R.R.K. Trivedi, J. - (1.) IN this writ petition a caveat was filed on behalf of respondents no. 6, 7 and 8. On behalf of caveators a counter affidavit has been filed. Respondent no. 5 is represented by Sri K. B. Garg, learned counsel for Gaon Sabha and respondents no. 1 to 4 are represented by learned Standing Counsel. All the learned counsel for the parties have agreed that this writ petition may be disposed of finally at this stage.
(2.) PETITIONER Smt. Pan Kumari, by means of this writ petition, has questioned the legality of the orders passed by respondents no 1.2 and 3 rejecting the application moved by her husband late Sri Krishna Dev for impleadment in Suit No. 184 of 1990 under section 229-B of UP ZA and LR Act, (hereinafter referred to as Act) Kailash Nath Tiwari and others v. State of U. P. and another pending in court of Sub-Divisional Officer/Assistant Collector 1st Class, Gyanpur, district Varanasi. The facts giving rise to this writ petition are that respondents no. 6 to 8 filed suit no. 184 of 1990 on 27th December, 1990 for declaration of their rights over plot no. 768 area 2-11-18 bighas (old no. 1471, 72) that they are bhumidhar grove holders. They have prayed that the name of Gaon Sabha in respect of the aforesaid plot in dispute be deleted and they may be recorded as bhumidhars in the revenue papers. In this suit only State of U. P. through Collector and Gaon Sabha through Chairman of Land Management Committee, Ugapur, Tahsil Gyanpur, district Varanasi were impleaded as defendants. Late Sri Keshav Das husband of present petitioner filed an application on 26th March, 1991 for being impleaded as a party in the suit. It was supported by an affidavit of the same date. In his application, Krishna Dev stated that he is a member of Gaon Sabba, Ugapur and he is an agriculturist off the village Plot no. 768 of village Ugapur was reserved for public purposes in consolidation proceedings and was reserved for keeping manure pits. In revenue papers also the land in dispute is recorded for the aforesaid purpose. In paragraphs 4 and 5 it was stated that for the last more than 20 years he is using the land in dispute for manure pits and has thus acquired a legal right over the land in dispute and he has vested right in the same. It has been further pleaded that for effective adjudication and for complete and proper justice it is necessary that he may be impleaded as a party. If the suit is decided in his absence he may suffer irreparable loss and injury. This application was opposed by plaintiff respondents No. 6 to 8 by filing an objection and affidavit which are Annexures-3 and 4 respectively to the writ petition. The impleadment sought was opposed mainly on the ground that the plot no. 768 was not property of Gaon Sabha, Ugapur and it was never reserved for public purposes that is to be used as manure pits. It was also stated that the applicant Krishna Dev has never used the land in dispute for keeping manure pits. Application has been filed only to harass the plaintiffs. It appears that by order dated 9th April, 1991 Krishna Dev was directed to file documentary evidence if any in support of his application. Hearing of this application was postponed on some (fates. However Krishna Dev died on 30th June, 1991 before his application could be decided. Petitioner moved an application through counsel intimating the court about death of Krishna Dev and also sought herself and her one son and daughter to be substituted in place of Krishna Dev. This application was filed on 30th July, 1991. The respondent No. 3 on same day rejected the application saying that as Krishna Dev was not a party to the suit the applicants can not be substituted. However he permitted the heirs of Krishna Dev to adduce documentary evidence by 6th August, 1991. On 7tn August, 1991 the application moved by Krishna Dev was rejected saying that no documentary evidence has been filed for which time was allowed, it was also said that Gaon Sabha has already filed a written statement on 2nd February 1991 and it is obligation of the Pradhan to defend the right of Gaon Sabha. It was also said that there is no justification for impleading them as a party in the suit. Against the orders dated 30th July, 1991 and 7th August, 1991 two revisions were filed before Additional Commissioner which were decided by a common order dated 30th March, 1991 and the revisions were rejected as not .maintainable. It was also said by Additional Commissioner that as no relief has been sought by plaintiffs against Krishna Dev or his heirs and as they failed to adduce evidence in support of their rights the application has been rightly rejected. On question of substitution the learned Additional Commissioner also approved the view taken by Sub-Divisional Officer. Aggrieved by aforesaid orders the petitioner filed Revision No. 33 of 1991-92 before the Board of Revenue which has been dismissed by order dated 7th April, 1992. Hence this writ petition. The learned counsel for the petitioner submitted that the view taken by the revenue courts that the petitioner and her sons and daughter cannot be impleaded in place of Krishna Dev is erroneous. The application cannot be legally decided without bringing; on record the heirs of the deceased applicant. It is also submitted that without substituting them and without giving them status as a party to the application, they were allowed opportunity to adduce evidence. It has been submitted that the application moved by Krishna Dev for impleadment was independent proceeding by itself and on death of Krishna Dev his widow and other heirs ought to have been impleaded under Order 22 Rule 3 CPC. It has also been submitted that the courts below committed serious error of law by not giving opportunity to petitioner to lead evidence in support of the claim mentioned in the application.
(3.) SRI Yatindra Singh, learned counsel appearing for respondents no. 6 to 8 on the other hand, submitted that as no relief has been asked in the suit against Krishna Dev their impleadment has rightly been refused. It has been submitted that the plaintiffs are DOMINUS LITIS and no body could be impleaded against their wishes. The learned counsel for the respondents, referring to the provisions of Order 1 Rule 10 CPC submitted that the presence of the petitioner was not necessary for taking upon and settle all questions involved in the suit effectively and their impleadment has been rightly refused. Learned counsel for the respondents has placed reliance on the cases. Banarsi Das Durga Prasad v. Panna Lal Ham Richhpal, Oswal, AIR 1969, Punj. and Har. 57, Gonsolo De. Filonnoa Luis, v. Insoio Peada. AIR 1977, Goa. Dam. and Due, 4, B. Somaich v. Smt. Amina Begum, AIR 1976 AP 182, Smt. Bhagwanti v. Custodian General, AIR 1976, J. and K. 29, Narayan Chandra Gorai v. Matri Bhandar Pvt. Ltd. AIR 1974, Cal. 358. Ave considered the arguments advanced by the learned counsel for the petitioner and respondents and I hAve also perused the cases law cited, in this writ petition material questions for consideration are as under ;- (i) Whether the view taken by the courts below that the heirs of Krishna Dev could not be impleaded to prosecute the application moved by Krishna Dev is justified in law ? (ii) Whether the application for iimpleadment moved by Krishna Dev has been disposed of in accordance with law ?;