Sargun Prasad Sah v. Mostt. Rama Devi And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7407 of 2014 ====================================================== Sargun Prasad Sah Son of Late Ayodhya Sah, Resident of- Madhay, P.O and P.S.- Rajaun, District- Banka .... .... Petitioner.
Versus
1. Mostt. Rama Devi Wife of Late Kartik Sah
2. Sri Manmohan Sah
3. Sri Shashidhar Prasad Sah
4. Sri Sita Ram Sah
5. Sri Dhananjay Sah All Son of Late Kartik Sah
6. Srimati Manorama Devi wife of Sri Paramanand Mandal and daughter of Late Kartik Sah All are resident of village Madhay, Police Station- Rajaun, Post- Rajaun, District- Banka
7. State of Bihar Through Collector Banka .... .... Respondents.
====================================================== Appearance :
For the Petitioner/s : Mr. S.P.Srivastava, Adv. Mr. Amit Bhushan , Adv.
Ms Anu Priyadarshini, Adv.
For the Respondent No.1: Mr. Ajay Kumar Singh, Adv. For the State : Mr. Kumar Manglam, Adv. A.C. to G.P. 15 ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT 10-03-2016 Heard Mr. S.P.Srivastava, the learned counsel appearing for the petitioner and Mr. Ajay Kumar Singh, the learned counsel appearing for the respondent 1st set. The learned counsel for the respondent no.7-State of Bihar has also appeared. Questioning the legal sustainability of the impugned order by which the appellate court below has granted the leave to the respondent 1st set to file appeal against the judgment and decree passed in T.S.No.38/2004, the present application under Article 227 of the Constitution of India has been
filed.
The fact has not been disputed by the parties to this application that the T.S.No.38/2004 was filed by the petitioner for declaration of title and confirmation of possession. In that suit the respondent no.7-State of Bihar was alone impleaded as defendant. It is also not in dispute that during the pendency of the said suit the husband of the respondent no.1 and father of respondent nos. 2 to 6 filed a petition under Order 1 Rule 10(2) C.P.C. on 02.11.2004, seeking their impleadment as intervener defendants. The said intervention application was dismissed on 25.05.2008 and the said order has attained finality between the parties as the same was not challenged thereafter. The T.S.No.38/2004 was decreed by judgment and decree dated 13.08.2013. The respondent 1st set thereafter has filed T.A.No.
158/2013 alongwith a petition seeking leave of the court for filing the said appeal as they were not parties in the decree appealed against them. By the impugned order the appellate court below has allowed the prayer of the respondent 1st set granting the leave as prayed to prefer the appeal. Mr. Srivastava, the learned counsel appearing for the petitioner , at the outset, has submitted that the decree passed in T.S.No.38/2004 will not affect the right, title and interest of the respondent 1st set, if any, over the suit land.
canvassed that if the decree under appeal in the court below is sought to be executed , if permissible in law, even in that situation also the same cannot be executed against the respondent 1st set as they are not parties to the decree and not bound by them. In this backdrop, it has been contended by the learned counsel for the petitioner that the respondent 1st set cannot be taken to be the person aggrieved by the decree passed in T.S.No.38/2004 and the impugned order passed by the learned court below is illegal and not sustainable in law in any manner.
Elaborating his submission, Mr.Srivastava, the learned counsel has further argued that once after the rejection of the prayer of the respondent 1st set to be impleaded as intervener defendants in the suit, it requires no determination now that they were found by the court to be not necessary or proper party to the suit. It has, therefore, been submitted that the respondent 1st set are not legally entitled to maintain the appeal against the decree passed in T.S.No.38/2004 in between the plaintiff and the defendant of that suit as that would definitely amount to circumventing the legal effect of the abovesaid order. It has also been posited that in any view of the matter, as the judgment and decree passed in T.S.No.38/2004 has not dealt with the case of the respondent 1st Set, the appeal filed by them would be a futile
appeal.
Mr.Singh, the learned counsel appearing for the respondent 1st set , however, has submitted that the respondent 1st set has got title and possession over the suit land and there is bonafide apprehension that the petitioner would enforce the decree obtained by them and interfere in the peaceful possession of the respondent 1st set over the suit land. It has been canvassed that in view of the fact that the plaintiffs have claimed to have acquired title by adverse possession over the suit land, the respondent 1st set are all the more entitled to maintain the appeal as they are themselves in actual physical possession over the suit land. It has also been submitted that the learned court below has rightly relied upon the decision in the case of Hardevinder Singh Vs. Paramjit Singh, AIR 2013 SC (Supp.) 873 holding that a person who is aggrieved by the decree can maintain an appeal against the same. The learned counsel for the State of Bihar has supported the impugned order.
After careful consideration of the matter and the submissions made on behalf of the parties, it is manifest that the T.S.No.38/2004 was filed by the plaintiff for declaration of his status over the suit land as occupancy raiyat and for declaration of title on the basis of adverse possession over the suit land for more
than 12 years and further for confirmation of possession and declaration that the survey entry for the suit land in the name of State of Bihar was null and void and not binding upon the plaintiffs. From the reliefs prayed in the said suit, it is evident that the plaintiff has chosen to claim the reliefs only against the State of Bihar and has framed the suit, as such, by impleading only the State of Bihar as party-defendant. It is also admitted fact that the respondent 1st set at one stage of the suit had filed a petition to be impleaded as intervener defendants but the same was rejected. The contention on behalf of the respondent 1st set that his title and possession would be affected by the decree passed in T.S.No.
38/2004 is not convincing for the simple reason that the said decree is evidently not binding upon the respondent 1st set as they are not claiming right, title and interest over the suit land either through the plaintiff or the defendant of the suit and further that they have the remedy available in accordance with law whenever the said decree is sought to be enforced against them. Though Section 96 or Section 100 C.P.C. does not specify the person(s) who alone can maintain the appeal but by judicial decisions it is by now settled that the person (s) in order to be entitled to prefer an appeal must be the person (s) aggrieved by the judgment and decree.
come to be identified as a legal grievance before the superior court against the judgment and decree directly and adversely affecting the enjoyment of the rights of the appellant(s). The principle has been succinctly laid down by the apex court in Banarasi Vs Ram Phal, A.I.R. 2003 SC 1989 as follows:
"8. Sections 96 and 100 of the C.P.C. make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal..........................." The apex court has reiterated the same principle in Baldev Singh Vs Surinder Mohan Singh, 2003(1) SCC 34 holding that „ a person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned. Their lordships have, still further, ruled as follows:
"14. It must be true that a decree obtained by fraud is a nullity. But the question as to whether a decree has been obtained by fraud or not is again a question which must be raised by a person who is interested in the subject-matter thereof and not at the instance of a person who is a busy body......................"
The inference, thus, is inevitable from the above dictums that a person having independent cause of action for his title and possession over the suit land cannot be included as a person aggrieved by the decree and thus entitled to prefer an appeal. The test which has been recognized and relied upon by the apex court in the case of Ramesh Hiranand Kundanmal V. The Municipal Corporation of Greater Bombay, JT 1999(2) S.C.116 to identify the claim of a person for impleadment as necessary or proper party in a suit, is also relevant and can be applied while considering the ambit and sweep of the entitlement of a person to prefer an appeal against the decree. It will be profitable here to take into notice the observation by their lordship in paragraph-14 of the said judgment as follows:
........................The only reason which makes it
necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon V Raphael Tuck & sons Ltd., (1956)1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England, (1950) 2 All E.R. 611, that the true test lies not so much in an analysis of what are the
constituents of the applicants‟ rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J. has stated:- "The test is „May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.‟‟‟ (emphasis supplied) It is, thus, evincible that the primary consideration before grant of leave to a person to maintain an appeal against the decree is to find out whether the decree would affect that person directly and prejudice the enjoyment of his present legal rights over the suit property. In this regard it would be worth noticing the categorical stand taken by the learned counsel for the petitioner that the right, title and interest of the respondent 1st set , if any, over the suit land subject matter of T.S.No.
38/2004 would not be affected in any manner by the decree passed in that suit. It has also been emphasized that precisely for this reason the earlier prayer by the respondent 1st set for their impleadment as parties in the suit was turned down as they were not found either to be necessary party or proper party in the suit.
espousing their own independent title and possession over the suit land which is in no way connected in any manner with the questions arising in the suit between the plaintiff and the defendant of T.S.No.38/2004. This fact has not been denied by the learned counsel for the respondent.
In the backdrop of above facts and reasons, this Court finds it difficult to envision that the respondent 1st set can be held to be person (s) aggrieved by the decree in order to be entitled to maintain the appeal against the decree to which they are not parties. The learned court below has passed the impugned order ignoring the established principles of law as well as the facts and circumstances of the case.
In result, this writ application succeeds and the impugned order is set aside.
(V. Nath, J) Nitesh/- U