UMESH CHANDRA v. KAPILDEO NARAIN SINGH — 1968 DIGILAW 93 (PAT)

JUDGMENT B. N. Jha, J. - This application by the plaintiffs is directed against the order of the Subordinate Judge, dated April 12, 1967 allowing intervener Kapildeo Narain Singh to be added as a defendant in the partition suit. 2. The parties agree that the land in suit appertain to tauzi no. 3409, village Bikku of Gaya Collectorate and belong to Shri Shyamakant Lal and Shrikant Lal, sons of Shri Radha Kant Lal, who gifted away the property as well as mukarir interest to their sister Sabitri Devi since deceased under a registered deed of gift dated October 25, 1932 and since then Smt. Sabitri Devi remained in possession over the same. The suit land which formed the bakasht land of the aforesaid property or mukarir interest was in khas possession of Smt. Sabitri Devi till her death. According to the case of the plaintiffs, after the death of Smt. Sabitri Devi, her daughters Smt. Damayanti Devi, Smt. Jayanti Devi, Smt. Arundhati Devi and Smt. Renuka Devi (defendants 2 to 5) inherited the bakasht and other khas land of the mahal and came in possession of the same. The properties were being managed and looked after by their father Sri Damodar Prasad, during the life time of Smt. Sabitri Devi as well as after her death on behalf of his daughters (defendants 2 to 5). The Estate of defendants 2 to 5 vested in the State of Bihar and thereafter defendants 2 to 5 became statutory occupancy raiyats in respect of the bakasht lands possessed by them. They had 63.19 acres of khas lands fully described in Schedule A of the plaint. The plaintiffs claim to be the purchasers of •/12/- annas interest of Smt. Damayanti Devi, Smt. Jayanti Devi and Smt. Arundhati Devi (defendants 2 to 4) in respect of 51.93 acres as mentioned in Schedule B of the plaint and they claim to have come in possession of their purchased lands. It is also alleged by them that defendant no. 1 had purchased -/4/- annas interest in 49.02 acres described in Schedule C of the plaint out of the aforesaid lands mentioned in Schedule A from Smt. Renuka Devi (defendant no. 5) under a registered sale-deed, dated the 11th November, 1964. It is also alleged by them that defendant no. 1 had purchased -/4/- annas interest in 49.02 acres described in Schedule C of the plaint out of the aforesaid lands mentioned in Schedule A from Smt. Renuka Devi (defendant no. 5) under a registered sale-deed, dated the 11th November, 1964. After the sale by defendants 2 to 5 some lands of plots 496, 554 and 1551 remained in possession of defendants 2 to 5 and those lands the plaintiffs left out of partition, but in order to avoid difficulty, the entire land was mentioned in the plaint. The plaintiffs have since been in joint possession of the suit land and have been feeling inconvenience in enjoyment of the same. Hence, they have filed the present suit for partition of their -/12/- annas interest in Schedule B lands. 3. Defendants 1 and 5 have appeared in the suit and filed separate written statements. However, their defence is the same. They contend inter alia that the plaintiffs have got neither unity of title nor unity of possession over an inch of the land in partition and by their purchases they did not acquire any title or possession over any portion in the suit land. Their main defence is that after the death of Smt. Sabitri Devi, the entire suit properties were inherited by Smt. Renuka Devi (defendant no. 5). At the time of the death of Smt. Sabitri Devi, other three daughters, namely, Smt. Damayanti Devi, Smt. Jayanti Devi and Smt. Arundhati Devi (defendants 2 to 4) had been married and were well provided at the time of the death of their mother Smt. Sabitri Devi. Only defendant no. 5 was unmarried and, as such, as the properties were the Shtridhan property of Smt. Sabitri Devi, they were inherited by defendant no. 5 alone and she came in possession of the same. After the vesting of the Estate in the state of Bihar, defendant no. 5 became the statutory occupancy raiyat in respect of the entire bakasht land as described in Schedule A of the plaint. The other daughters never had any concern over the same and they did not become the raiyats in respect of those lands. After the vesting of the Estate in the state of Bihar, defendant no. 5 became the statutory occupancy raiyat in respect of the entire bakasht land as described in Schedule A of the plaint. The other daughters never had any concern over the same and they did not become the raiyats in respect of those lands. They characterised the sale-deed of the plaintiffs by defendants 2 to 4 as a sham and illegal transaction without consideration, as defendants 2 to 4 had neither title nor possession of any portion of the suit land. On these grounds they now resist the partition suit of the plaintiffs. 4. The plaintiffs filed an application for the appointment of a receiver in respect of the suit lands before the learned Subordinate Judge, but the learned Subordinate Judge by his order dated June 5, 1965 rejected the prayer of the plaintiffs for the appointment of a receiver in respect of the properties in suit. Thereafter, the plaintiffs have filed miscellaneous appeal no. 193 of 1965 in the High Court against the order of the court below refusing to appoint a receiver in the partition suit, which is still pending. It appears further that there has been a proceeding under Section 145 of the Code of Criminal Procedure between the parties in respect of the suit land in which Kapildeo Narain Singh is also a party. The entire land has been attached by the Magistrate. The parties including Kapildeo Narain Singh have filed written statements in that proceeding. 5. Kapildeo Narain Singh when learnt about the institution of the partition suit filed an application before the Subordinate Judge for making him a party-defendant in this suit. But as the records of the case had been despatched to the High Court, no order could be passed on his petition by the court below. Hence, Kapildeo Narain Singh filed an application in the High Court for being added as a party in the miscellaneous appeal itself. This Court directed the records of the case to be sent to the trial court to enable it to pass necessary order on the petition of Kapildeo Narain Singh. In those circumstances, the petition for being added as a respondent in the High Court in the miscellaneous appeal was withdrawn by Kapildeo Narain Singh. 6. This Court directed the records of the case to be sent to the trial court to enable it to pass necessary order on the petition of Kapildeo Narain Singh. In those circumstances, the petition for being added as a respondent in the High Court in the miscellaneous appeal was withdrawn by Kapildeo Narain Singh. 6. The main ground urged in the intervener's petition of Kapildeo Narain Singh, in his application under Order 1, Rule 10 was that he was vitally interested in the subject-matter of the properties in partition. According to him, the plaintiffs had no title and possession in respect of the suit land. The suit was filed by them simply in order to get possession. The properties of Smt. Sabitri Devi was being managed by Shri Damodar Prasad. As he was in judicial service, it was not possible for him to cultivate the land himself and hence, the intervener Kapildeo Narain Singh got the land on batai and had been cultivating since the life time of Smt. Sabitri Devi. After the death of Smt. Sabitri Devi, Shri Damodar Prasad was managing the property on behalf of his unmarried daughter Smt. Renuka Devi (defendant no. 5). During that time also, he was cultivating the land on batai and was dividing the produce with him. After the vesting of the Estate and after the death of Shri Damodar Prasad, the petitioner was dividing the produce with Smt. Renuka Devi and thus, he continued to be in possession of the same. Smt. Renuka Devi created complication by executing a registered sale-deed on November 11, 1964 in favour of Sitaram Singh (defendant no. 1) in respect of -/4/- annas share. This led to serious complication and there was a threat to his khas possession and as such, to avoid all future troubles, he took a registered deed on November 26, 1965 from Smt. Renuka Devi confirming permanent raiyat interest even in respect of -/12/- share. It was further alleged that there has been a proceeding under Section 145 of the Code of Criminal Procedure and the lands which are the subject-matter of the suit have been attached by the Magistrate. Intervener is a party in that proceeding and he has filed written statement asserting his possession in respect of the suit land and there was a possibility that defendant no. Intervener is a party in that proceeding and he has filed written statement asserting his possession in respect of the suit land and there was a possibility that defendant no. 1 may not contest the suit and therefore he prayed that the suit be decided in his presence by adding him as a party in the suit in order to avoid multiplicity of suits. 7. The plaintiffs filed a rejoinder to the allegations made in the intervener's application of Kapildeo Narain Singh. It was resisted on the ground that Kapildeo Narain Singh had neither title nor possession in respect of the suit land. He wanted to purchase -/12/- annas interest from defendants 2 to 4, but as he could not become successful he set up his son in law (defendant no. 1) to purchase -/4/- annas interest of Smt. Renuka Devi. According to them, Smt. Renuka Devi had only -/4/- annas interest in the property and other -/12/- annas interest belonged to defendants 2 to 4 and as such, the registered deed in favour of Kapildeo Narain Singh affirming his possession and his raiyat right in respect of -/12/- annas was a sham transaction. It was also asserted in their petition that the addition of Kapildeo Narain Singh as a party in the suit would convert the partition suit pure and simple into a title suit, and hence, he was not a necessary party in the suit and he should not be added in the suit. The learned Subordinate Judge after a careful consideration of the facts and circumstances on record, came to the conclusion that the presence of intervener Kapildeo Narain Singh was necessary before the court in order to enable, it effectively and completely to adjudicate upon and settle the question involved in the suit, and hence, he allowed the petition of the intervener and directed him to be added as a party defendant in this suit and allowed him to file written statement, by his order dated April 12, 1967. The plaintiffs have, therefore, come up in this Court. 8. Learned counsel for the petitioner submitted that the plaintiffs have brought the suit for partition which in its nature is a suit for partition pure and simple. The plaintiffs have, therefore, come up in this Court. 8. Learned counsel for the petitioner submitted that the plaintiffs have brought the suit for partition which in its nature is a suit for partition pure and simple. The plaintiffs did not make Kapildeo Narain Singh a party in this suit as he had no interest in the property and as such the plaintiffs should not be forced to litigate the case against Kapildeo Narain Singh whom they did not like to implead in this suit. Learned counsel also drew my attention to the provisions of Order 1, Rule 9 of the Civil Procedure Code which reads as follows: "No suit shall be defeated by reason of the mis-joinder 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". Hence, he submitted that the partition suit could be disposed of in presence of the co-sharers of the properties. Kapildeo Narain Singh does not claim to be a co-sharer with the plaintiffs and as such, he is absolutely not a necessary party in this suit. Hence, he submitted that the partition suit could be disposed of in presence of the co-sharers of the properties. Kapildeo Narain Singh does not claim to be a co-sharer with the plaintiffs and as such, he is absolutely not a necessary party in this suit. It is true that a party should not be forced to litigate against a person whom he does not like to implead in the suit, but in order to decide the case completely and effectively, the court has been given ample powers under the provisions of Order 1, Rule 10 (2) of the Civil Procedure Code which reads as follows : "The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any as person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the question involved in the suit, be added." Therefore, the court has to see in each case whether the presence of a person is necessary in order, effectively and completely, to adjudicate upon and settle all the questions involved in the suit and if he so finds, power is given to the court to add such person as a party to the suit either on its own motion or on the application by a person. 9. The argument of learned counsel for the petitioner that a party should not be forced to litigate against a party whom he does not like to implead in the suit was advanced in similar circumstances in (I) Chakori Mahton and others V. Mahadeo Singh and others (A.I.R. 1952 Patna 433), but it was repelled in that case. The learned Chief Justice observed as follows:- "The petitioners made an application to be added as defendants under Order 1, Rule 10, Code of Civil Procedure. The learned Subordinate Judge rejected the application observing 'If the plaintiffs do not want the applicants to be added as parties they cannot be forced upon them. The learned Chief Justice observed as follows:- "The petitioners made an application to be added as defendants under Order 1, Rule 10, Code of Civil Procedure. The learned Subordinate Judge rejected the application observing 'If the plaintiffs do not want the applicants to be added as parties they cannot be forced upon them. The applicant's interest, if any, will not be effected by any decision in this suit and it is not necessary to make them parties. I am of the opinion that the learned Subordinate Judge misdirected himself in rejecting the application. The real question for determination was whether the presence of the petitioners before the court is necessary in order to enable the court effectively and completely to adjudicate upon and settle all the questions involved in the suit." In this case, the court below has come to the conclusion that the presence of Kapildeo Narain Singh is necessary before the court in order to enable the court effectively and completely to adjudicate upon and settle all the questions involved in this suit. 10. Learned counsel for the petitioner further submitted that the addition of Kapildeo Narain Singh in the suit would change the nature of the suit. The plaintiffs suit is a suit for partition pure and simple in which the plaintiffs claim -/12/- annas interest in the properties to be partitioned as co-sharers of defendant no. 1, whereas Kapildeo Narain Singh does not claim to be a co-sharer. He claims as bataidar under ex-intermediaries and claims paramount title in the land sought to be partitioned. According to him the scope of the partition suit is limited and paramount title could not be allowed to be raised in a partition suit. Learned counsel for the opposite party, however, contended that Kapildeo Narain Singh claimed -/12/- annas interest in this suit. He also denies the title and possession of the plaintiffs and as such, his presence is necessary in the suit, as he is vitally interested in its result. In my opinion, the submission of learned counsel for the opposite party is well founded. He also denies the title and possession of the plaintiffs and as such, his presence is necessary in the suit, as he is vitally interested in its result. In my opinion, the submission of learned counsel for the opposite party is well founded. It is true that in a partition suit pure and simple question of title is not to be adjudicated, but if the plaintiffs bring suit on the allegation that they have got -/12/- annas interest in the property and they are in joint possession and if a party contends that in the properties sought to be partitioned the plaintiffs have got neither title nor possession in respect of the said property and the properties could not be available for partition, the court incidentally has got to decide the title of the plaintiffs even though the plaintiffs may not agitate the question of title in the plaint. Order 20, Rule 18 of the Code of Civil Procedure itself provides that the court may, if the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. Therefore, the court has to declare the rights of several parties interested in the property and decide the question of title. Rights in the properties of the parties cannot be declared unless all the parties who are interested in the properties are before the court. 11. Apart from this, defendants 1 and 5 have denied the title and possession of the plaintiffs in respect of the properties in suit. Therefore, even if Kapildo Narain Singh is not added as a party in the suit, the plaintiffs title and possession have got to be determined in this suit. In the intervener's petition, Kapildeo Narain Singh has asserted that the plaintiffs had no title nor possession in the properties in suit. Therefore, by the addition of Kapildo Narain Singh, no new issue will be decided in the partition suit. Whether the plaintiffs like it or not, the title and possession of the plaintiffs in respect of the suit land will have to be decided and, in my opinion, the nature of the suit will not change if Kapildeo Narain Singh is added as a party in the suit. Whether the plaintiffs like it or not, the title and possession of the plaintiffs in respect of the suit land will have to be decided and, in my opinion, the nature of the suit will not change if Kapildeo Narain Singh is added as a party in the suit. Learned counsel for the petitioner placed great reliance on the observations made in (2) Abdul Gafur & others V. Ali Main, Sub Registrar (A.I.R 1925 Calcutta 26) wherein it was observed that the parties should not be added in a suit for rent so as to alter its nature and scope and to transform into a suit for determination of complicated question of title of a land. It was further observed in that case that the court incidentally can decide the question of title. The title of the plaintiffs to receive the arrears of rent has got to be decided if the tenant denies the rights of plaintiffs to recover the rent from him. Whatever may be the consideration, a suit for rent and a suit for partition stand on different footing. In the partition suit, rights of parties have to be declared and ascertained, and the rights could not be declared unless all the persons who claim rights in the land are before the court. Learned counsel for the petitioner also submitted that one kind of suit could not be transformed into another kind of suit by adding some persons as parties to the suit and for that he relied on the decision in (3) Oh Ling Tee V. Awkinifre (11th Weekly Report 86), wherein it was held that the suit for the share of the plaintiff in the properties could not be transformed into an administrative suit. Learned counsel for the opposite party does not dispute this proposition. But according to him, addition of Kapildeo Narain Singh will not change the nature of the suit. Therefore, in my opinion there is no force in the contention of learned counsel for the petitioner that by addition of Kapildeo Narain Singh in the suit, nature of the suit will change. 12. Learned counsel for the opposite party relied on two decisions of the Supreme Court and submitted that in (4) Messrs. Therefore, in my opinion there is no force in the contention of learned counsel for the petitioner that by addition of Kapildeo Narain Singh in the suit, nature of the suit will change. 12. Learned counsel for the opposite party relied on two decisions of the Supreme Court and submitted that in (4) Messrs. Importers and Manufacturers Ltd. V. Pheroze Framroze Taraporewala and others (A.I.R. 1953 Supreme Court 73) in a suit for eviction the sub-lessee was considered to be a proper party so that he may guard the possibility that the lessee may not collude with the plaintiffs so as to defeat his rights. He submitted that the scope of Order 1, Rule 10 (2) of the Civil Procedure Code is well settled by the Supreme Court in (5) Razia Begum V. Sahebzadi Anwar Begum and others (A.I.R. 1958 Supreme Court 886). It was pointed out in that case that in a suit relating to the property in order that a person may be added as a party, he should have direct interest as distinguished from a commercial interest in the subject matter of the litigation. In this case, Kapildeo Narain Singh claims to have a direct interest in the property in suit. A proceeding under Section 145 of the Code of Criminal Procedure is already pending between him and the plaintiffs and others in respect of the suit properties wherein he has already filed a written statement. Therefore, it cannot be said that the discretion exercised by the court below has not been exercised properly. The court below after a careful consideration of the facts and circumstances of the case has come to the conclusion that the presence of Kapildeo Narain Singh is necessary before the court in order to enable it effectively and completely to adjudicate upon and settle all the questions involved in the suit and in my judgment he has rightly held so. No question of improper exercise of jurisdiction arises in this case. 13. For the reasons stated above, there is no merit in the application and, accordingly, it is dismissed with costs. Hearing fee Rs. 55/-. Application dismissed.