Orissa High Court
Bhikari Charan Pothal .Since Dead. ... vs Hazina Bibi And Others on 21 September, 2017
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
C.M.P. No.1920 of 2016
In the matter of an application under Articles 226 & 227 of the Constitution
of India.
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Bhikari Charan Pothal (since dead)
1(a) Bina Pothal & others ... ... ... Petitioners
-Versus-
Hazina Bibi and others ... ... ... Opp. Parties
For Petitioners : M/s.G.Rout, S.K.Mishra, J.P.Das &
R.K.Dash.
For Opp.Parties : Mr. N.M. Praharaj.
(O.P.Nos.1 & 4 to 12)
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PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of Hearing :07.09.2017 Date of Judgment :21.09.2017
Biswanath Rath, J.This Civil Miscellaneous Petition involves a challenge to the order dated 30.11.2016 passed by the learned Additional District Judge -II, Mayurbhanj, Baripada in R.F.A. No. 28 of 2012 appearing at Annexure-7 thereby allowing the application under Order 1, Rule 10 of the Code of Civil Procedure at the instance of the respondent Nos.4to 12 therein and the petitioners herein involving an order in their favour for the respondent nos.4 to 12 transposing them as the appellants in the appeal involving the judgment and decree of the trial court in R.F.A. No.38 of 2012 being preferred at the instance of defendant no.6 in C.S.No.280 of 2004. 2
2. Short background involved in the case is that one Bhikari Charan Pothal, the husband of petitioner no. 1(a) and father of the petitioner nos.1(b) to 1 (d) involved herein preferred C.S.No.280 of 2004 seeking the following relief:
(i) to pass a decree declaring that the plaintiff has got right, title, interest and possession over the suit property.
(ii) To pass a decree declaring the deed of cancellation is illegal and has got no effect on the deed dated 6.4.04 executed by the defendants.
(iii) To pass a decree alternatively that the plaintiff perfected his title in his favour by adverse possession possessing the disputed land from the time of the father of the defendants.
(iv) To pass a decree for permanent injunction restraining the defendants not to enter upon the suit land permanently;
(v) To pass a decree for the cost of the suit etc.
(vi) And grant such other relief as the court deems fit and proper."
3. The case of the petitioners in the court below was that the father of the defendant, namely ,Piru Mahammed due to serious heart ailment continued with hypertension and paralysis requiring money urgently for his treatment outside the state and in the process, the defendant no.1 proposed to sell the disputed land for consideration money of Rs.11,000/- (Rupees eleven thousand), it is the marketing price prevailing in the year 1977. The original plaintiff being informed about the sale of the particular land and in 3 the negotiation process, the father of the plaintiff- the original plaintiff along with Shyamlal Mahanta, the informer went to the house of Piru with consideration money and expressed their willingness to purchase the disputed land in favour of the original plaintiff. Piru agreed for registration of the same on the next day on 12.12.1997 with a demand for payment of the amount in advance with delivery of possession of the land. Consideration money being paid, delivery of possession of the land was to be done as agreed in presence of Shyamlal Mahanta and another Radhamohan Singh. On return to the house of Piru, father of the plaintiff paid the total consideration money in presence of the above witnesses with a condition with Piru that he shall come to Sub-Registrar Office, Baripada on 12.12.1977 for registration of the sale deed. It is then Piru was not found in the Sub-Registrar Office, Baripada on 12.12.1977 rather they were informed that Piru has been shifted to a hospital in Cuttack and the father of the plaintiff was asked to wait for some time at least till return of Piru from Cuttack. Unfortunately, after a few days, the father of the plaintiff came to know that Piru was dead. Request being made to defendant no.1 to execute the sale deed, he went on delaying the matter on some plea or other. In the meantime, the father of the plaintiff also died. But since delivery of possession of the land was already made in favour of the plaintiff, plaintiff not only fenced the disputed land and constructed a small thatched house for the purpose of keeping his labourers and agricultural equipments, went on cultivating the disputed land. In the meantime, the 4 defendants further demanded a sum of Rs.2,31,000/- (Rupees two lakhs and thirty one thousand) and threatened the original plaintiff interfering in his possession. The original plaintiff finding no other way paid the further consideration money of Rs.2,31,000/- (Rupees two lakhs and thirty one thousand) to the defendants . After registration of the sale deed, plaintiff filed Mutation Case No.2031 of 2004. On their appearance, the defendants in the mutation case filed their objection objecting that they have not been paid any consideration money even till registration of the sale deed. Further, the sale deed was also objected on the premises of sale deed being not executed by some lady member of the family to be daughter and wife of Sk.Piru Mohammed, the original land owner. In the meantime, defendants have also intimated that the sale deed has been cancelled on the basis of a cancellation deed at the instance of the defendants. It is under the premises, the original plaintiff filed the suit seeking the relief indicated in paragraph-2 hereinabove.
4. On their appearance, the defendant nos. 1 and 2 filed joint written statement objecting the claim of the petitioner continuing with the plea that the payment of Rs.11,000/- to Piru is not only false but the claim of payment of Rs.2,31,000/-, as further consideration money, also claimed to be false. It is also stated by the defendants that getting notice in the mutation case, the defendants not only filed their objection indicating non- receipt of any consideration money and also denying delivery of possession in favour of the original plaintiff, the defendants also challenged the validity 5 of the sale deed being executed in absence of involvement of other family members. Further, the defendants also disputed regarding delivery of possession of the land in favour of the original plaintiff. The defendants further took the plea that coming to know the fraud played by the plaintiff, they have already executed the cancellation of the original sale deed on 20.5.2004. Thus, the defendants claimed that for the existence of the cancellation deed, the plaintiff is not entitled to any relief. Pending final adjudication of the suit involving the original plaintiff and the defendant nos.1 and 2, Defendant Nos.3 to 12 though added as defendants but did not file any written statement. The suit was decreed on contest in favour of the original plaintiff declaring the right, title, interest and possession over the disputed property. The judgment and decree was challenged by one of the defendants by way of regular first appeal bearing R.F.A. No. 38 of 2012 making therein the plaintiff as respondent no.1 and the defendant nos.2 to 12 also as respondents. While the appeal stood thus, the respondent nos.4 to 12 filed an application under Order 1, Rule 10 of the Code of Civil Procedure seeking transposition of them as appellants inter alia claiming therein that after the death of Sk.Piru Mohammed, the property devolved to his wife, the appellant, son and daughters i.e. defendants inter alia Respondent nos.2 to 12 and thus claimed joint right over the disputed property involving the suit. The respondent nos.4 to 12 also claimed that since defendant nos.3 to 12 have got specific stand involving the suit land and defendant nos.1 and 2 have not challenged the transfer of the same in 6 favour of plaintiff and respondent no.1 and, therefore, they cannot be affected by the judgment and decree, which is not binding on them. The respondent nos.4 to 12 also claimed that the transposition of the appellant also required for an effective adjudication of the dispute involved. On receipt of copy of the application for transposition of the respondent nos.4 to 12, the plaintiff while filed his objection intr alia contended therein that the petitioners seeking transposition are not the L.Rs. of Sk.Piru Mohammed. Wife of Piru is already dead. It appears there is no L.R. of Piru except his two sons, namely, Tahir Mohammad and Khalil Mohammad , who were appearing all through as defendant nos.1 and 2. It is also alleged that the application has been filed by the respondent nos. 4 to 14 with an intention to harass the plaintiff and grabbing the disputed property. Further, the suit being confined to registered sale deed by defendant nos.1 and 2 for their father being dead, the respondent nos. 4 to 12 are not necessary parties to the suit. The claim of the respondent nos.2 to 12 in paragraph 5 of the application was seriously opposed. Further, for the disclosures of the sale deed by defendant nos.1 and 2, the claim of the respondent nos. 4 to 12 will widen the scope of consideration of suit. It is under the above circumstance, the original plaintiff prayed for rejection of the application under Order 1, Rule 10 of the Code of Civil Procedure. Hearing the rival contention of the parties and relying on certain decisions referred to therein, the lower appellate court allowed the application under Order 1, Rule 10 of 7 the Code of Civil Procedure filed by respondent nos.4 to 12 thereby effecting the transposition of respondent nos.4 to 12 as appellants.
5. Assailing the impugned order, Sri G.Rout, learned counsel for the L.Rs. of the substituted plaintiff reiterating their stand taken by the plaintiff in the court below submitted that there has been illegal consideration of the provision under Order 1, Rule 10 (2) of the Code of Civil Procedure by the trial court. For the respondent nos.4 to 12 having not effectively participated in the suit proceeding, no case of theirs is available to be considered in the appeal. Sri Rout, learned counsel thus claimed that there has been failure in appreciation of the provision contained in Order 23 Rule 1(a) of the Code of Civil Procedure by the lower court. Relying on a decision of this Court rendered in the case Piyush Hasmukhlal Desai v. International Society for Krishna Consiousness (ISKCON), 2016 (I) ILR-CUT 236, Sri Rout further submitted that the decision has a direct bearing in this case and, therefore, the Civil Miscellaneous Petition should be allowed upon setting aside of the impugned order.
6. In his opposition, Sri N.M.Praharaj, learned counsel appearing for the contesting opposite parties defending the impugned order submitted that for the reasons assigned in the application under Order 1, Rule 10 of the Code of Civil procedure at the instance of the respondent nos. 4 to 12 in the court below, the respondent nos.4 to 12 had a case for being transposed as appellant under the footing of their being legal heirs of the original owner of the property. Referring to the pleadings made in the application under 8 Order 1, Rule 10 of the Code of Civil Procedure filed in the court below and further referring to two decisions of this Court rendered in the cases of Balabhadra Panda and others v. State of Orissa and others, (1987), C.L.T.(Supp.) 215 and Jamal Mohammad and another v. Saukat Ara and twenty-eight others, 74 (1992) C.L.T., 963, Sri Praharaj, learned counsel submitted that for the findings therein in both the decisions referred to hereinabove have direct bearing on the opposite parties' case and it is under the premises claimed that there has been a justified consideration of the application under Order 1, Rule 10 of the Code of Civil Procedure.
7. Considering the rival contentions of the parties, this Court finds there is no dispute that for failure of execution of the sale deed by the father of the original plaintiff, there has been execution of another sale deed by the defendants. Defendant nos.1 and 2's specific case in the court below is that the sale deed executed by them becomes invalid not only for no payment of consideration money but also for the existence of a registered cancellation of the sale deed. Perusal of the written statement filed by the opposite party nos.1 and 2, it appears that the defendant nos. 1 and 2 taken a clear plea in the written statement specifically in paragraph-4 that the father of the defendants had also other legal heirs, such as wife and number of daughters indicated therein, as such claimed the suit should be dismissed for non-joinder of these parties. It appears that the validity of the sale deed, as claimed by the plaintiff also challenged on the premises that there was no payment of consideration money. Defendant nos.1 and 2 had also a 9 specific plea that the sale deed has been executed on misrepresentation and more particularly, the defendants had agreed for sale of a lesser quantity of land and it is under the good faith, the defendants executed the sale deed on 6.4.2004 in favour of the plaintiff under the impression of sale of Ac.1.03.652 decimals of land. Reading of the plea of the defendant nos.1 and 2 in their written statements at paragraphs-4, 11 and 12, this Court finds the defendant had the following pleadings:
"4. That, the plaintiffs has not impleaded the widow of Sk.Piru Surman Bibi and Nine daughters namely; 1) Jaiman Bibi, 2) Raheman Bibi, 3) Karime Bibi, 4) Sariman Bibi, 5) Jaina Bibi, 6) Hajina Bibi, 7) Madina Bibi, 8) Naino Bibi, 9) Marjina Bibi in the above suit and as such in absence of the legal heirs of Sk.Piru who have inherited the suit property , the suit is liable to be dismissed for non-joinder of necessary parties.
11. That Sk.Piru Mahammed died in the year 22.1.80 leaving behind widow Surman Bibi and two sons namely Sk.Tahir Mahammed (D.No.1), Sk. Khalil Mahammed (D.No.2) and nine daughters namely,(i) Jaiman Bibi, (ii) Raheman Bibi, (iii) Karime Bibi, (iv) Sariman Bibi, (v) Jaina Bibi, (vi) Hajina Bibi,
(vii) Madina Bibi, (viii) Naina Bibi, (ix) Marxina Bibi as his legal heirs who have inherited his property.
12. That as per the Muslim Law of inheritance widow Surman Bibi is entitled to get 1/8th share ( (A0.45.25) the suit property and each son is entitled to get 2/13 share each (i.e.A0.51.026 each) and the daughter is entitled to get 1/13 share each (i.e. A0.25.9213) each and thus the defendants jointly entitled to get A1.03.652 dec.).10
This Court observes it is under the above specific objections, the respondent nos.4 to 12 i.e. the defendant nos.3 to 12 though added as defendant nos.3 to 12 in the original proceeding, but these defendants had not filed written statement in the original court. It appears, Regular First Appeal is filed only at the instance of defendant no.6 in the trial court, the defendant no.6 has even no written statement in the court below. Looking to the application under Order 1, Rule 10 of the Code of Civil Procedure filed by the respondent nos.4 to 12 in the R.F.A.No.30 of 2012, this Court finds the application for transposition was based on the following plea:
Paragraphs-5, 6 and 7 of the application under Order 1, Rule 10 of the Code of Civil Procedure:
"5. That the entire suit land was belonging to Piru Mahammed for which by succession D-3 to 12 i.e. appellant and Respondent No.4 to 12 have got specific share in the suit land and D-1& 2 had no authority to transfer the same in favour of Plaintiff/Respondent No.-1 and share of D-3 to 12 i.e. appellant and Respondent No.-4 to 12 cannot be affected thereby and they are also not bound by the same and in spite of the sale deed by D-1 & 2, D.-3 & 4 are entitled to their legitimate share of land from out of suit property.
6. That, as basing on the sale deed from D-1 & 2 entire suit was decreed, D-6 has filed this appeal but these respondent No.-2 to 12 i.e. D-3 to 5 and D-7 to 11 have got joint right with the appellant and joint claim against the plaintiffs in respect to the suit property. So far complete, affective and proper adjudication of this appeal Respondent 11 No.-4 to 12 should be transposed to the category of the appellant for ends of justice and to protect their right over the suit property.
7. That, appellant and Respondent No-4 to 12 have no adverse interest with each other and their right and claim are same and similar. So Respondent No.-4 to 12 want to transpose themselves to the category of appellant, if Respondent No.-4 to 12 will be transposed to the category of appellant that in view of the provisions U/S-21 of the Limitation Act, question of limitation also does not arise U/S-107 of C.P.C. this appellate court has got power to order for transposition U/O-1, Rule-10 C.P.C.. Besides, Respondent No.-4 to 12 will get opportunity to fight against Respondent No.-1 and to protect their right over the suit land. It will also avoid multiplicity of proceeding. Perusal of the written statement filed by the defendant no.2, though the defendant nos.1 and 2 had a similar plea with regard to the right over the disputed property in favour of the present respondent nos.4 to 12, the respondent nos.4 to 12 neither filed any written statement nor chose to claim for treating the written statement by defendant nos.1 and 2 being adopted on their behalf
8. Perusal of the disclosures on the decree involved, from the pleadings of the parties as well as the discussions made in the impugned order this Court also finds.
Order 1, Rule 10 of the Code of Civil Procedure:
"10. Suit in name of wrong plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff 12 or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the Suit has been instituted through a bone fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just.
(2) Court may strike out or add parties--The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended--
Where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
13
Order 23, Rule 1-A of the Code of Civil Procedure:
"1-A. When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
9. This Court finds the application moved and dealt in the impugned order though nomenclated as under Order 1, Rule 10 of the Code of Civil Procedure under the premises of a claim by respondent nos.4 to 12 right over the disputed property, the suit being decreed in full in favour of plaintiff and only being challenged by defendant no.6 therein the appeal becomes a lis between the plaintiff and the defendant no.6. The rest of defendants become proforma respondents and no other issue involving the applicants involved in the application under Order 1, Rule 10 of the Code of Civil Procedure can be involved at this stage. The provisions either at Order 1 Rule 10 or Order 23, Rule 1-A of the Code of Civil Procedure is not applicable to the case at hand. Reading the impugned order, this Court finds there is no proper consideration of the above aspect by the trial court for which this Court finds the impugned order is not sustainable. Looking to the plea in plaint, stand of defendants in their written statement and particularly finding no written statement on behalf of party sought for transposition, this Court finds that while considering the application of this 14 nature, it is the bounded duty of the court to see the nature of dispute vis-à- vis the stand/position of the party claiming to be transposed in the appellate stage and to allow the same, if it can be of any help in ultimate adjudication of the issue involved, otherwise the court should refrain itself from entertaining such application.
10. Under the circumstance, this Court interfering in the impugned order sets aside the same. The Civil Miscellaneous Petition stands allowed. No cost.
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Biswanath Rath, J.
Orissa High Court, Cuttack.
The 21st day of September, 2017/sks