Rajasthan High Court - Jodhpur
Kishan Singh & Anr vs Sita Ram & Ors on 13 March, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8272 / 2017
1. Kishan Singh S/o Shri Ram Karan, Aged About 59 Years, R/o
Nagaur Road, Degana, Tehsil Degana, District Nagaur (Raj.)
2. Baldev S/o Shri Likhma Ram, Aged About 38 Years, R/o Behind
Panchayat Samiti, Manasar, Tehsil and District Nagaur (Raj.)
----Petitioners
Versus
1. Sita Ram S/o Shri Srikishanji, R/o Naya Darwaja, Khodo-ka-
bas, Nagaur (Raj.)
2. State of Rajasthan Through District Collector, Nagaur.
3. Tehsildar, Nagaur.
4. Municipal Board, Nagaur Through Its Commissioner.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Muktesh Maheshwari
For Respondent(s) : Mr.Rajesh Joshi, Senior Advocate assisted by
Mr.Vineet R. Dave
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment 13/03/2018
1. This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs:
"1] the impugned order dated 02.06.2017 (Anx.7) passed by the learned ADJ, Nagaur, in allowing application under O.1 R.10 CPC filed by the respondent-Municipal Board, Nagaur may kindly be quashed and set aside.
2] The application filed by the respondent No.4 under Order 1 Rule 10 CPC (Anx.5) be dismissed in toto;
3] Any other writ, order or direction, which your Lordship may deem just and proper in the facts and (2 of 14) [CW-8272/2017] circumstances of the case, may also kindly be issued in favour of the petitioners."
2. The petitioners filed a suit under Order 7 Rule 1 CPC for execution of the sale deed in pursuance of the contract dated 08.08.2005 for sale of the agricultural land comprising khasra No.127 measuring 3 bighas 10 biswas, khasra No.128 measuring 10 biswas and khasra No.130 measuring 6 bighas situated in Nagaur. The suit was for perpetual injunction too.
3. The respondent No.1 is said to have been in possession of the aforementioned agricultural land, and thus, entered into an agreement for sale in respect of the said land on 08.08.2005 for a sum of Rs.3,41,000/-. The petitioners thereafter, took possession of the land and are said to have been in continuous possession thereof.
4. It is pertinent to note here that another suit for correction of the revenue entries was filed before the revenue court, which was dismissed and the appeal against the same is pending.
5. The issues were framed and the proceedings were continuing when the respondent No.4-Municipal Board, Nagaur filed an application under Order 1 Rule 10 CPC praying for its impleadment as party defendant in suit No.68/2011 filed by the petitioners, on the ground that the disputed land is situated in the notified limits of the Municipal Board, Nagaur, and therefore, the same vests in the Municipal Board, Nagaur, as per Section 68 of the Rajasthan Municipalities Act, 2009. The said application filed (3 of 14) [CW-8272/2017] under Order 1 Rule 10 CPC was allowed by the learned court below vide order dated 02.06.2017
6. Learned counsel for the petitioners has made a categorical submission that the suit itself was for execution of the sale deed and perpetual injunction, and therefore, no third party, who was not a signatory to the sale deed, can claim to be a necessary party to the suit.
7. Learned counsel for the petitioners has drawn the attention of this Court towards the reply filed by the State, in which it has been stipulated that the land is being claimed by the State of Rajasthan. Learned counsel for the petitioner, therefore, states that the State is already a party, and if it has a claim over the said property, it shall be open for the State to put its stand before the learned court below.
8. Learned counsel for the petitioners has also pointed out that earlier an application under Order 39 Rules 1 and 2 CPC was decided in favour of the petitioners, and respondent No.4 tried to enter the fray at a very belated stage, and that too, when there was no reason why it need to enter, as the dispute was basically pertaining to the execution of the sale deed, to which the Municipal Board, Nagaur was not a party.
9. Learned counsel for the petitioners has also pointed out that respondent No.4 is not a necessary party to the suit, and thus, any inclusion of respondent No.4 would be detrimental to the case of the petitioners to get an effective and early relief.
10. Learned counsel for the petitioners relied upon the precedent law laid down by the Hon'ble Apex Court in Vidur (4 of 14) [CW-8272/2017] Impex and Traders Private Limited & Ors. Vs. Tosh Apartments Private Limited & Ors., reported in (2012) 8 SCC 384, relevant portion of which reads as under:-
"43. We are in complete agreement with the Delhi High Court that the application for impleadment filed by the Appellants was highly belated. Although, the Appellants have pleaded that at the time of execution of the agreements for sale by Respondent No. 2 in their favour in February 1997, they did not know about the suit filed by Respondent No. 1, it is difficult, if not impossible, to accept their statement because the smallness of time gap between the agreements for sale and the sale deeds executed by Respondent No. 2 in favour of the Appellants and the execution of agreement for sale by the Appellants in favour of Bhagwati Developers would make any person of ordinary prudence to believe that Respondent No. 2, the Appellants and Bhagwati Developers had entered into these transactions with the sole object of frustrating agreement for sale dated 13.9.1988 executed in favour of Respondent No. 1 and the suit pending before the Delhi High Court. In any case, the Appellants will be deemed to have become aware of the same on receipt of summons in Suit No. 161/1999 filed by Respondent No. 2 for annulment of the agreements for sale and the sale deeds in which Respondent No. 2 had clearly made a mention of Suit No. 425/1993 filed by Respondent No. 1 for specific performance of agreement for sale dated 13.12.1988 and injunction or at least when the learned Single Judge of the Delhi High Court entertained IA No. 625/2001 filed by Respondent No. 1 and restrained Respondent Nos. 2 and 4 from transferring possession of the suit property to the Appellants. However, in the application for impleadment filed by them, the Appellants did not offer any tangible explanation as to why the application for impleadment was filed only on 4.2.2008 i.e. after 7 years of the passing of injunction order dated 22.1.2001 and, in our considered view, this constituted a valid ground for declining their prayer for impleadment as parties to Suit No. 425/1993.
44. The ratio of the judgment in Kasturi v. Iyyamperumal (supra), on which heavy reliance has been placed by the learned senior counsel for the Appellants, does not help his clients. In the present case, the agreements for sale and the sale deeds were executed by Respondent No. 2 in favour of the Appellants in a clandestine manner and in violation of the injunction granted by the High Court.
Therefore, it cannot be said that any valid title or interest has been acquired by the Appellants in the suit property (5 of 14) [CW-8272/2017] and the ratio of the judgment in Surjit Singh v. Harbans Singh (supra) would squarely apply to the Appellants case because they are claiming right on the basis of transactions made in defiance of the restraint order passed by the High Court. The suppression of material facts by Bhagwati Developers and the Appellants from the Calcutta High Court, which was persuaded to pass orders in their favour, takes the Appellants out of the category of bona fide purchaser. Therefore, their presence is neither required to decide the controversy involved in the suit filed by Respondent No. 1 nor required to pass an effective decree.
45. The next question which merits consideration is whether the Delhi High Court was justified in appointing the receiver and directing him to take possession of the property.
46. Though, learned senior counsel appearing for Bhagwati Developers has sought to invoke the doctrine of comity of jurisdictions of the Courts for continuance of the receiver appointed by the Calcutta High Court, we do not find any merit in his submission. It is not in dispute that Respondent No. 1 had filed the suit for specific performance on 1.2.1993 and the learned Single Judge of the Delhi High Court passed the order of injunction on 18.2.1993. The arbitral award for specific performance of the agreement for sale of the same property entered into between the Appellants and Bhagawati Developers was obtained on 7.1.1999. The execution proceedings were instituted in the Calcutta High Court in 2000 and the order for appointment of receiver was passed on 12.8.2000. It is thus clear that when Bhagwati Developers approached the Calcutta High Court, the Delhi High Court was already seized with the suit involving the subject matter of the award. The contention of the Appellants and Bhagawati Developers that they were unaware of the proceedings before the Delhi High Court cannot be accepted because in Suit No. 161/1999 filed by Respondent No. 2 for declaring that the agreements for sale and the sale deeds relied upon by the Appellants were false and fabricated, a specific reference was made to the suit filed by Respondent No. 1. That apart, in its order dated 15.2.2001 passed in the application filed by Respondent No. 4 in EC No. 10/2000, the learned Single Judge of the Calcutta High Court categorically observed that the said Court had not been apprised of the facts relating to the suit pending before the Delhi High Court and the injunction orders passed therein including order dated 8.2.2001 restraining the receiver of the Calcutta High Court from taking possession of the property and that if these facts had been disclosed, the Court would have been slow in passing the order that it (6 of 14) [CW-8272/2017] had passed earlier and hence the order passed by it, if it is in conflict with the order passed by the Delhi High Court, would be subject to that order and Bhagawati Developers who is a party to the proceedings before the Delhi High Court can approach the said Court for obtaining appropriate orders. This shows that on being apprised of the correct facts, the learned Single Judge of the Calcutta High Court had shown due respect to the orders passed by the Delhi High Court and directed that the same should operate till they are modified or vacated at the instance of the Appellants or Bhagwati Developers. The course of action adopted by the Calcutta High Court was in consonance with the notion of judicial propriety. Therefore, Bhagwati Developers cannot invoke the doctrine of comity of jurisdictions of the Courts for seeking continuance of the receiver appointed by the Calcutta High Court."
11. Learned counsel for the petitioners has also relied upon the precedent law laid down by the Hon'ble Apex Court in Kasturi Vs. Iyyamperumal & Ors. reported in AIR 2005 SC 2813, relevant portion of which reads as under:-
"17. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are therefore of the view that respondent Nos. 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of the contract for sale.
18. The learned counsel appearing for the respondent Nos. 1 and 4 to 11, however, contended that since the respondent Nos. 1 and 4 to 11 claimed to be in possession of the suit property on the basis of their independent title to the same, and as the appellant had also claimed the relief of possession in the plaint, the issue with regard to possession is common to the parties including respondent Nos. 1 and 4 to 11, therefore, the same can be settled in the present suit itself. Accordingly, it was submitted that the presence of respondent Nos. 1 and 4 to 11 would be necessary for proper adjudication of such dispute. This argument which also weighed with the two courts below although at the first blush appeared to be of substance but on careful consideration of all the aspects as indicated (7 of 14) [CW-8272/2017] herein earlier, including the scope of the suit, we are of the view that it lacks merit. Merely, in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract for sale because the respondent Nos. 1 and 4 to 11 are not necessary parties as there was no semblance of right to some relief against the respondent No. 3 to the contract. In our view, the third party to the agreement for sale without challenging the title of the respondent No. 3, even assuming they are in possession of the contracted property, cannot protect their possession without filing a separate suit for title and possession against the vendor. It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and the respondent Nos. 2 and 3 shall only be gone into and it is also not open to the Court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos. 2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos. 1 and 4 to 11 relating to the contracted property.
19. It was also argued on behalf of respondent Nos. 1 and 4 to 11 that to avoid multiplicity of suits it would be appropriate to join the respondent Nos. 1 and 4 to 11 as party-defendants as the question relating to the possession of the suit property would be finally and effectively settled. In view of our discussions made hereinabove, this argument also which weighed with the two courts below has no substance. In view of the discussions made herein earlier, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. As stated herein earlier, first there must be a right to the same relief against a party relating to the same subject-matter involved in the proceedings for specific performance of contract for sale, and secondly, it would not be possible for the Court to pass effective decree or order in the absence of such a party. If we apply these two tests in the facts and circumstances of the present case, it would be evident that the respondent Nos. 1 and 4 to 11 cannot satisfy the above two tests for determining the question whether a stranger/third party is entitled to be added under Order 1 Rule 10 of the CPC only on the ground that if the decree for specific performance of the contract for sale is passed in absence of respondent Nos. 1 and 4 to 11, their possession over the contracted (8 of 14) [CW-8272/2017] property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against respondent Nos 2 and 3. Such being the position, in our view, it was not open to the High Court or the trial court to join other cause of action in the instant suit for specific performance of the contract for sale, and therefore, the two Courts below acted illegally and without jurisdiction in allowing the application for addition of parties in the pending suit for specific performance of contract for sale filed at the instance of respondent Nos. 1 and 4 to 11. The Learned counsel for the respondent Nos. 1 and 4 to 11 however urged that since the two courts below had exercised their jurisdiction in allowing the application for addition of parties, it was not open to this Court to interfere with such order of the High Court as well as of the trial court. We are unable to accept this contention of the Learned counsel for the respondent Nos. 1 and 4 to 11. As discussed herein earlier, it is open to the Court to interfere with the order if it is held that two courts below had acted without jurisdiction or acted illegally and with material irregularity in the exercise of their jurisdiction in the matter of allowing the application for addition of parties filed under Order 1 Rule 10 of the CPC. The question of jurisdiction of the Court to invoke Order 1 Rule 10 of the CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct interest in the controversy involved in the suit. Can it be said that the Respondent Nos. 1 and 4 to 11 had any direct interest in the subject- matter of the instant suit for specific performance of the contract for sale? In our view the Respondent Nos. 1 and 4 to 11 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest from the parties to the litigation. One more aspect may be considered in this connection. It is that the jurisdiction of the court to add an applicant shall arise only when the Court finds that such applicant is either a necessary party or a proper party.
20. It may be reiterated here that if the appellant who has filed the instant suit for specific performance of contract for sale even after receiving the notice of claim of title and possession by the respondent Nos. 1 and 4 to 11 does not want to join the respondent Nos. 1 and 4 to 11 in the pending suit, it is always done at the risk of the appellant because he cannot be forced upon to join the respondent Nos 1 and 4 to 11 as party- defendants in such suit. In the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors. [1992]2SCR1 , on the question of jurisdiction this Court clearly has laid down (9 of 14) [CW-8272/2017] that it is always open to the court to interfere with an order allowing an application for addition of parties when it is found that the courts below had gone wrong in concluding that the persons sought to be added in the suit were necessary or proper parties to be added as defendants in the suit instituted by the plaintiff appellant. In that case also this Court interfered with the orders of the courts below and rejected the application for addition of parties. Such being the position, it can no longer be said that this Court cannot set aside the impugned orders of the courts below on the ground that jurisdiction to invoke power under Order 1 Rule 10 of the CPC has already been exercised by the two courts below in favour of the respondent Nos. 1 and 4 to 11."
12. Learned counsel for the petitioners has also relied upon the judgment rendered by this Hon'ble Court in Radheyshyam Goyal Vs. Mahaveer & Ors., reported in 2015(2) DNJ (Raj.) 870, relevant portion of which reads as under:-
"7. For impleadment of any party to the suit, the primary requirement which needs to be satisfied is that presence of such a party is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In the present case, a bare look at the suit Annex.-1 filed by the petitioner reveals that the suit is confined to seeking injunction against one Mahaveer, who is the neighbour and was raising construction next to the wall of the house in question and against the Municipal Council for restraining the said defendant No.1 from raising the construction.
8. The application was filed by the respondents based on the fact that another suit filed by the petitioner seeking declaration regarding the ownership / title of the suit property and a suit filed by legal representatives of Ganga Devi including the respondent seeking partition of the suit property were pending, which was given out as the sole reason for getting impleadment. It was also alleged that the plaintiff - Radheyshyam does not have the sole right qua the property and therefore, the respondent be impleaded as party. There is no allegation in the application regarding any collusion etc. between the petitionerplaintiff and defendant No.1.
9. The plea sought to be raised by the respondent regarding the ownership of the suit property, if permitted, (10 of 14) [CW-8272/2017] would result in enlarging the scope of the suit from a suit for injunction into a title suit between the plaintiff and defendant No.3, which cannot be permitted by way of impleadment of the party in the present suit.
10. As already noticed, the impleadment can only take place if the presence of the person is necessary to effectually and completely adjudicate the dispute in the suit and not a dispute to be created by way of fresh impleadment."
13. Learned Senior Counsel for the respondents however, opposed the aforesaid submissions made on behalf of the petitioners on the ground that the application under Order 1 Rule 10 CPC was merely on account of the land having been vested in the Municipal Board, Nagaur.
14. Learned Senior Counsel for the respondents has pointed out Section 68 of the Act of 2009, particularly sub- sections 1(a) and 1(f) of Section 68, which read as under:-
"Sec.68. Vesting of property.- (1) All property of the nature hereinafter in this section specified and not being specially reserved by the State Government shall, subject to any other law for the time being in force, vest and belong to the Municipality, and shall together with all other property of whatsoever nature or kind not being specially reserved by the State Government, which may become vested in the Municipality, be under its direction, management and control, and shall be held and applied by it as trustee subject to the provisions and for the purpose of this Act, that is to say-
(a) all vested public lands;
(b) . . . . .
(c) . . . .
(d) . . . .
(e) . . . .
(11 of 14) [CW-8272/2017]
(f) all public parks, gardens, including squares and public open spaces;"
15. Learned Senior Counsel for the respondents has thus, made out a case that the land in question is vested in the Municipal Board, Nagaur, by virtue of sub-section 1(a) of Section 68 of the Act of 2009, and moreover, a resolution has also been taken for the same to be used for expansion of the adjoining public park.
16. Learned Senior Counsel for the respondents has relied upon the precedent law of Vidur Impex and Traders Private Limited & Ors. Vs. Tosh Apartments Private Limited & Ors. (supra), as cited by learned counsel for the petitioners, particularly para 41 thereof, which reads as under:-
"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:
41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.
41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.
41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff.
(12 of 14) [CW-8272/2017] 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment."
17. Learned Senior Counsel for the respondents relied upon para 41.1 of the aforesaid precedent law of Vidur Impex and Traders Private Limited & Ors. Vs. Tosh Apartments Private Limited & Ors. (supra), while submitting that the presence of respondent No.4 is necessary for effective and complete adjudication of the issues involved in the suit.
18. Learned Senior Counsel for the respondents also stated that as per para 41.2 of the precedent law of Vidur Impex and Traders Private Limited & Ors. Vs. Tosh Apartments Private Limited & Ors. (supra), the effective decree could not be passed, as the respondent was the actual owner of the property in question, and the petitioners, in the whole proceedings, have not been able to establish their title over the said land.
19. Learned Senior Counsel for the respondents also relied upon para 41.3 of the precedent law of Vidur Impex and Traders Private Limited & Ors. Vs. Tosh Apartments Private Limited & Ors. (supra), as per which, the presence of Municipal Board would enable the learned court below to completely, effectively and properly adjudicate upon all the matters and issues, particularly the injunction part thereof, regarding the land (13 of 14) [CW-8272/2017] in question.
20. Learned Senior Counsel for the respondents vehemently submitted that the petitioners are the declared trespassers and are contesting a collusive proceeding with an intention of protecting their trespass over the land in question.
21. Learned counsel for the petitioners, in rejoinder, has denied the arguments made on behalf of the respondents stating that the petitioners would themselves be responsible for the decree passed in the suit pertaining to the execution of the sale deed and the result of the decree shall not affect the Municipal Board at all, as the decree would be only in pursuance of the sale deed, and if any right shall accrue to respondent No.4, then the same shall be independent of the decree and shall not affect the petitioners.
22. After hearing learned counsel for the parties and perusing the record of the case, alongwith the precedent laws cited at the Bar, this Court finds that the State and the Municipal Board, Nagaur have taken a categorical stand that the land in question vests in the Municipal Board by virtue of Section 68 of the Act of 2009, and the petitioners have not been able to provide any details of their title over the said land, and therefore, the execution of the sale deed would not attract the precedent law cited by learned counsel for the petitioners.
23. This Court also finds that it is a clear case where the petitioners have been declared to be the trespassers, and that being the position, it would not be appropriate for this Court to make any interference in the impugned order, which only provides (14 of 14) [CW-8272/2017] for impleadment of the respondent No.4 as party defendant in the suit, and if the said respondent is impleaded as party and puts its stand before the court, then it will certainly result into more effective and complete adjudication of the dispute.
24. This Court, after traversing through the record and the pleaded facts, is in complete agreement with the learned court below, as the complete, effective and proper adjudication of the matter and the issues, which pertained to a particular land in question, requires impleadment of Municipal Board, Nagaur as necessary party in the suit, which would also espouse the larger interest of justice.
25. In light of the aforesaid observations, no interference is called for in the present writ petition and the same is accordingly dismissed.
(DR. PUSHPENDRA SINGH BHATI)J.