OM PRAKASH DUBEY Vs. TATA IRON

JUDGEMENT

(1.) The present writ petition has been filed for quashing of the order dated 02.02.2012 passed by the District Judge-II, Jamshedpur in Misc. Appeal No. 34 of 2007 whereby the order dated 15.09.2007 passed by the Munsif, Jamshedpur in Misc. Case No. 07 of 2007 has been upheld.

(2.) The factual background of the case as stated in the writ petition is that the Tata Iron and Steel Company Limited (respondent no. 1) filed Eviction Suit No. 262 of 1984 against Jamshedpur Cooperative Stores (the respondent no. 2) in the Court of Munsif, Jamshedpur in respect of Quarter no.H-2/55 situated at M-Road Bistupur, Jamshedpur (hereinafter referred to as "the rented premises") and got an ex-parte decree on 05.08.1989 against the respondent no.2. Thereafter the respondent no.1 preferred application for execution which was registered as Execution Case No.-03 of 1990. According to the petitioner, when his father came to know about the said execution case, he preferred an application dated 25.06.2007 under Order XXI Rule 101 read with section 151 of the Code of Civil Procedure (in short " the CPC") being Misc. Case No.07 of 2007 before the concerned court praying inter alia for dismissal of the aforesaid execution case on the ground that he had been in exclusive possession and enjoyment of the rented premises for more than 40 years and had perfected his right, title, interest and possession over the same by way of adverse possession. The said Misc. Case preferred by the petitioner's father was however dismissed vide order dated 15.09.2007. The petitioner's father being aggrieved by the said order preferred appeal being Misc. Appeal No. 34 of 2007 before the District Judge-II, Jamshedpur. In course of hearing of the said Misc. Appeal, the appellant (petitioner's father) died and the petitioner was substituted in his place vide order dated 04.03.2010. However, the said appeal was also dismissed vide impugned order dated 02.02.2012 on the ground of maintainability.

(3.) The learned counsel for the petitioner submits that the petitioner was in continuous possession of the rented premises since 12.08.1965 and was enjoying the same but the respondent no. 1 did not make him party defendant in the eviction suit and as such the said suit was liable to be dismissed due to mis-joinder and non-joinder of necessary party. It is further submitted that the learned courts below did not take into consideration that on preferring an application under Order XXI rule 97 or rule 99 of C.P.C., all the questions including that of right, title and interest in the property arising between the parties or their representatives to a proceeding relevant in the adjudication of the said application, are required to be determined by the court dealing with the application and not by a separate suit and for this purpose, the court, notwithstanding anything contrary contained in any other law for the time being in force, is deemed to have the jurisdiction to decide such questions. The appellate court ought to have taken into consideration that the petitioner was one of the necessary parties in the eviction suit as he was in possession of the same since long. It is also submitted by the learned counsel for the petitioner that the original court i.e Civil Judge (Junior Division-I), Jamshedpur vide order dated 15.09.2007 passed in Misc. Case No.07 of 2007, in fact, made adjudication of the dispute under Order XXI Rule 101 read with Section 151 of the CPC and as such the appellate court i.e. the District Judge-II, Jamshedpur committed serious error in rejecting the Misc. Appeal No.34 of 2007 observing that the order of the original court is not a decree and therefore the appeal is not maintainable. It is also submitted that it would be evident from the report of the Sheristedar that the application preferred by the petitioner praying that his right, title and interest should be investigated and decided, was placed before the court for hearing. Thus, it cannot be said that the application of the petitioner was taken up on the point of admission and subsequently rejected vide order dated 15.09.2007.