Kanhaiyalal Mittal v. GNCTD

1. These writ petitions are filed by the petitioner seeking to quash the impugned order dated 07.05.2019 passed by respondent No.1-Financial 2019:DHC:7477 9' Commissioner dismissing the application of the petitioner under Order 1 Rule 10 CPC.

2. Background facts ofthe case are that one Mr.Nanhe Mai Jain was in physical cultivatory possession ofthe land in question. It is stated that on 28.01.1985,Mr.Nanhe Mai Jain executed a Will granting rights in the land m question in favour ofthe petitioner. The said Mr.Nanhe Mai Jain passed away on 28.03.1985. The Will was registered thereafter on 23.12.1985. Howevei,a mutation was carried out in favour ofrespondents No.2 and 3. The petitioner commenced appropriate proceedings before the Tehsildar regarding mutation ofthe property in his favour. The aforesaid order ofthe Tehsildar ordering mutation in favour of respondents No. 2 and 3 was upheld by the SDM, Narela on 29.04.2011. Against the said order, the petitioner has filed an appeal before the Deputy Commissioner being appeal No.62/2011.The said appeal is said to be pending adjudication.

3. In the meantime, respondents No. 2 and 3 filed a Revision Petition before the Financial Commissioner stating that on 28.04.2017 after much follow up the Halqa Patwari issued a Niatoni stating that the land is vested in the Gram Sabha. The Halqa Patwari gave no information as to under which order the said land is vested on the Gram Sabha.To the knowledge of the respondents,no proceedings under Section 81 ofthe DLR Act were ever initiated.

4. In the Revision Petition filed by respondents No. 2 and 3, the petitioner moved an application under Order 1 Rule 10 CPC seeking impleadment as a party. Learned Financial Commissioner by the impugned order dated 07.05.2019 dismissed the application of the petitioner holding that the Will in question was registered 9 months after the death of the testator Mr.Nanhe MaiJain.It wasfarther held thatthe petitiotteris nota bloodrelationofMr.NanheMaiJain.Learned FinancialCommissioneralso placedrelianceonthejudgmentoftheCivil Court(ADJ-LAC)whereitwas notedthatthepetitionerhasfailedtoprovethe Willasperlaw.

5. It IS quite clear that there are two parallel proceedings pending between the parties. One proceeding is pending before the Deputy CommissionerwherebytheorderofmutationinfavourofrespondentsNo.2 and3has been challenged.Second proceeding is pending beforethelearned Financial Commissioner where the mutation done in favour ofGaon Sabha has been challenged by respondents No. 2 and 3. It is the case of respondents No.2 and 3 that despite orders ofthe Tehsildar mutating the land in their favour, Idiatoni was wrongly issued in favour of the Gaon Sabha.

6. In my opinion,theleal dispute betweenthe petitioner and respondents No. 2 and 3 centies around the Will propounded by the petitioner dated 28.01.1985. An adverse inference was drawn by the Civil Court in the proceedings under Sections 30 & 31 of the Land Acquisition Act, 1894 where it was held that the petitioner has failed to prove the Will as no evidence has been led by way ofattesting witness

7. Learned counsel for the petitioner has clarified that an appeal has been filed against the said order which is pending adjudication before this court.

8. The issue regarding the rival claims oftitle claimed by the petitioner is being adjudicated upon before the Deputy Commissioner where the appeal filed by the petitioner is pending at present. The revision petition filed by respondents No. 2 and 3 cannot be converted into a title dispute between the petitioner and respondents No.2and 3inasmuch asthe dispute before the Financial Commissioner pertains to the alleged wrongful khatoni issued m favour of the Gaon Sabha. To that extent, in my opinion, the learned Financial Commissioner has rightly dismissed the application for impleadment ofthe petitioner as the petitioner is neither a necessary nor a proper party.

9. However, the petitioner is correct that in the impugned order the learned Financial Commissioner has needlessly gone into the merits ofthe contentions ofthe petitioner claiming title to the property in question. The observations made in the impugned orderin paras[6] and 7regarding the title claim ofthe petitioner will not prejudice the rights and contentions ofthe parties. It is also clarified that the outcome ofthe proceedings filed before the learned Financial Commissioner will not prejudice the rights and contentions of the petitioner before this court or before the court of the Deputy Commissioner inasmuch as the petitioner is not a party to the said proceedings.

10. The petitions stand disposed of. Pending applications, if any, also stand disposed of../Uj y JAYANT NATH,J OCTOBER 16,2019 rb