Uttarakhand High Court
WPMS/2154/2023 on 28 August, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SRI JUSTICE RAKESH THAPLIYAL, J.
AUGUST 28, 2023
Writ Petition (M/S) No. 2154 OF 2023
Between:
Lokendra Kumar. ............Petitioner.
And
Shri Kanchi Kamakoti Pitham Sankaracharya Swami Math and Another.
.......Respondents.
Counsel for the applicant: Mr. Piyush Garg, learned counsel for
the petitioner.
Counsel for the respondents: Mr. T.S. Bindra, learned counsel along
with Mr. Sagar Kothari, learned
counsels for the respondents.
Counsel for the State Mr. C.S. Rawat, learned C.S.C. for the
State.
Upon hearing the learned Counsel, the Court made the following Order:
(per Sri Rakesh Thapliyal, J.)
1. Learned counsel for the respondents Mr. T.S. Bindra
submits that in view of the statement, as given in the written
statement filed in the Suit, which was decreed, against which an
appeal was filed, a specific stand was taken that the Suit is liable
to be dismissed on the ground of misjoinder of necessary party,
since the State of Uttarakhand is also a necessary and proper
party in the present Suit, as the land was leased out to the
defendants by the State for religious purposes subject to this
condition that the same will not be used for any other purposes.
2. Learned counsel for the respondents Mr. T. S. Bindra in
respect of the aforesaid submission submits that in paragraph-21
of the written statement the following assertions were made,
which reads as under:
"21. That for religious objectives, the State had given to the
defendant no. 1 all that land bearing Old Khasra No. 550
m area 2.80 hec. A registered indenture was executed by
the SDM Dehradun in favour of the defendant No. 1.
Subsequently, the property bearing No. 550 was assigned
Khasra No. for 43/0.500 ha, 463/0.280 ha, 443/554/0.200
ha, 463/546/0.153 ha that his total area 1.133 ha.
3. The Old Khasra number of the land, which was leased out
to the defendant was Khasra No. 550, which is converted to
Khasra No. 443.
4. Learned counsel for the petitioner Mr. Piyush Garg submits
that the plaintiff preferred the suit against the
respondents/defendants bearing Suit No. 355 of 2014 with the
following prayer:
"(i) A decree of perpetual injunction be issued in favour of
Plaintiff and against the Defendants restraining the
Defendants and all persons claiming through or under
them not to interfere in the peaceful possession of the
Plaintiff over property in suit.
(ii) Cost of the suit be awarded in favour of the Plaintiff and
against the Defendant.
(iii) Any other relief which the learned court deems fit and
proper under the facts and circumstances of the case be
also be awarded in favour of the plaintiff and against the
Defendant."
5. In the said suit filed by the petitioner/ plaintiff at the foot
of the plaint, there is a reference of schedule of property, which
is also being extracted hereinbelow:
"All that property bearing Khata No. 867 Khasra number 443 Ja
area 0.4660 hec situated at Village Dhoran Khas, Pargana
Parwadoon, Dehradun, Uttarakhand. "
6. While deciding the said suit, the Trial Court framed one of
the issues i.e. issue no. 7, which reads as under:
"7- D;k izLrqr okn vko";d o mfpr i{kdkjksa ds vla;kstu ds dkj.k ckf/kr gS\
;fn gka rks izHkkoA"
7. The issue no. 7 was decided against the defendants and the
finding as drawn by the Trial Court in respect of issue no. 7 is
reflected from paragraph-33 of the judgment, which reads as
under:
"33- i=koyh ij miyC/k nLrkostksa o okni= esa of.kZr rF;ksa dh leh{kk ds mijkar
U;k;ky; dk ;g er gS fd oknxzLr lEifRr esa oknh oknxzLr lEifRr dk dksbZ
laca/k ljdkj ls gSA oknxzLr lEifRr oknh dh O;fDrxr lEifRr gSA ,slh
fLFkfr esa orZeku ekeys esa ljdkj@jkT; ljdkj u rks vko";d i{kdkj gS vkSj
uk gh mfpr i{kdkj gSA rn~uqlkj ;g okn fcUnq izfroknh ds fojq) rFkk oknh ds
Ik{k esa fuLrkfjr fd;k tkrk gSA"
8. Against the judgment and decree dated 23.01.2017 passed
by the learned Civil Judge (J.D.), Dehradun, passed in Suit No.
355 of 2014, an appeal was preferred before the District Judge,
Dehradun, numbered as Appeal No. 07 of 2017, which is still
pending for adjudication.
9. The petitioner, during the pendency of the appeal, moved
an application under Order 26 Rule 9 of CPC, which according to
the learned counsel for the petitioner Mr. Piyush Garg has not
been decided and the learned District Judge by an order dated
18.07.2023 observed that the said application will be decided at
the time of final adjudication of the appeal.
10. Today, this matter is listed and during the course of
arguments, learned counsel for the respondents Mr. T.S. Bindra
has pointed out that before the Trial Court, specific averment was
made that the State is the necessary party since the land was
leased out by the State to the defendants.
11. Learned counsel for the respondents/defendants Mr. T.S.
Bindra further submits that the appeal, which is pending for
adjudication before the learned District Judge is in continuation
of the Suit and, therefore, in this writ jurisdiction under Article
227 of the Constitution of India State may be impleaded as one of
the respondents because ultimately the custodian of the land is
the State.
12. It is undisputed that the State has leased out the land to the
defendants, who are the respondents herein.
13. In reference to this, learned counsel for the petitioner Mr.
Piyush Garg has seriously objected by stating that the Suit has not
been dismissed on the ground of misjoinder of necessary party
and respondents' objection has been turned down by the Trial
Court by framing issue no. 7, which was decided against the
defendants. Against the said finding, the appeal is pending and,
therefore, in a writ petition under Article 227 of the Constitution
of India, the State cannot be impleaded as one of the respondents.
14. The submissions of Mr. Garg are not so convincing.
Ultimately the State is the custodian of the land, which was
leased out to the defendants and the copy of the lease is on record
from which it is clearly evident that the land was leased out to the
defendants - respondents herein by the State. Further, in the
written statement, particularly, in paragraph-27 and paragraph-
21 a specific statement has been made by the defendants that the
State is a necessary party.
15. Learned counsel Mr. T.S. Bindra submits that whatever be
the fate of the appeal, ultimate sufferer would be the State and,
therefore, in this writ jurisdiction under Article 227 of the
Constitution of India the State should be impleaded as one of the
respondents.
16. Learned counsel for the petitioner Mr. Piyush Garg seeks a
week's time to address this Court on the issue - whether in a writ
petition under Article 227 of the Constitution of India,
particularly, when the appeal is pending before the District Judge
for final adjudication the State can be impleaded as one of the
respondents?
17. Time so prayed is granted.
18. Learned Chief Standing Counsel for the State of
Uttarakhand Mr. C.S. Rawat is also present in the Court and he
will also address on the same issue.
19. Learned counsel Mr. Piyush Garg undertakes that he will
supply the copy of the writ petition to the learned C.S.C. by
tomorrow.
20. List this matter in the week commencing 18.09.2023.
21. In the meantime, learned counsel Mr. T.S. Bindra will seek
an adjournment before the Appellate Court.
__________________
RAKESH THAPLIYAL, J.
PR
