SALIK SHUKLA Vs. BRAJ NANDAN MISRA AND OTHERS

JUDGEMENT

(1.) This is a Salik Shukla's second appeal against the concurrent decisions of the courts be low decreeing the suit of the plaintiff respondent Braj Nandan Misra for possession of a plot of land which he claimed as a Sehan appurtenant to his house. It is not necessary to describe the various transfers which ultimately led to the plaintiff purchasing the land from the District Board. He complained, however, that defendant Takeshwar Shukla and Rameshwar Pande had trespassed on the land in dispute and raised unauthorised constructions on it. These two defendants pleaded that they had no concern with the land which was in possession of two other persons Bhawati Pande and Salik Shukla who were co-defendants in the suit. The suit was contested by Salik Shukla who alleged that the land belonged to the plaintiff and the defendants had committed trespass. Salik Shukla has come to this court in Second Appeal.

(2.) Mr. Ambika Prasad, learned counsel for the appellant raised only one argument in support of this appeal He contended that the plaintiff's right to sue for possession was taken way after the passing of the U.P.Z.A and Land Reforms Act during the pendency of the suit. This argument was raised before the appellate court and rejected. The learned Judge observed that the land was apurtenant to the plaintiff's house as his sehan. It is common ground that the house is in the abadi of the village. Therefore, even after the passing of the Act the land continued to belong to him. It has been held by held by this court that a trespasser acquires no rights under Sec. 9 of the Act.

(3.) Moreover, the objection fails for another reason. The suit for possession was filed before the passing of the Z.A. and L.R. Act. Even if there had been a vesting of the interest in this land in the State, the plaintiffs right to sue would not be affected by this fact. Or. 22 R. 10, C.P.C. provides in effect that in cases of an assignment, creation or devolution of any interest during the pendency of a suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. It is well settled that though an assignee or a transferee or a person on whom the interest in the property has devolved can apply to be made a plaintiff, the court has a discretion to grant or refuse him permission to continue the suit and he can not ask to be substituted in the place of the plaintiff as of right, nor can he be compelled to make himself a party to the suit. It follows that the original plaintiff can continue the suit even after the transfer or assignment or devolution of interest. This principle can be extended to a case in which the interest of the plaintiff has vested in the State under the U.P.Z.A. and L.R. Act during the pendency of the suit. If the argument of the learned counsel for the appellant were to prevail, it will lead to continue the suit as a plaintiff and thus a defendant may be left in illegal possession of land to which he has no right or interest. On the other hand, if the original plaintiff is allowed to continue the suit, there can be no injustice as the dispute with the defendant will be decided on merits, and the question whether the plaintiff or the State is entitled to the possession of the land is a matter in between them and not the defendant.