# Ratan Khanna & Anr v. Moradabad Development Authority, Moradabad

- **Citation:** (2019) 1 ILRA 1382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-01
- **Case number:** SECOND APPEAL No. 167 of 2014
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ratan-khanna-anr-v-moradabad-development-authority-moradabad-44416
- **Pages:** 7

## Headnote

of Law-O. I Rule 9 C.P.C.-Necessary
parties is a party, who ought to have
been joined as party and in whose
absence, no effective order could be
passed- Encroacher of Rasta cannot be
said to be necessary party - Moreover no
objection raised in w.s. either on or
before settlement of Issue-Defendent
waived their right in view of O. I Rule 13
C.P.C. - Suit cannot be dismissed for nonjoinder - Second Appeal succeeds -
Prohibitory Injunction issued against
Defendent. (E-1)

## Text

1382 INDIAN LAW REPORTS ALLAHABAD SERIES
Punjab and Haryana and although we have
confined our directions to the said two States
only yet other States would do well to reform
their system of selection and appointment to
make the same more transparent, fair and
objective, if necessary, by amending the
relevant LR Manuals/ Rules and Regulations
on the subject."
(Emphasis supplied)

36. In the light of the judgments of
the Supreme Court in Brijeshwar Singh
Chahal (supra) and Para 5.02 of the L.R.
Manual we would like to have issued a
direction to constitute a Committee but no
such relief has been sought by the
petitioner, hence we left this issue open.

37. For all the reasons mentioned
above, we find that the decision of the
State Government for appointment of 14
persons in terms of Paragraph 7.10 of the
L.R. Manual is arbitrary, illegal and
contrary to the provisions of the L.R.
Manual and the law laid down by the
Supreme Court in the cases referred
above. Accordingly, the writ petition is
allowed in terms of the operative portion
of the judgment of my learned brother.
-----------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2019

BEFORE
THE HON'BLE RAJIV JOSHI, J.

SECOND APPEAL No. 167 of 2014

Ratan Khanna & Anr. ...Appellants
Versus
Moradabad
Development
Authority,
Moradabad ...Respondent

Counsel for the Appellants:
Sri Kshitij Shailendra
Counsel for the Respondent:
Sri P.K.Singh.

A. Second Appeal-Substantial Question
of Law-O. I Rule 9 C.P.C.-Necessary
parties is a party, who ought to have
been joined as party and in whose
absence, no effective order could be
passed- Encroacher of Rasta cannot be
said to be necessary party - Moreover no
objection raised in w.s. either on or
before settlement of Issue-Defendent
waived their right in view of O. I Rule 13
C.P.C. - Suit cannot be dismissed for nonjoinder - Second Appeal succeeds -
Prohibitory Injunction issued against
Defendent. (E-1)

(Delivered by Hon'ble Rajiv Joshi J.)

1. This is plaintiffs' second appeal
filed under Section 100 CPC against the
judgment and decree dated 30.11.2013
passed by Additional District Judge,
Court No. 6, Moradabad, whereby Civil
Appeal No. 37 of 2012 filed by the
appellant-appellants
was
dismissed
affirming the judgment and decree dated
9.11.2011 passed by Additional Civil
Judge (Senior Division)/Judge Small
Causes Court, Moradabad in Original Suit
No. 1626 of 1994 (Ratan Khanna and
others
Vs.
Moradabad
Development
Authority), whereby the suit filed by the
plaintiff-appellants was dismissed.

2. Brief facts of the case are that
plaintiffs-Ratan Khanna, Prem Khanna
and Ram Nath Katyal filed a suit against
the Moradabad Development Authority
for
grant
of
permanent
injunction
restraining the defendant not to make
encroachment over the land of passage
(raasta) situated towards southern side
and also close the open doors shown by
letter G, H, I. As per the plaint averments,
plaintiff-1 Ratan Khanna and plaintiff-2
1 All. Ratan Khanna & Anr. Vs. Moradabad Development Authority, Moradabad
1383
Prem Khanna purchased the disputed land
situated in village Majholi, District
Moradabad in the year 1971 and 1979
through an agreement to sell from Smt.
Savitri Kaire and thereafter they became
the owner and in possession over the said
property mentioned in Schedule A of the
plaint. There is 20 feet wide common
passage from very beginning. Plaintiff-1
and 2 constructed a boundary wall shown
by letters A, B, C and D and open door
towards southern side, which has been
shown by letters G, H and I in the plaint
map. Plaintiff-2 sold some part of the land
shown by letters A, D, E, F from the land
shown by letters A, B, C, D to the plaintiff3 Ram Nath.

3. Subsequently, plaintiff-3 also
purchased the said land in the name and
style of M/s Poonam Enterprises, showing
himself to be a partner and opened a
factory
which
is
running
since
12.11.1992. It is further averred in the
plaint that there is no alternative way
(raasta) except the way shown towards
southern side, which is 20 feet wide since
1971. The land of gata no. 213 was
acquired by the State Government for the
defendant-Moradabad
Development
Authority but the land having area of 0.21
acre of the said gata no. 213 was left from
acquisition and therefore Smt. Savitri
Kaire remained the owner of 0.21 acre of
land of gata no. 213 and the plaintiffappellants have obtained the right to use
the said land as way (raasta) from her.

4. It is further stated in the plaint
that on 22.10.1994 at about 4.00 pm, the
officials of the defendant-Moradabad
Development Authority put their bricks
etc. over the passage in dispute and
intimated to the plaintiff-appellants that
the doors opened towards the raasta are
illegal, so these are being closed. The
plaintiff-appellants have informed the
defendant's officials that doors in dispute
were existed since 1971 i.e. much prior to
establishment
of
Moradabad
Development Authority, which clearly
indicated in the map, but the defendant
did not pay any heed and therefore, the
suit was filed.

The reliefs so claimed in the suit
are:

(i) for declaration that the
raasta in suit area 0.21 acre is free from
acquisition;

(ii) for issuance of prohibitory
injunction against the defendant or his
agent not to encroach over the way in suit
situated
in South
of the plaintiffs
properties and not to put any hindrance in
the egress and ingress and not to close the
door opening on the way in suit; and

(iii) issuance of mandatory
injunction to demolish the wall raised
during the pendency of the suit.

5.

The
defendant-Moradabad
Development Authority contested the suit
and filed its written statement (30/C)
wherein it is stated that there is no door or
raasta as alleged by the plaintiffs on the
disputed land. The total area of gata no.
213 was 5.58 acres, out of which 2.05
acre land was acquired by the defendant
and the defendant took the possession
over the same. It is further averred in the
written statement that after acquisition of
the land by the defendant, only one acre
land was left in gata no. 213, whereupon
the factory of the plaintiff exists and there
is no door opened towards East side or
South side. Some portion of the land of
the plaintiff situated towards Ease side of
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
the factory, is acquired by the defendant
and the rest portion of the land is towards
Southern side. There is no way of factory
of the plaintiff towards East or South. The
plaintiffs themselves want to create
hindrance in development work by
making
illegal
pressure
and
took
possession over the land acquired by the
defendant, in fact there is no raasta of the
plaintiffs' factory in these plots. Hence,
the plaintiffs suit is liable to be dismissed.

6. During the pendency of the suit,
plaintiff-3 Ram Nath Katyal died in June,
1998 and his legal heirs were not ready to
contest the suit and therefore, they were not
impleaded/substituted in his place. Plaintiff-1
Ratan Khann also died during the pendency of
the appeal on 4.1.2012 and prior to his death,
he had transferred his property in dispute to
his grandson, appellant-1/1 Pushkar Khanna
vide registered Will deed dated 30.9.2009,
who was substituted subsequently at his place
and necessary amendment/substitution in this
regard were incorporated in the plaint.

7. On the basis of the pleadings of
the parties, the trial court framed as many
as five issues, which follows as under:

"(i) Whether there is 20 feet
raasta over the disputed land and the
plaintiffs has easementary right on it;

(ii)
Whether
the
suit
is
undervalued;

(iii) Whether the court fees paid
by the plaintiffs is sufficient;

(iv) Whether the land in dispute
was acquired for the defendant and
possession was delivered to him; and

(v) Whether the plaintiffs are
entitled for relief in the facts and
circumstances of the present case."

8. After settlement of issues, the trial
court vide judgment and decree dated
9.11.2011 dismissed the suit with the finding
that in the revenue record, entry of raasta has
not been recorded over the land of plot no.
213 in the khasra and the factory is situated
over 0.82 acres of khasra no. 213 and the
plaintiffs have failed to prove the existence
of 20 feet wide raasta on the disputed land.
The trial court also recorded a finding that
land in suit had been acquired and the
possession of the same had been transferred
to the defendant.

9. Being aggrieved by the judgment and
decree passed by the trial court, the plaintiffs
filed Civil Appeal No. 37 of 2012, which was
dismissed on the basis of discussion made in
the body of the judgment and decree passed
by
Additional
Civil
Judge
(Senior
Division)/Judge Small Causes Court in
Original Suit No. 1626 of 1994 was set aside.

10. The lower appellate court
framed points of determination as per
provisions of Order 41 Rule 33 CPC,
which read as under:

"(i) Whether there is existed any
way of 20" wide in the Southern side of
the plaintiff's properties?

(ii)
Whether
that
Rasta
extinguished when the land was acquired
by
the
Moradabad
Development
Authority?

(iii) Whether the allottees of the
plots are necessary parties?"

11. The points of determination nos.
1 and 2 have been decided in favour of
plaintiffs holding therein that there exists
20 feet wide passage and the plaintiffs
have got right of easement by way of
grant from the original owner and the
1 All. Ratan Khanna & Anr. Vs. Moradabad Development Authority, Moradabad
1385
Moradabad
Development
Authority
would get right over those area, which has
been acquired by it and cannot get any
right beyond the acquired area of 2.58
acre and the raasta over plot no. 213
cannot
be
extinguished
even
on
acquisition of land by the Moradabad
Development Authority.

12. The lower appellate court while
considering point no.3 has recorded that
suit of the plaintiff-appellants is bad for
non-joinder of necessary parties and the
allottees, who raised some construction
over the strip of raasta were not made
parties in the suit in view of the Order 1
Rule 9 CPC. The finding so recorded by
lower appellate court with regard to points
of determination nos. 1 and 2 in paragraph
15 and 16 are quoted as under:

"15.
Thus,
from
foregoing
discussions, it is clear that there is no
reason to disbelieve the plaintiffs version
that they had given the pathway in dispute
by grant for their use as they had
purchased
the
properties
from
the
original owner and this right was given
even much prior to the acquisition made
by
the
Moradabad
Development
Authority. It is also apparently clear that
the Moradabad Development Authority
had acquired 2.58 acres of land out of
total area 3.58 acres of the plot no. 213
and
thus
Moradabad
Development
Authority would get rights only over that
much area and not beyond that. I fail to
appreciate as to how the summary
inquiries hold by the then Executive
Authorities specially when they were in
contradictions to the documents on
record, have been made basis of the
judgment by the learned Trial Court.
Similarly, I also fail to appreciate that the
entries in the revenue record would be
decisive for the adjudication of the
easementary rights between the parties.
Learned Trial Court committed error of
law on relying upon erroneous summary
inquiries reports conducted by Executive
Authorities and the entries of the
revenue/government records particularly
in case of deciding easementary right of
parties and thereby holding that there was
no way left for the plaintiffs.

16. Thus, the first point of
determination is decided in favour of the
plaintiff and I hold that there exists 20
feet wide way and the plaintiffs have got
right of easement by way of grant of the
original owner. "

13. The judgment and decree passed
by the lower appellate court is impugned
in the present appeal.

14. The appeal was admitted on
24.2.2014 on the following substantial
questions of law:

"1. Whether the Lower Appellate
Court was at all justified in dismissing the
suit for non-joinder of alleged necessary
parties, particularly when neither this
objection was taken in the written statement
nor was any issue framed in this regard
nor was any evidence led to this effect and
more particularly in view of the clear bar
contained under Order 1 Rule 9 of C.P.C.
which provides that a suit cannot be
dismissed for non-joinder of any party ?

2. Whether in view of the Order
1 Rule 13 C.P.P., the defendant having
not raised any objection either at or
before the settlement of issues, the suit
could be dismissed by the Appellate Court
for non-joinder of any party, though
defendant had waived his right, if any, to
raise objections in this regard ?
1386 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Whether the Lower Appellate
Court, having set aside the entire
judgment,
reasoning
and
findings
recorded by the trial court, was at all
justified in dismissing the appeal instead
of allowing the same?"

15. I have heard Sri Kshitij
Shailendra, learned counsel for the
plaintiff-appellants
and
Sri
Satish
Chaturvedi, learned counsel for the
respondent.

16. It was contended by learned counsel
for the plaintiff-appellants that the appeal was
admitted vide order dated 24.2.2014 and
lower appellate court was not at all justified in
dismissing the suit for non-joinder of
necessary parties, particularly when no
objection in this regard has been taken in the
written statement nor any issue was framed in
this regard and even no evidence was led to
this effect and in view of the bar contained
under Order 1 Rule 9 CPC, the suit cannot be
dismissed for non-joinder of necessary parties.

17. It was further further contended
by learned counsel for the plaintiffappellants that defendant never raised any
objection either in his written statement or
before the settlement of issues and
therefore, the defendant waived his right.
It was lastly contended that lower
appellate
court
set
aside
the
judgment/findings recorded by the trial
court but has not at all justified in
dismissing the suit for non-joinder of
parties.

18. On the other hand, learned
counsel appearing on behalf of defendantrespondent submitted that specific finding
has been recorded by the lower appellate
court that some wall has been raised by
the allottee over the strip of the raasta
existed at plot no. 213 and therefore, any
order passed in the suit will effect their
right and therefore, they are the necessary
parties and the suit has rightly been
dismissed by the lower appellate court for
non-joinder of necessary parties.

19. I have considered the rival
submissions so raised by learned counsel
for the parties and perused the record.

20.

The
only
question
for
consideration before this Court as to
whether the lower appellate court was
justified in dismissing the suit of the
plaintiff-appellants for non-joinder of
necessary parties particularly when no
objection was raised in this regard by the
defendant in its written statement and in
view of Order 1 Rule 9 CPC, which
provides that suit cannot be dismissed for
non-joinder of any party and further the
defendant had waived their right, if they
have not raised any objection with regard
to joinder of necessary party in view of
Order 1 Rule 13 CPC. For considering the
said question, Order 1 Rule 9 CPC as well
as Order 1 Rule 13 CPC are quoted as
under:

"9.
Misjoinder
and
nonjoinder- No suit shall be defeated by
reason of the misjoinder or non-joinder of
parties, and the Court may in every suit
deal with the matter in controversy so far
as regards the rights and interests of the
parties actually before it:

[Provided that nothing in this
rule shall apply to non-joinder of a
necessary party.]

13. Objections as to nonjoinder or misjoinder- All objections on
the ground of non-joinder or mis-joinder
of parties shall be taken at the earliest
1 All. Ratan Khanna & Anr. Vs. Moradabad Development Authority, Moradabad
1387
possible opportunity and, in all cases
where issues are settled, at or before such
settlement, unless the ground of objection
has subsequently arisen, and any such
objection not so taken shall be deemed to
have been waived."

21. From bare perusal of the
aforesaid provision, it is apparent that no
suit shall be defeated by a reason of
misjoinder or non-joinder of parties and
the court may in every suit deal with the
matter in controversy so far as regarding
the right and interests of the parties
actually before it and further in absence of
all the objections on the ground of nonjoinder and misjoinder of parties shall be
taken at the earliest possible opportunity
and in all cases were the issues are settled
at or before such settlement unless the
ground of objection subsequently arisen
and any such objection is not so taken
shall be deemed to have been waived.

22. The lower appellate court has
specifically recorded a finding that it
seems that the disputed wall had been
raised by the allottees over the strip of the
raasta. The lower appellate court had also
recorded a finding that there is a 20 feet
wide raasta existed over the land of plot
no. 213, which is out of acquisition and
over the said raasta, which is out of
acquisition, no land can be allotted to any
person and in fact, there is some
encroachment made by the allottee of
Moradabad Development Authority over
the said raasta for which they cannot be
said to be a necessary party.

23. Necessary party is a person, who
ought to have been joined as a party and
in whose absence no effective decree
could be passed at all by the court.

24. The persons, who encroached
the land of the raasta cannot be said to be
necessary parties in the suit and therefore,
the lower appellate court has committed
illegality while dismissing the appeal of
the plaintiff-appellants. Accordingly, the
questions
framed
are
answered
in
negative.

25. The lower appellate court is not
at all justified in dismissing the suit on the
ground of non-joinder of necessary parties
primarily, neither any objection in this
regard has been raised in the written
statement nor any issue in this regard has
been settled and the bar contained under
Order 1 Rule 9 CPC does not apply and
the suit cannot be dismissed for nonjoinder of any party and further in view of
Order 1 Rule 13 CPC, the defendant
failed to raise any objection either on or
before the settlement of issue and the suit
cannot be dismissed for non-joinder of
any party since, the defendant waived
their right in this regard.

26.

Accordingly,
the
appeal
succeeds and is, allowed. The decree
passed by the lower appellate court is set
aside to the extent it dismissed the appeal
and the suit filed by the plaintiff for grant
of permanent injunction stands decreed,
the prohibitory injunction is issued
against the defendant or his agent not to
encroach over the way (raasta) in suit
situated in the south of the plaintiffs'
property, not to put any hindrance in
ingress and egress and not close the door
opening on the way (raasta) of the suit
and further mandatory injunction issued
directing
the
defendant-Moradabad
Development Authority to demolish the
wall/encroachment, which was raised
during the pendency of the suit.
----------
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Second Appeal No. 74 of 1987

Mohd. Islam ...Appellant
Versus
Sri Shamshul Ansari &Anr. ...Respondents

Counsel for the Appellant:
Sri S.K. Vemra, Sri Bipin Lal Srivastava

Counsel for the Respondents:
Sri Kameshwar Nath Tripathi, Sri A.K.
Upadhyaya, Sri A.P.S. Rathore ,Dr.Vinod
Kumar Rai, Sri Ganga Singh, Sri K.S.
Rathor, Sri Manish Kumar Nigam, Sri
Rajeshwari Singh, Sri Shivendra Nath
Singh
A.
Second
Appeal
-
Substantial
Question of Law-Principle on adverse
possession laid down-Suit founded on
ownership-No pleading on adverse
possession
in
court
below-It
presupposes ownership of else and
person relying on it must not be owner,
but has title by prescription- Plea on
title
and
adverse
possession
are
mutually
inconsistent-Moreover,
possession however long not means
adverse to owner-It means hostile
possession in denial of title of true
owner-No
Substantial
Question
of
Law-Second Appeal lack merit. (E-1)

(Delivered by Hon'ble Sudhir Agarwal J.)

1. Heard Sri S.K.Verma, Senior
Advocate, assisted by Sri Bipin Lal
Srivastava, learned counsel for appellant,
Sri M.K.Nigam, learned counsel for
respondent.

2. This is plaintiff's appeal under
Section 100 of Code of Civil Procedure,
1908
(hereinafter
referred
to
as
"C.P.C.")arising from judgment dated
23.10.1986 and decree dated 10.11.1986
passed
by
Sri
R.M.Chauhan,
IVth
Additional District and Sessions Judge,
Ghazipur in Civil Appeal No.172 of 1982
whereby appeal has been allowed and
judgment of Trial Court dated 25.02.1982
and decree dated 05.03.1982 passed by
Sri
Prakash
Chandra
Mishra,
IInd
Additional
Munsif,
Mohamdabad,
Ghazipur, in Original Suit No.130 of 1979
has been set aside.

3. Trial Court had decreed plaintiff's
suit
granting
permanent
injunction
restraining defendants-respondents from
interfering in possession of plaintiff in
respect of house, A, B, C, D, E, F, G, H,
as shown in map appended to the plaint
and also hand over possession of disputed
property to plaintiff. It is this judgment,
which has been reversed by Lower
Appellate Court (hereinafter referred to
as "LAC"), as a result whereof plaintiff's
suit stands dismissed.

4. The facts giving rise to this appeal
in brief are that sole plaintiff Mohd. Islam
son of Tulai, resident of Bahadurganj,
Pargana Jahoorabad, District Ghazipur,
instituted Original Suit No.130 of 1979
vide plaint dated 03.05.1979 impleading
two defendants Shamshul Ansari son of
Khalil and Shamshul Haq Kunjada son of
Chetan
in
the
Court
of
Munsif
Muhammdabad,
District
Ghazipur
seeking permanent injunction restraining
defendant-1 from interfering in possession
and other rights of plaintiff in respect of
disputed house shown by letters A, B, C,
D, E, F, G, H in the map given at the
bottom of plaint. He further sought