Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8791 of 2011 ====================================================== Raj Kishor Singh, Son of Late Parmeshwari Singh, Resident of Village Ekparha, P.S. Gamharia, District Maehdpura. .... .... Petitioner Versus 1. The State of Bihar, through Collector, Madhepura. 2. The Collector, Madhepura. 3. The Sub-Divisional Officer, Madhepura. 4. The Deputy Collector, Land Reforms, Madhepura. 5. The Anchal Adhikari, Gamharia, Madhepura. 6. Mohan Prasad Singh, Son of Late Kedar Prasad Singh. 7. Santosh Kumar Singh, Son of Kapileshwar Prasad Singh. Both are residents of Village Ekparha, P.S. Gamharia, District Madhepura. .... .... Respondent/s ====================================================== Appearance : For the Petitioner : : : Shri Prakash Srivastava, Advocate Mr. Sunil Kumar Singh, Advocate Dr. Sanjay Kumar Singh, Advocate For the Respondents ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER 8 05-02-2013 Heard learned counsel for the petitioner and the
Legal Reasoning
counsel appearing on behalf of the respondents. The petitioner who is the plaintiff in this case has challenged the order dated 1.4.2009, passed by the Civil Judge-I, Madhepura in Title Suit No. 156/2000 by which the Court has allowed the application filed by the intervenors under Order 1 Rule 10(2) to be added as a representative capacity in the suit. The facts of the case are that there is a piece of land which has been recorded in the R.S. Khatiyan as ‘Anabad Bihar Sarkar’, whereas part of the land about 1 acre, 12 decimals and 10 dhurs has been recorded as ‘Anabad Sarv Sadharan’ (meaning thereby land belonging to the 2 Patna High Court CWJC No.8791 of 2011 (8) dt.05-02-2013 2 / 5 community). In the year 1990 an encroachment case was instituted at the instance of the intervenors in this case. The Circle Officer on 18.7.1990 found that the petitioner had encroached upon the lands in question. The petitioner filed an appeal where he succeeded. Thereafter the intervenors moved this Court by filing a writ application, this Court remanded the matter back for reconsideration of the Collector. The Collector passed an order holding that the petitioner was encroacher on the land which is subject matter of dispute in the present suit. Being aggrieved by the order of the Collector, the petitioner filed an appeal which was dismissed on 14.3.2000. Ultimately, the petitioner has filed the present suit impleading the State of Bihar, the Sub-Divisional Officer and the Circle Officer as defendants in this case. In the plaint the petitioner set up his title on the basis of settlement. He further claims that the entry in the revisional survey has to be corrected and that the orders passed in the encroachment proceeding dated 18.7.1990, 25.6.1996 and 14.3.2000 should be set aside as they are illegal and contrary to the facts of the present case. Learned counsel for the petitioner submits that the petitioner is not claiming any relief against the intervenor and as such he is not necessary party in this case. For this purpose the 3 Patna High Court CWJC No.8791 of 2011 (8) dt.05-02-2013 3 / 5 petitioner relies on judgments of this Court passed in the case of Guneshwar Prasad & Anr. Vs. State of Bihar & Ors. [2000 (3) PLJR 514]. The facts of the case were that the plaintiffs had filed a title suit against the State of Bihar seeking an injunction against them from interfering with the possession of the suit property by the plaintiff and from carrying any demolition of the boundary wall in order to construct a road. After the witnesses etc. were produced, two persons appeared in the Court of Munsif and made a prayer that they should be added as party in this case. The Court held that these persons had no interest in the land in question since the land was recorded as ‘Gair Mazarua Aam’ land and as such set aside the order by which the intervention application was allowed. Learned counsel the petitioner also refers to the case of Dr. Ramesh Kumar Jha Vs. Smt. Netrayani Jha [2006 (4) PLJR 63]. The plaintiff in this case had filed an application for correction of the survey entry and for a declaration of their right, title and interest in the property in question. The state authorities were made party to the suit. The intervenors had filed an application that he may be added as party as the lands in question were the public path way and that he had a right to use the land in question and as such, he was necessary party in the case. This Court set aside the order allowing the intervenors to be added as party as they were no lis of pending between the 4 Patna High Court CWJC No.8791 of 2011 (8) dt.05-02-2013 4 / 5 plaintiff and the intervenors with respect to the disputed property. In both these cases referred to above, the State of Bihar was made party who protects the interest of the public as well as the interest of the State of Bihar and as such this Court had come to a conclusion that the Court cannot allow any person to be added as party, especially if he has no direct interest in properties in dispute. On behalf of the respondent nos. 6 and 7 (the intervenors), it is submitted that they have been moving the State of Bihar to get the encroachment removed from the lands under dispute from 1990 to 2000, the petitioner has refused to remove the encroachment despite there being several orders of the state authorities. It is further submitted that after losing on all fronts, he has filed the suit which is for setting aside the entry in the revisional survey which is actually a time barred application. It is also submitted that since there is a prayer in the plaint that the orders passed in the encroachment proceeding should be held to be void, illegal and not binding on the petitioners, the respondent nos. 6 and 7 who are parties to those orders and were instrumental in pursuing the encroachment case would become, if not necessary party at least a proper party in the suit. Lastly, it is submitted that in the present suit the state authorities did not appear at the first instance and it was only after the matter was pursued on behalf of the respondent 5 Patna High Court CWJC No.8791 of 2011 (8) dt.05-02-2013 5 / 5 nos. 6 and 7 that the state authorities appeared in this case to protect the right and title of the State of Bihar. Considering the rival submissions of the parties, it is a fact that the petitioner is not seeking any relief against the intervenors-respondents 6 and 7, nor the intervenors claim any title to the lands in question, as such they are not essential for the purpose of deciding the lis in this case. The proper and necessary party is the State of Bihar who is supposed to protect the right of the State of Bihar in this case. I, therefore, find that there is no occasion for adding the respondent nos. 6 and 7 State of Bihar as defendants in this case. Before parting with the order, I would however, observe that if the Court, at any stage, finds it essential to add the respondent nos. 6 and 7 as parties in this case, on the ground that they would be able to represent the right of the public in this case as part of the land is recorded as ‘Anabad Sarv Sadharan’, the Court would have the liberty to do so.
Decision
In the result, the order dated 1.4.2009, passed by the Civil Judge-I, Madhepura in Title Suit No. 156/2000 is set aside. This writ application is allowed. Sanjay/- (Sheema Ali Khan, J.)