted by the defendant no.1, though they
are residing and in possession of the house in question. They have also taken
the plea that the said construction has been raised by them. However, in such a
situation the issue has to be decided by the Court in a partition suit joining them
though they are claiming through defendant no.1.
12. In that view of the matter in place of accepting the plea that the
compromise by virtue of collusion and fraud and the Award so passed in the
same fashion; but in view of the observation so made it is suffice to observe the
Award so passed by the Lok Adalat in view of the pleadings of the suit without
joining all the parties and without affording an opportunity is not proper. In such
a situation, Writ Petition under Articles 226 and/or 227 of the Constitution of
India is maintainable. The Award so passed by the Lok Adalat in the given fact is
liable to be set aside.
13. Accordingly, this Writ Petition is allowed, the Award passed by the
Lok Adalat stands set aside. The suit be restored to its original file and it would
be decided by the Court in accordance with law joining the petitioners as a party
and taking all particulars that how many legal heirs are of Kashi Nath Prasad
there, to which the partition of the property of Kashi Nath Prasad as pleaded
and prayed. It is made clear here that this Court has not expressed any opinion
on the merit of the case and the petition has been decided with foregoing
observations, however, the Trial Court shall decide the suit in accordance with
law affording opportunities to all the parties without influencing with any of the
observation, if any, on merit of the case.
14. In the facts of the case, the parties to bear their own cost.
Chief Justice jk/avi
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