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2011 DIGILAW 363 (JHR)

Pradeep Kumar Agarwalla v. Ajoy Kumar Roy

2011-04-25

DHIRUBHAI NARANBHAI PATEL

body2011
ORDER D.N. Patel, J. 1. The present writ petition has been preferred by the original Plaintiffs against an order passed by the Munsif- I, Dhanbad, dated 20th May, 2007 in Title Suit No. 246 of 2005, which is at Annexure 4 to the memo of petition, whereby, the earlier order, passed by the very, same Court dated 17th January, 2007 (Annexure 3 to the memo of petition) has been recalled. Initially an application, preferred by the Petitioners (original Plaintiffs) to call upon the Defendants to give the name of the legal heirs of one Sri Gunindra Nath Choudhary, was allowed, but, later on, this very application is ordered to be reheard. 2. Learned Counsel for the Petitioners submitted that once the application is allowed, another order cannot be passed i.e. the impugned order cannot be passed for further hearing of the said application vide the order at Annexure 4 to the memo of petition and, therefore, it is prayed by the learned Counsel for the Petitioners that the impugned order deserves to be quashed and set aside. 3. Learned Counsel for the Petitioners (original Plaintiffs) has pointed out in detail, what is the dispute between the parties in the Title Suit, which has been reflected in paragraph No. 5 of the memo of petition and submitted that the names of the legal heirs of Gunindra Nath Choudhary will be very much necessary, so that if the suit is allowed, there may not be any difficulty in execution of the decree. This aspect of the matter has not been properly appreciated by the learned trial Court while passing the impugned order and hence, the impugned order deserves to be quashed and set aside. 4. Though the Respondents have been served with notices, nobody appears on their behalf. 5. Having heard learned Counsel for the Petitioners and looking to the facts and circumstances of the case, I hereby quash and set aside the impugned order, passed by the learned Munsif-I, Dhanbad, dated 20th May, 2007 in Title Suit No. 246 of 2005 (Annexure 4 to the memo of petition), mainly for the following' facts and reasons: (I) The present Petitioners are the original Plaintiffs, who have instituted Title Suit No. 246 of 2005 and the Respondents are the original Defendants. (II) Looking to the facts and circumstances of the case, it appears that the Plaintiffs are claiming their right, title and interest in the property, in question, as stated in paragraph No. 5 of the memo of petition from Furki Mahtain, Bhikhni Mahtain, Sachidanand Sarkar, Bhukhal Mochi and Ram-chandra Agarwalla. (III) The original Plaintiffs are the legal heirs of Ramchandra Agarwalla whereas the Defendants are claiming that original owners of the suit property are Furki Mahtain, Bhikhni Mahtain and Sachidanand Sarkar. (IV) It is a case of the original Defendants that the registered sale deed dated 5.2.1954, whereby, the property had been sold away by Sachidanand Sarkar to Bhuklal Mochi was cancelled by another deed of cancellation dated 21st January. 1958. Thus, Sachidanand Sarkar remains the ownership even for the year, 1958 onwards. Thereafter, said Sachidanand Sarkar sold away the property by registered sale deed dated 26th March, 1964 to one Sri Gunindra Nath Choudhary. Original Defendant No. 2 (Respondent No. 2 herein) is the son of Gunindra Nath Choudhary and he has executed a power of attorney in favour of Defendant No. 1, who is Respondent No. 1 in this writ petition. (V) The case of the Defendants came in light upon filing of the written statement and, therefore, it was very much necessary for the original Plaintiffs to give an application to know the names of the legal heirs of Gunindra Nath Choudhary, because they are to be now joined as party Defendants, so that if at all the suit is decreed in favour of the Plaintiffs, there shall be No. difficulty in passing the judgment and decree. (VI) In the background of the aforesaid facts of the case, an application was given by the original Plaintiffs to call upon the Defendants to give the names of the legal heirs of deceased Gunindra Nath Choudhary. This application was allowed by the learned trial Court vide order dated 17th January, 2007 at Annexure 3 to the memo of petition. (VII) It appears that even though the aforesaid application preferred by the original Plaintiffs was allowed vide order dated 17th January, 2007, the learned trial Court by another order dated 20th May, 2007 again passed an order for further hearing of the said application (order at Annexure 4 to the memo of petition), which is the impugned order. (VII) It appears that even though the aforesaid application preferred by the original Plaintiffs was allowed vide order dated 17th January, 2007, the learned trial Court by another order dated 20th May, 2007 again passed an order for further hearing of the said application (order at Annexure 4 to the memo of petition), which is the impugned order. (VIII) It appears that the learned trial Court has lost sight of the fact that once the application of the original Plaintiffs has been decided, the said order cannot be modified or recalled without an application, preferred by the party to the dispute. Secondly, the trial Court has also lost sight of the fact that the names of the legal heirs of deceased Gunindra Nath Choudhary will be very much necessary for bringing them on record. Defendant No. 2 is the son of deceased Gunindra Nath Choudhary and is claiming ownership through his father and therefore, all the legal heirs of deceased Gunindra Nath Choudhary ought to have been joined as party Defendants to the suit. This aspect of the matter has not been properly appreciated by the trial Court. 6. In view of the aforesaid facts, I hereby quash and set aside the order, passed by the learned trial Court i.e. Munsif- 1, Dhanbad, dated 20th May, 2007 in Title Suit No. 246 of 2001 and I hereby direct the Respondents to give the names of the legal heirs of deceased Gunindra Nath Choudhary, so that the Plaintiffs may prefer appropriate application for joining them as party Defendants to the suit, who are vitally interested in the suit property and the outcome of the suit. 7. With the aforesaid observations, this writ application is hereby allowed and disposed of. Application allowed.