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2013 DIGILAW 164 (PAT)

Permanand Singh v. Sona Singh

2013-02-04

SHEEMA ALI KHAN

body2013
ORDER : Heard Counsel for the petitioner and the respondents. 2. This application has been filed by the petitioner who wants to be added as party in Title Suit No. 22 of 1994. His application under Order I Rule 10 of the Civil Procedure Code was rejected by Sub Judge V, Patna City on 03.08.2012. 3. The plaintiff’s case is that he has a right and title over the suit property measuring 1 acre 6 decimals appertaining to plot no. 4744 khata no. 215 situated in Patna City Chowk within the district of Patna. The petitioner claims that the land in question was purchased by one Hema Mahto and Beehan Mahto from Mahabir Bhagat and Kali Charan Mahto through registered sale deed after partition of the property in the family of Bachan Mahto. The plaintiff claims that he has title over title plot no. 4744 measuring an area of 1 acre 6 decimals of Schedule-VI after acquisition of 25 decimals of land in plot no. 4744 through Land Acquisition Case No. 55 of 1978-79, out of the total area of 1 acre 31 decimals. 4. It is the specific case of the plaintiff that one Kameshwar Singh Yadav had got his name mutated in the revenue records. Kameshwar Singh Yadav is the son of Satyanand Gope, Satyanand Gope is the son of Bansidhar Gope. The intervenor-petitioner before this Court claims that he is also the son of Bansidhar Gope and as such, he is necessary party in the suit. 5. Counsel for the respondents, on the other hand, however argues that he has not claimed any relief against the intervenor-petitioner. He is also aggrieved by the order passed in the mutation proceeding in favour of Kameshwar Singh Yadav. 6. On the facts aforesaid, it is apparent that the plaintiff in this case is claiming title and possession over the lands in question and has made a prayer for temporary injunction against the defendant from interfering with the possession of the plaintiff on the suit lands, injuncting them from uprooting the harvested wheat crops and transferring the property of the suit land during the pendency of the suit. 7. The facts would also reveal that it is not a case where the plaintiff is denying or accepting the right and title of the intervenor-petitioner with respect to the lands which belongs to Bansidhar Gope. 7. The facts would also reveal that it is not a case where the plaintiff is denying or accepting the right and title of the intervenor-petitioner with respect to the lands which belongs to Bansidhar Gope. It is obvious that if the intervenor-petitioner has any claim, it could only be restricted to the family of Bansidhar Gope and as such, it cannot be said that he would be affected by the present suit. The case of the intervenor-petitioner would be that the name of Kameshwar Singh Yadav has wrongly been recorded in the Records of Right as the land in question is part and parcel of the joint family property. The case of the intervenor-petitioner is seeking to put up has no connection or anything to do with the present suit. Besides which, it has been consistently held by all Courts and specifically by our Court in the case of Devendra Prasad Sah and Another vs. Lakshmi Sao @ Lakshmi Sah and Others [ 2012 (3) PLJR 277 ], that the plaintiff is the dominus litis and he cannot be compelled to fight his case against the person who he is not claiming any relief. 8. Counsel for the petitioner has referred to the decision in the case of Savitri Devi vs. District Judge, Gorakhpur and others [ (1999) 2 SCC 577 ]. This was a suit for a decree of maintenance and for creation of certain charges over the ancestral property of the family. The facts disclose that the dispute arose in the suit as to whether the 1st defendant in the suit was party to the order on the injunction made by the Court on 18.08.1992. The proceeding for punishing him for contempt was pending. The plea raised by him that the 1st defendant had played fraud not only against him but also against the Court, which would have to be decided before it can be said that the sales effected by defendant were in violation of the orders of the Court. The Apex Court held that the plea raised by respondent nos. 3 to 5 that they were bonafide transferees for value in good faith, would have to be decided before it can be held that the sales in their favour created no interest in the property. The Apex Court held that the plea raised by respondent nos. 3 to 5 that they were bonafide transferees for value in good faith, would have to be decided before it can be held that the sales in their favour created no interest in the property. The questions needed to be considered at the stage of the compliance under Order I Rule 10 of the Civil Procedure Code or in the contempt proceedings. In such circumstances, the Supreme Court held that the case of respondents 3 to 5 have to be considered and they ought to be impleaded as party. In the present case, the petitioner may or may not have an interest in the property, but as no relief has been claimed against him, he could only raise a claim by filing a partition suit, the scope of which is very different to the present suit. 9. Counsel for the petitioner has further referred to the decision of the Supreme Court in the case of Amit Kumar Shaw and Another vs. Farida Khatoon and Another [(2005) 2 SCC 403]. The facts indicate that the case was for a declaration of title. The transferee pendent lite wanted to be added as party in the suit. The application was rejected up to the High Court to be adjudicated in the Supreme Court in this case. While considering the relief sought in the suit and the case made out by different parties, the Supreme Court came to a conclusion that “a transferee pendent lite can be added as a party if his interest in the subject matter in the suit is essential and not just peripheral”. On the basis of the pleadings and the fact that the intervenor-petitioner showed that he would be substantially affected by the decision in the suit, consequently the Apex Court held that in such circumstances, he could be added as party. In the present case, no relief has been claimed against the petitioner and the petitioner cannot get his share decided in the present suit. As such, the cases cited by the petitioner are clearly distinguishable from the facts of the present case. 10. In conclusion, this Court finds that there is no illegality in the order impugned. This writ application is accordingly dismissed.