Dismissed

Anupam Sahkari Awas Smiti,Lko.Thru. Authorized Azadar Mirza v. Addl. District Judge and Sessions Judge,Court No. 07, Lko. and 4 Others

Allahabad HC16 May 2024/2390/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging orders allowing the impleadment of a third party in a property dispute suit. The Court held that a party claiming ownership via ancestral inheritance is a necessary party under Order 1 Rule 10(2) CPC.

What did the court decide?

The writ petition challenging the impleadment order and revision dismissal was dismissed finding no infirmity in the lower courts' orders.

Anupam Sahkari Awas Smiti,Lko.Thru. Authorized Azadar… — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:37444

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Court No. - 7

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Case :- MATTERS UNDER ARTICLE 227 No. - 2390 of 2024 Petitioner :- Anupam Sahkari Awas Smiti,Lko.Thru. Authorized Azadar Mirza Respondent :- Addl. District Judge And Sessions Judge,Court No. 07, Lko. And 4 Others Counsel for Petitioner :- Syed Asaghar Mehdi,Manish Mani Tripathi

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Hon'ble Alok Mathur,J.

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Heard Sri Syed Asaghar Mehdi, learned counsel for the petitioner.

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In view of the proposed order notice to the respondents is dispensed with .

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By means of the present petition under Article 227 the petitioner has challenged the order dated 10.10.2022 passed by Additional Civil Judge (Junior Division), Court No.47, Lucknow wherein he has allowed the application under Order 1 Rule 10 preferred by opposite party n.s 2 to 4. The petitioner has also challenged the order dated 19.2.2024 passed by Additional District and Sessions Judge Court No.7, Lucknow in Civil Revision No.60/2023 (Anupam Sahkari Awas Samiti, Lucknow Vs. Meraj and others) wherein the revision preferred by the petitioner against the order dated 10.10.2022 has been rejected.

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Brief facts of the present case are that the petitioner had filed a suit for mandatory and permanent injunction before Civil Judge (Junior Division), Hawali, Lucknow in R.S. No.369 of 2019 (Anupam Sahkari Awas Samiti, Lucknow versus Dulhey Jani and others). Opposite party No.3 (Shaane Alam) had filed an application under Order 1 Rule 10 CPC read with 151 CPC before the trial court on 18.4.2019 praying that he may be impleaded as a defendant in the suit.

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The petitioner objected to the application for impleadment disputing the status of legal heir of Malka Jahan. The trial court by means of the impugend order dated 10.10.2022 has allowed the application under Order 1 Rule 10 CPC and directed the petitioner to implead the applicant as a defendant in the suit.

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Aggrieved by the aforesaid order the petitioner filed a revision bearing Civil Revision No.60 of 2023 under Section 115 CPC before District Judge, Lucknow which revision has been dismissed on 29.11.2022 and both the orders have been

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impugned in the present petition.

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In the application under Order 1 Rule 10 CPC opposite party No.5 had stated that the land in dispute in the present case i.e. khasra No.316 situate in Mohalla Ramganj Station, Daulatganj, Pargana Tehsil and District Lucknow belonged to his ancestors in the fasli year 1862 in the name of Nawab Malka Jahan. Opposite party N.5 had further demonstrated through family tree of recorded tenure holder from which it was manifestly evident that he was the legal heir of the recorded tenure holders. He further demonstrated that he was receiving wasika from the Sate Government and prima facie he was owner of the disputed land and on the basis of thee aforesaid documents the applicant prayed for allowing his application under Order 1 Rule 10 CPC and be impleaded as defendants in the said suit.

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The petitioner, on the other hand, had opposed the said application and the stated that petitioner's society had purchased the said land from the decedents of its owner Malka Jahain Sahiba subsequent to a compromise having been arrived at between the petitioner society and descendants of Malka Jahan Sahiba and it seems that he also claimed that he was legal heir of Malika Jahan Sahiba.

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The trial court as well as revisional court was of the view that it was necessary on behalf of the petitioner to demonstrate that the said land was purchased from a person who himself had ownership rights in the said property. The prayer that permanent injunction should be granted in favour of the petitioner/plaintiff can only be granted after he can demonstrate that he had rights over the said land.

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From the aforesaid discussions, it is clear that mandatory and permanent injunction was sought against defendants who are alleged to be encroachers upon the said land. In the aforesaid facts when a third party has moved an application under Order 1 Rule 10 CPC claiming himself to be the owner of the property and also produced certain material to prove that he is the owner of the said property on the basis of ancestral inheritance then it cannot be said that his rights can be considered only in suit proceedings instituted by him and not on the application moved under Order 1 Rule 10 CPC.

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While deciding the application under Order 1 Rule 10 CPC discretion has been vested in the court to implead a necessary party, whose presence the court may consider necessary in order to enable the court adjudicate upon the questions involved in the said suit.

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Considering that the petitioner claims to be the owner of the said land on the basis of sale deed executed by the descendants of Malika Jahan Sahiba while the applicant, who seeks impleadment also claims to be descendants of Malika Jahan Sahiba and on the aforesaid basis claims ownership then he has direct interest in the dispute and, hence, is a necessary party as provided under Order 1 Rule 10 (2) of CPC whose presence would certainly enable the court to arrive at a conclusion pertaining to ownership of the disputed land.

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In light of the above, this Court does not find any infirmity in the order passed by the trial court as well as revisional court. Accordingly, the petition being bereft of merits is accordingly dismissed.

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(Alok Mathur, J.)

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Order Date :- 16.5.2024

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RKM.

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Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

Anupam Sahkari Awas Smiti,Lko.Thru. Authorized Azadar Mirza v. Addl. District Judge and Sessions Judge,Court No. 07, Lko. and 4 Others

Case brief

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Anupam Sahkari Awas Smiti,Lko.Thru. Authorized Azadar Mirza v. Addl. District Judge and Sessions Judge,Court No. 07, Lko. and 4 Others

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