State of Haryana through Tehsildar Sales Gurgaon v. Ram Lal

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. R.K.S.Brar, Addl. A.G., Haryana. Mr. Pritam Saini, Advocate, for respondent No.1. Mr. R.S.Mittal, Sr. Advocate, with Mr. Sudhir Mittal, Advocate, for respondents No. 9 to 13. Gurdev Singh, J (oral) This revision petition under Article 227 of the Constitution of India has been filed by the State of Haryana through Tehsildar (Sales)- petitioner, for setting aside the order dated 29.8.2008 (Annexure P/5) passed by Additional District Judge, Gurgaon, dismissing the application under Order 1 Rule 10 CPC for impleading it as a party. It has been pleaded therein that the property in dispute, which was the subject matter of the appeal decided by Additional District Judge, Gurgaon, was transferred to Ram Lal – respondent as evacuee property on the basis of the decision dated

18.10.1985 of the Settlement Commissioner, by means of sale deed. Mange Ram, who was arrayed as respondent in the appeal, had succeeded in obtaining the ex-parte decree dated 20.12.1985 from the Civil Court on C.R. No. 5843 of 2009 (O&M) -2- wrong facts that it was ancestral property. The State of Haryana/Rehabilitation Department was not made a party in the suit. On coming to know about the ex-parte judgment Ram Lal filed a civil suit No.632 of 2003, which was decided by Civil Judge (Sr. Division) Gurgaon, vide judgment and decree dated 17.12.2007. Vide that decree the sale deed Ex.P/1 issued by the Rehabilitation Department has been declared null and void ab initio. Against that judgment and decree Ram Lal filed the first appeal before the Additional District Judge, Gurgaon. In that appeal application was filed under Order 1 Rule 10 C.P.C for impleading the State of Haryana through Tehsildar (Sales) as necessary party. That application was dismissed while deciding the main appeal. That order is against the law and facts and has been passed in an arbitrary manner while mis-interpreting the provisions of Order 1 Rule 10 C.P.C. The State of Haryana through Tehsildar (Sales) should have been impleaded before the trial Court itself, as it was necessary party. I have heard learned counsel for the parties. It has been submitted by learned State Counsel that the Rehabilitation Department was having a right in the property in dispute said to have transferred in favour of Ram Lal – respondent and its presence before the first Appellate Court was necessary for determining the controversy between the parties completely and effectively. If it was not a necessary party even then it was a proper party and ought to have been impleaded as such. The order passed by the first Appellate Court suffers from illegality and is liable to be set aside. C.R. No. 5843 of 2009 (O&M) -3- On the other hand, it has been submitted by learned counsel for the respondents that the plaintiff is the dominus litus and he cannot be asked to fight against a person against whom he does not wish to fight. No right was claimed in the suit or in the appeal against the State of Haryana or the Rehabilitation Department. By no stretch of imagination it can be said that the petitioner was either a necessary or proper party. Civil suit No. 632 of 24.12.2003/12.2.1994 was filed by Ram Lal – respondent claiming the property in dispute on the ground that the same was their ancestral property and specific portions thereof were allotted to him and his other brothers by their father-Ganga Ram for residential purposes though the partition had not taken place by meets and bounds and that he was having 1/4th share in the total property and was debarred from enjoying the same to the extent of the share. It was also pleaded by Ram Lal that he purchased a plot from the custodian department vide Vasika No. 1262 dated 26.5.1987 and was the absolute owner thereof and had raised a house on that plot. He had filed civil suit No.1002 of 1985 in the Court of Sub Judge Gurgaon restraining the defendants from raising construction over the joint land till partition, in which compromise dated 11.8.1987 was entered into, vide which the defendants agreed to handover the possession of land measuring 125 Sq. Yards from the property of their father, but failed to implement that compromise. Man Singh filed another civil suit No. 388 of 1993 for permanent injunction restraining Ram Lal from interfering in his peaceful possession over the suit property by demolishing the wall shown as GH in the site plan on the ground that he was the owner in possession C.R. No. 5843 of 2009 (O&M) -4- thereof by virtue of the judgment dated 20.12.1985 passed in civil suit No. 213 of 4.3.1985. Both those suits were consolidated and decided vide common judgment dated 17.12.2007 passed by Civil Judge (Sr. Division) Gurgaon. The suit of Ram Lal was dismissed whereas that of Mann Singh was decreed. Ram Lal filed two appeal against the judgment and decree of the trial Court. In these appeals, the present petitioner filed said application under Order 1 Rule 10 C.P.C., for impleading it as a party on the ground that it was necessary party and should have been impleaded as such for proper adjudication of the case and that on account of its non-impleading great miscarriage of justice has been caused. It was also pleaded therein that the property in dispute was transferred to Ram Lal as evacuee property on the basis of the decision dated 18.8.1985 of the Settlement Commissioner and that on the basis of wrong facts that sale deed had been declared null and void ab initio. Keeping in view the facts of the present case this Court has come to the conclusion that there is no merit in these submission made by learned counsel for the petitioner. Once the property was transferred by Rehabilitation Department in favour of Ram Lal, it ceased to have any right or interest therein. A party can be impleaded even against the wishes of the plaintiff if his presence before the Court is necessary for deciding the controversy between the parties completely and effectually or where the Court comes to the conclusion that such a party ought to have been impleaded as such. It cannot be said that presence of the petitioner before the first Appellate Court was necessary for deciding the controversy C.R. No. 5843 of 2009 (O&M) -5- between the parties completely and effectually or that it ought to have been impleaded as party. It appears that the said application was got filed by Ram Lal. The petitioner was not having any existing interest in the land in dispute when the suit or the appeal was filed. There is no merit in this revision petition and the same is hereby dismissed. November 30, 2010 tripti (Gurdev Singh) Judge