Himachal Pradesh High Court
Nanak Ram & Others vs Moosa on 6 November, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 50 of 2017 Reserved on: 31.10.2017 Decided on: 06.11.2017 .
__________________________________________________________ Nanak Ram & others .....Petitioners Versus Moosa ......Respondent ____________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
For the petitioners : Ms. Veena Sharma, Advocate. For the respondent :
r Mr. Prashant Sharma, Advocate.
Chander Bhusan Barowalia, Judge The present petition, under Section 115 of the Code of Civil Procedure, 1908 has been maintained by the petitioners/plaintiffs (hereinafter to be called as "the plaintiffs"), against the order dated 28.11.2016, passed by learned Civil Judge (Senior Division), Bilaspur, H.P., in CMA No. 154/6 of 2016, whereby an application, under Order 1, Rule 10 of CPC for impleading the State of Himachal Pradesh through District Collector, Bilaspur as defendant No. 2 was dismissed.
2. Brief facts leading to the filing of the present petition are that the plaintiffs have filed a suit before the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/11/2017 13:39:58 :::HCHP -2-learned trial Court for declaration to the effect that suit land was granted to their father under Bhakra Dam Oustee Scheme as Nautor, vide missal-nautor No. 502/69 and Patta .
to this effect was issued in the year 1974. As per the condition of Patta, the land granted cannot be transferred in any manner to any person except the legal heirs within a specific period of time. However, in the present case the land was transferred by way of Will, dated 19.11.1979 and mutation to this effect was also attested, as such, the mandatory period of 15 years had not expired at the time of transfer. Therefore, the land granted has to be resumed by the State and as such State of Himachal Pradesh is a necessary party the same may be ordered to be impleaded as defendant No. 2, through District Collector.
3. The defendant, by filing reply to the application has averred that though the land was granted as Nautor, however appointment of legal heir to succeed the land does not amount to transfer at all. It has been further averred that there is no violation of any terms of Patta, thus, the land cannot be resumed on the ground of violation of terms of Patta. Lastly, the defendant has prayed that as the ::: Downloaded on - 10/11/2017 13:39:58 :::HCHP -3- case has already been fixed for arguments, at this stage, the present application be dismissed.
4. The learned trial Court, vide order dated .
28.11.2016, dismissed the application of the plaintiffs, with the observation that the State of Himachal Pradesh is not a necessary party to the present case, hence the present petition.
5. I have heard the learned counsel for the parties and gone through the record in detail.
6. Learned counsel for the petitioners has argued that the learned trial Court without appreciating the fact that the State is necessary party in the present case, dismissed the application, so filed by the plaintiffs/petitioners. She has further argued that as the land in question was a Government land, granted to Nikku Ram under Bhakra Dam Oustee Scheme as Nautor, so in the present case, the State is required to be impleaded as necessary party and order passed by the learned trial Court, refusing to make the State a party, deserves to be set aside. On the other hand, learned counsel for the respondent has argued that the plaintiffs have moved the application after a considerable time and if the State was ::: Downloaded on - 10/11/2017 13:39:58 :::HCHP -4- necessary party, the application could have been moved at initial stage. He has further argued that the plaintiffs have moved the application just to prolong the litigation, hence .
the order passed by the learned trial Court needs no interference and the present petition be dismissed.
7. From the above it is clear that suit land was granted to Nikku Ram under Bhakhra Dam Oustee Scheme as Nautor. A Patta to this effect was also issued in year, 1974 and as per the conditions of Patta, the land granted cannot be transferred in any way to any person, except legal heirs within a specific period of time. In the instant case, whether the execution of the Will is a transfer of the land or not and whether the execution of the Will within 15 years is violation of terms of Patta, as well as Nautor Rules, are the issues which are to be adjudicated upon by the learned trial Court, on the basis of material on record, which the parties has already placed on record. Further the lis is likely to be decided and in these circumstance, this Court finds that no purpose will be served by impleading the State as party and delaying the proceedings. As the case is now at the final stage and pleadings of the parties are complete, at this stage, there is no necessity to implead the State as one of ::: Downloaded on - 10/11/2017 13:39:58 :::HCHP -5- the party defendant and the order passed by the learned trial Court suffers no illegality.
8. In view of the above discussion, the present .
petition sans merits, deserves dismissal and is accordingly dismissed. However, in the peculiar facts and circumstances of the case parties are left to bear their own costs. The parties are directed to appear before the learned Trial Court on 5th December, 2017.
9. The petition, so also pending miscellaneous application(s), if any, shall stand(s) disposed of.
(Chander Bhusan Barowalia) Judge 6th November, 2017 (raman) ::: Downloaded on - 10/11/2017 13:39:58 :::HCHP