Delhi District Court
Om Parkash vs Gaon Sabha Paprawat & Ors on 25 November, 2011
IN THE COURT OF SH. VIKAS DHULL : SENIOR CIVIL JUDGE CUM RENT
CONTROLLER,
DWARKA COURTS, NEW DELHI
CS- 254/09
Om Parkash ...... Plaintiff
Vs.
Gaon Sabha Paprawat & Ors. .... Defendants
Date on which order reserved : 22.11.2011
Date on which order pronounced : 25.11.2011
ORDER
1. Vide this order, I shall dispose of an application filed by the applicant Sri Chand U/o 1 Rule 10 R/w 151 Code of Civil Procedure 1908(hereinafter referred to as CPC) for his impleadment as defendant in this case.
2. It is averred in the application that applicant has recently come to know that plaintiff has obtained a retrained order from this court by concealing the material facts regarding common passage forming part of Khasra No. 241, Village Paprawat, Delhi. It is submitted that there is a common public passage in Khasra no. 241, village Paprawat, Delhi and the said public passage was left during the consolidation proceedings and lead to residential plot of different people. It is further submitted that the said public passage was encroached by the plaintiff and thereafter complaint U/s 133 Cr.P.C was lodged against the plaintiff before the concerned court of SDM. Thereafter, Sh.S.S Parihar, SDM, vide order dated 14.06.2006 had held that plaintiff has encroached upon the khasra no. 241, village Paprawat, New Delhi and ordered for removal of encroachment CS-254/09 1/6 done by plaintiff as well as by other persons. Thereafter order passed by Sh S.S Parihar, SDM was confirmed by Hon'ble High Court of Delhi vide its order dated 14.06.2009 and even the SLP filed by the plaintiff against order of Hon'ble High Court was dismissed by Hon'ble Supreme Court of India vide order dated 02.08.2010. It is further submitted that applicant faught for the said common passage till the highest court of land and there is no dispute with regard to status of Khasra no. 241 being a common passage. Therefore plaintiff has no right to interfere in the construction of road over the said passage by the MCD. It is further averred that applicant being the resident of the village Paprawat and other residents of that area have every right to use and enjoy the said passage without any hindrance and obstruction. Therefore the applicant has a direct interest in the said common passage and by adding the applicant as a party in the suit, this court would be in a better position to effectively and completely adjudicate upon the controversy. Accordingly, it was prayed that applicant be impleaded as a defendant in array of parties.
3. In the reply filed by the plaintiff, preliminary objection was taken with regard to the maintainability of the present application filed by the applicant on the ground that the applicant has no locus standi to file the present applicant as he has no right, title or interest in the suit property.
4. On merits, it was denied that there is a common public passage in Khasra no. 241, Village Paprawat, Delhi. It was denied that this public passage was left during the consolidation proceedings. Encroachment by the plaintiff on the public passage was also denied. It was denied that Hon'ble Supreme court of India has confirmed that the passage is a common public passage. It was further submitted that there is no public passage. Therefore the question of use and enjoy the said CS-254/09 2/6 common passage by villagers and applicant does not arise at all. It was further submitted that suit property is a private property of the plaintiff and applicant has no concern with the same. Accordingly, a prayer was made to dismiss the application.
5. In the reply filed by the defendant no.1 & 2, preliminary objection was taken regarding maintainability of the application on the ground that applicant Shri Chand has no locus standi to file same and become a party in this case, as khasra no 241 is a common passage and belongs to defendant no.1 & 2.On merits, it was submitted that interest of the applicant as well as of the other villagers are being defended properly by the answering defendant Gaonsabha, which is also a public body under the act of Parliament . Accordingly, it was submitted that there is no requirement of adding the name of applicant as defendant in this case as impleadment of defendant will open flood gates for other residents of the villagers. Accordingly, prayer was made to dismiss the application.
6. Defendant no.3, MCD chose not to file any reply and counsel for MCD submitted that he will argue the application without filing the reply.
7. I have heard Sh. R.S Sherawat, counsel for plaintiff, Sh M.K. Sharma, counsel for defendant no.1 & 2, Sh Naveen Kaushik, counsel for defendant no.3 and Sh Rakesh Srivastava, counsel for applicant and have perused the material on record.
8. Order 1 Rule 10 (2) of CPC provides for addition of parties, who are proper and necessary to effectively and completely adjudicate upon and settle all the questions involved in the suit. Further what is proper and necessary party has not been defined in Order 1 rule 10(2) CPC.However in the matter of Sarvinder Singh Vs. Dalip Singh (1996) 5 SCC 539, it was defined as to who is necessary or proper party in the suit. It was held that"
CS-254/09 3/6a necessary party is one without whom no order can be effectively made. A proper party is one whose presence is necessary for a complete and final decision of question involved in the proceedings. Therefore, the addition of parties, thus, would depend upon the judicial discretion which has to be exercised, in view of the facts and circumstances of a particular case."
9. In the light of the law discussed as aforesaid, now let us see whether the applicant is a necessary or proper party in this case or not. The controversy in issue is that plaintiff claims that the area shown in red in the site plan which falls in khasra no.241, Village Paprawat, Delhi is infact is forming part of his plot in khasra no. 239. It is further the case of the plaintiff that no common passage was left during the consolidation proceedings and area shown in red in site plan is his private property. On the other hand, the stand the defendant no.1 & 2 is that khasra no. 241 is a common passage to be utilized by villagers of village Paprawat, Delhi and the said public passage was left during the consolidation proceedings. Now to resolve the present controversy the necessary parties are owner of Khasra no. 239 and 241 i.e. plaintiff and defendant no.1 & 2. Since applicant is not the owner of either khasra no. 239 and 241, therefore he is not the necessary party for deciding the controversy in issue. However, the court can not lose sight of the fact that applicant has fought criminal proceedings U/s 133 Cr.P.C with regard to common passage in khasra no. 241, village Paprawat, Delhi till the highest court of this land i.e. Hon'ble Supreme Court of India. Further applicant Srichand is resident of village Paprawat and his house also falls on the alleged common passage. Therefore applicant has interest in the common passage, which is meant for use of villagers of village Paprawat. Hence presence of applicant before this court is necessary for a complete and final decision on question involved in the present proceedings regarding CS-254/09 4/6 common passage falling in Khasra no. 241, Village Paprawat, Delhi. Therefore applicant is a proper party. Hence application filed by applicant is allowed and he is added as defendant in this case.
10. Before parting with this order, this court is of the opinion that Deputy Commissioner, Revenue Department, Government of Delhi is a necessary and proper party for adjudication of the controversy in issue. During the course of arguments, counsel for MCD had submitted that they are not having the exact measurement of the common passage, where the road is to be constructed. Accordingly it was prayed that Revenue Department, Government of Delhi be made a party, as all the records with regard to exact measurement of common passage falling in Khasra no. 241, Village Paprawat, Delhi and the records pertaining to consolidation is with them. Counsel for defendant no.1 & 2 also submitted that entire record with regard to consolidation and with regard to measurement of Khasra no. 241 is with the Revenue Department, Government of Delhi. Further counsel for plaintiff also did not object to the prayer of counsel for defendant no.1,2 & 3 for impleadment of Revenue Department, Government of Delhi and he also fairly conceded that the impleadment of Department of Revenue, Government of Delhi is necessary as the entire revenue record with regard to Khasra no. 239, 241 and record regarding alleged common public passage left during the consolidation proceedings is with the Revenue Department.
11. In the light of submission made by the respective counsels this court is of the opinion that presence of Revenue Department, Government of Delhi before this court is necessary for deciding the controversy in issue as they are custodian of entire Revenue records pertaining to the alleged common passage falling in Khasra no. 241, Village Paprawat. The Revenue Department, Government of Delhi can effectively assist this court in adjudicating the controversy with regard to the existence of common passage in Khasra no. 241, village Paprawat, Delhi and with regard to the exact measurement of the entire common passage in village CS-254/09 5/6 Paprawat, Delhi. Therefore this court exercising suo moto power u/O 1 rule 10(2) CPC, implead Deputy Commissioner(SW), Revenue Department, Government of NCT of Delhi as defendant in this case. The application disposed of accordingly.
Announced in the open court (Vikas Dhull)
Dated: 25.11.2011 SCJ:RC
Dwarka/Delhi
CS-254/09 6/6