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2004 DIGILAW 602 (PAT)

Anami Sharan Sinha v. Anup Kumar Sinha

2004-06-28

NAGENDRA RAI

body2004
Judgment 1. Heard learned counsel for the parties. 2. The intervenor-defendant/petitioner has filed the present application against the order dated 5.12.2001 passed by the Subordinate Judge IV, Ara in Title Suit No. 253 of 1996 by which he has rejected the application filed by the petitioner under Order 1 Rule 8(5) read with Section 151 of the Code of Civil Procedure for transposing him in place of the plaintiff who is not proceeding with the suit. 3. The plaintiffs-opposite party Ist Set filed a suit for partition with regard to properties detailed in the plaint. The plaintiffs case is that one Harbansh Singh had three sons, namely, Jagdish Prasad, father of defendant No. 1, Hit Narain Lal, father of the plaintiffs and Krit Narain Lal who died issueless. There was partition between the three brothers. Jagdish Prasad separated from the joint family whereas Hit Narain Lal and Krit Narain Lal remained joint. The wife of Krit Narain La! died during his life time and Hit Narain Lal died in 1966 and Krit Narain Lal in 1974. The property in the suit was purchased in the name of wife of Krit Narain Lal and after her death, Krit Narain Lal and Hit Narain Lal came in joint possession of the property. After death of Krit Narain Lal there was family dispute and in a family arrangement, it was decided that half share of Krit Narain Lal will go to the plaintiffs and half share will go to the defendants. Thus, the plaintiffs filed suit for 12 anas share in the property. 4. The defendants appeared and filed two separate written statements. One was filed by defendant No.1 Murli Prasad and other was filed by defendants No. 2 and 3 who are sons of Murli Prasad. According to their case, apart from three brothers, there was another brother, namely, Badri Narain and Badri Narain had one daughter, namely, Kalawati Devi. Badri Narain died 29 to 30 years ago and Kalawati Devi also died leaving behind her heirs who are necessary party in the suit. Hit Narain Lal and Krit Narain Lal never lived in jointness rather all the four sons of Harbansh Lal were separate. The property in suit was purchased by wife of Krit Narain Lal and after her death Krit Narain Lal married with one Lahaso Kunwar and Krit Narain Lal executed a Will in her favour. Hit Narain Lal and Krit Narain Lal never lived in jointness rather all the four sons of Harbansh Lal were separate. The property in suit was purchased by wife of Krit Narain Lal and after her death Krit Narain Lal married with one Lahaso Kunwar and Krit Narain Lal executed a Will in her favour. After death of Krit Narain Lal, Lahaso Kunwar executed deed of gift in favour of defendant No. 2 who is in possession. They further stated that the plaintiffs have no share in the property. 5. The case of the intervenor-petitioner is that late Harbansh Sahaya had five sons, namely, Satya Narain Lal, Jagdish Lal, Hit Narain Lal, Badri Narain Lal and Krit Narain Lal. There was no partition between the sons of Harbansh Sahay and all the five sons were joint. The suit land is self acquired property of Krit Narain Lal and after the death of his wife as well as Krit Narain Lal, the property devolved upon the brothers of Krit Narain Lal. Lahaso Kunwar was not the wife of Krit Narain Lal. The petitioner filed an application for being added as a party under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure and the Court below by order dated 8.6.1999 has allowed the petitioner and his other brothers to be added as party defendants in the suit. 6. During pendency of the suit, the plaintiffs and defendant Nos. 1 to 3 filed a compromise with a view to deprive the intervenors of their share in the property. The petitioner filed a petition for grant of injunction and then the defendants No. 1 to 3/opposite parties 2nd set denied that they have entered into compromise with the plaintiffs. However, the plaintiffs left the pairvi of the suit. Thereafter, the petitioner filed a petition for his transposition in the suit as a plaintiff as the original plaintiff has left the pairvi of the suit which has been rejected by the impugned order. 7. The Court below has rejected the petition on the ground that the case made out in the written statement by the intervenor-petitioner and his brothers is different than what has been made in the plaint and in view of the contradictory pleadings, the intervenor-defendant cannot be added as a party and his remedy is to file a separate suit. 8. The Court below has rejected the petition on the ground that the case made out in the written statement by the intervenor-petitioner and his brothers is different than what has been made in the plaint and in view of the contradictory pleadings, the intervenor-defendant cannot be added as a party and his remedy is to file a separate suit. 8. Learned counsel for the petitioner submitted that the labelling of provision under Order 1 Rule 8 of the Code of Civil Procedure was wrong one. As a matter of fact, it was petition under Order 1 Rule 10 of the Code. He further submitted that in a suit for partition the parties can be transposed in the category of the defendant and the plaintiff according to situation. The transposition is frequent in such suits and thus the Court below has committed material irregularity in exercise of jurisdiction in rejecting the prayer for addition of the petitioner. 9. Learned counsel appearing for the opposite parties submitted that though the suit is for partition but if the defendant is transposed as co-plaintiff that will result in amending the plaint according to his case and then there would be clash between the plaintiff inter se which cannot be allowed and accordingly the court below rightly rejected the prayer of the intervenor for transposition from the category of defendant to the category of the plaintiff. 10. Law is well settled that in a suit for partition, the transposition of a party is frequent event and the Court even suo motu can transpose the defendant to the category of the plaintiff as cause of action being the same, that is for partition of the properties. The Privy Council in the case of Bhupendra Narayan Sinha Bahadur vs. Rajeshwar Prasad Bhakat & others, reported in AIR 1931 Privy Council, 162 held that power under Order 1 Rule 10 for transposition of the parties is to be exercised by a Court for doing complete justice between the parties. 11. Thus, in case the plaintiff does not take interest in a suit for partition there was no difficulty in allowing the defendant to be transposed as plaintiff and the plaintiff as a defendant. 11. Thus, in case the plaintiff does not take interest in a suit for partition there was no difficulty in allowing the defendant to be transposed as plaintiff and the plaintiff as a defendant. However, the difficulty which arises in this case is that the case made out by the intervenor/defendant is different from the case set up in the plaint and as such the defendant, if can be allowed to be transposed as co-plaintiff, then the difficulty would arise as two conflicting claims cannot proceed together. However, as the main object of transposition is to do justice between the parties and to avoid multiplicity of the suit every effort should be made to see that the parties are not dragged to file another partition suit. 12. In this case, the Court below has found that the plaintiff is not taking any interest in the suit. The intervenor/defendant/ petitioner and others have been added as party after it has been found that they have interest in the suit land. In that case, rejecting the prayer of the intervenor will result in filing another suit. To avoid this situation, the proper course in the present case would be to allow the intervenor to be added as a plaintiff and the original plaintiff as a defendant. However, the written statement filed by the intervenor-petitioner should be treated as a plaint and he should be required to pay court fee etc. and the Court will proceed to dispose of the suit in accordance with law. 13. In the result, the impugned order is set aside and the Civil revision application is allowed with the aforesaid direction.