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2007 DIGILAW 342 (JHR)

Sonal Diwan v. Miss Neeta Diwan

2007-04-20

M.Y.EQBAL

body2007
ORDER M.Y. Eqbal, J. 1. In this application under Article 227 of the Constitution of India the petitioner who is one of the defendants has challenged the order dated 7.3.2006 and 9.5.2006 passed by the sub-Judge, IInd, Koderma in Title Suit No. 17/01, whereby he has rejected the application filed by the petitioner for transposing her as plaintiff at the stage when plaintiff files petitioner for withdrawal of the suit. 2. The facts of case lie in a narrow compass: Plaintiff/respondent Nos. 1 and 2 filed partition Title Suit No. 17 of 2001 seeking preliminary decree for partition of 1/6th share each in the suit property fully described in the schedule of the plaint and also for appointment of survey knowing Pleader Commissioner for survey out of their share and preparation of final decree. In the said suit, petitioner was not impleaded as defendant although, she is sister of the plaintiff and have share in the suit property. When petitioner came to know about the suit, she appeared and filed application under Order 1, Rule 10 of the Code of Civil Procedure for adding her as defendant in the suit. The said application was allowed by the Court below and, thereafter, petitioner filed her written statement claiming that she is entitled to get 1/4th share of the suit property. The Court below framed issues and fixed the suit for hearing. But all of a sudden, plaintiff in connivance with other defendants filed another petition under Order XXIII, Rule 1 of the Code of Civil Procedure for withdrawal of the suit on the ground that suit will fell due to some formal defect. Petitioner filed rejoinder opposing the said prayer stating therein that just to defeat the right of the petitioner, plaintiff has filed petition for withdrawal of the suit. It was also stated by the petitioner that she came to know that the plaintiff and other defendants have entered into an agreement to sell the property in order to deprive the petitioner-co-sharer for getting her share. Petitioner, therefore, filed application under Order XXIII, Rule 1A of the Code of Civil. Procedure praying therein that she may be ordered to be transposed as plaintiff in the said partition suit. The Court below after hearing the parties, rejected the petition filed by the petitioner taking notice of Section 6 of the Hindu Succession Act. Petitioner, therefore, filed application under Order XXIII, Rule 1A of the Code of Civil. Procedure praying therein that she may be ordered to be transposed as plaintiff in the said partition suit. The Court below after hearing the parties, rejected the petition filed by the petitioner taking notice of Section 6 of the Hindu Succession Act. Since the Court below has committed error apparent on face of the record petitioner filed application for review of the order dated 7.3.20Q6 which was also rejected by the Court below. Hence, this application. 3. I have heard, learned Counsel for the parties and perused the record. 4. The undisputed fact as stated by the petitioner in the transposition petition is that one Baijnath Diwan died before the institution of the suit leaving behind plaintiff and defendant Nos. 1 to 4 and defendant Nos. 16 and 2 sisters as heirs and legal representatives. Petitioner is daughter of the defendant No. 1. The suit property is an ancestral property of the parties. Petitioner being grand-daughter claimed share in the suit property. 5. The Court below while passing the order on the transposition petition has virtually proceeded to decide the claim of the petitioner in the suit property. The Court below held that admittedly, petitioner is grand-daughter of Baijnath Diwan and she is not class-I heir and further that interest of Mitakshara Coparcener shall be deemed to have share in the property that would have been allotted to him if partition of property had taken place immediately before his death. 6. Prima facie, I am of the view that the Court below has not correctly appreciated the provisions of Hindu Succession Act, vis-a-vis Order XXIII, Rule 1-A of the Code of Civil Procedure. As noticed above, the Court below allowed the application of the petitioner under Order 1, Rule 10 of the Code of Civil Procedure on the ground that she being the sister of the plaintiff has interest in the suit property. In such circumstances, the Court below out not to have rejected application of the petitioner for transposing her as plaintiff after rejecting the application of the plaintiff for withdrawal of the suit. 7. It is well settled by catena of decisions that in the suit for partition, if the plaintiff wants to withdraw the suit, the defendant who wants to prosecute the suit should be transposed, as plaintiff. 7. It is well settled by catena of decisions that in the suit for partition, if the plaintiff wants to withdraw the suit, the defendant who wants to prosecute the suit should be transposed, as plaintiff. Reference may be made to the decision in the case of R. Ramamurthi Aiyar v. Rajeshwararao and in the case of the Basudeb Narayan Singh and Ors. v. Shesh Narayan Singh and Ors. . 8. Even in the suit for specific performance of contract when plaintiff after getting sale-deed in his favour wanted to withdraw the suit, prayer of the defendant for transposition as plaintiff on the ground of vested right in the suit property on the basis of sale-deed executed in his favour has been allowed to be transposed as plaintiff. Reference may be made to the case of Md. Muzahid v. John Wilson Zedak and Ors. . 9. A Full Bench of Patna High Court in the case of Sushila Devi v. Bishwanath Ram and Ors. (1992) 2 PLJR 495 was considering as to whether a propounder in a probate proceeding is entitled to withdraw suit as matter of right. Their Lordships observed: The legal position in a contested probate proceeding may be different. In a contested case i.e. the application which has been registered as a title suit, if the propounder wants to withdraw from the case or wants to abandon it or does not take any step and if there be any defendant who claims an interest under the Will, the Court may not in such a situation allow the propounder to withdraw the suitor to abandon it or dismiss the suit for default, it the person or any of the persons claiming an interest in the property under the Will applied to the Court to allow him to prosecute the case, the Court may in such a situation take recourse to Order 1, Rule 10 of the Code and transpose any such defendant as plaintiff and transpose the plaintiff as a defendant. There may be a case where the propounder having transferred his interest in the property does not take any interest in the suit or prays for withdrawing the suit or abandons it and, If any application is made by such a transferee to be added as a party, the Court should allow it by following the procedure of Order 1, Rule 10 of the Code, if a prima facie case is made out. 10. Coming back to the instant case, as noticed above, while deciding the petition of the plaintiff for withdrawal of the suit and petition of the defendant/petitioner for transposition, the Court below has entered into the merit of the case of the petitioner as to whether she under the law is entitled to share in the suit property. Admittedly, petitioner is the sister of the plaintiff and the member of the same family. On that basis, her application for intervention as defendant was allowed by the Court below. In that view of the matter, the Court below has committed serious error of law in rejecting the application of the petitioner for her transposition as plaintiff when the plaintiff wanted to withdraw the suit. Hence, the impugned order and subsequent order passed in the review petition cannot be sustained in law. 11. For the aforesaid reasons, this writ application is allowed and the impugned order passed by the Court below is set aside. Consequently, petition filed by the petitioner for her transposition as plaintiff is allowed. The Court below shall now decide the suit on merit. However, it is clarified that this Court, has not entered into the merit of the claim of the petitioner and the Court below shall decide the same on its own merit without being prejudiced by this order.