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2014 DIGILAW 649 (ORI)

Joginder Kaur v. Teresa Dungdung

2014-09-26

SANJU PANDA

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JUDGMENT : Sanju Panda, J. 1. Petitioners are the intervenors who have filed an application under Order 1 Rule, 10(2)of the Code of Civil Procedure to be impleaded as Defendants- in C.S. No. 48 of 2009 pending before the Learned Civil Judge (Sr. Divn.), Kuchinda. Their application was rejected by the Court below on 18.11.2011. Challenging the said order the present application was filed. The facts leading to the aforesaid suit as reveals from the record that Opp. Party No. 1 as Plaintiff filed the suit for declaration of right, title & interest & confirmation of her possession over the suit Schedule 'A' & 'B' land & for declaration that the sale deeds dated 8.1.1988 & 7.4.2007 executed by Defendant Nos. 1 & 3 as illegal & void & for permanent injunction. The plea of the Plaintiff is that the suit property belongs to one Natha Singh. He had one son namely, Bhagaban Singh & he died leaving behind his three sons namely, Ranbir, Mohan & Amar @ Amrik who constituted the joint family. Ranbir being the Manager & Karta of the family transferred the suit property by Registered Sale Deed dated 23.11.1970 in favor of the Plaintiff & delivered possession thereof. Accordingly the Plaintiff is in possession of the property from the date of purchased till date & developed the land making huge investment. Defendant No. 3 an outsider sold the suit Schedule 'A' land to Defendant No. 1 on 8.1.1988 & Defendant No. 1 had transferred the land to Defendant No. 2 in the year 2007. The Plaintiff came to know about the said illegal transfer on 10.2.2089 & filed the suit for the aforesaid relief. The Defendants appeared & filed their written statement in the suit. 2. Intervenor-Petitioners knowing about the pendency of the said suit filed an application under Order 1 Rule, 10(2) of the Code of Civil Procedure to implead them as Defendants. They claimed that they are the legal heirs of Natha Singh who has three sons namely, Makhan, Sadhu & Bhagaban. Makhan died issueless in the year 1991-92. Sadhu had two sons namely, Awatar & Santok & Bhagaban had three sons namely, Ranbir, Amrik & Mohan. They claimed that they are the legal heirs of Natha Singh who has three sons namely, Makhan, Sadhu & Bhagaban. Makhan died issueless in the year 1991-92. Sadhu had two sons namely, Awatar & Santok & Bhagaban had three sons namely, Ranbir, Amrik & Mohan. The intervenors are the wife & son of Awatar & as they are the successor in interest of the suit property & their right is going to be affected they should be impleaded as party to the suit. Awatar Singh died on 18.7.1997 & Santok died on 15.11.1996 being issueless. Plaintiff intentionally not impleaded the Petitioners as party to the suit to grab the suit land & Defendants are Plaintiffs henchmen. The Plaintiff falsely pleaded that Natha Singh has only one son namely, Bhagaban ignoring the branch of Sadhu Singh. The Plaintiff filed her objection to the said petition traversing the assertions made by the Petitioners & she has taken a specific stand that the Petitioners have no locus standi to be impleaded as party to the suit as Defendants & If they are claiming interest in the property they can file separate suit they have filed this application in connivance with Defendant No. 1 & made false assertions & this application was filed to deal with the matter on behalf of Defendant No. 2. Hence their petition is liable to be rejected. 3. The Court below after hearing the Counsel for the parties came to a finding that recorded tenant of suit schedule land is Natha Singh. The suit land recorded in the names of Makhnu Singh & Sadhu Singh who are sons of Natha Singh & in the names of Ranbir, Amrik & Mohan who are sons of Bhagaban Singh. All those persons were dead. Sadhu died on 5.9.1981 leaving behind his sons Awatar & Santok. Awatar died on 18.7.1997 leaving his wife Joginder & son Navjot as pleaded by the Petitioners. However no document with regard to legal heir of Sadhu Singh son of Natha Singh of Village Haripada in the district of Sambalpur has produced before the Court to ascertain that the present Petitioners are the legal heirs of said Sadhu Singh as such the Court below rejected the application. 4. However no document with regard to legal heir of Sadhu Singh son of Natha Singh of Village Haripada in the district of Sambalpur has produced before the Court to ascertain that the present Petitioners are the legal heirs of said Sadhu Singh as such the Court below rejected the application. 4. Learned Counsel for the Petitioners submitted that though the Court below accepted that the suit schedule land belongs to common ancestor Natha Singh who had three sons namely, Bhagaban, Makhnu & Sadhu & suit land recorded in the name of Makhnu, Sadhu & sons of Bhagan i.e. Ranbir, Amrik & Mohan however the Court below ignored the Petitioners claimed that they are the successor in interest of Sadhu Singh even though the Petitioners produced the Xerox copy of the School Leaving Certificate in the name of Avtar Sing, Driving Licence in the name of Avtar Singh which reveals that Avtar Singh is the son of Sadhu Singh. Therefore the Petitioners being the persons who have right over the property should have impleaded as party to the suit under Order 1 Rule 10 of the Code of Civil Procedure. He further submitted that the present Petitioners also filed the copy of the sale deed wherein Sadhu Singh purchased the property from Amrikh Singh son of late Bhagaban Singh which reveals that Sadhu Singh is the son of Late Natha Singh. In the said deed it was averred that Bhagaban Singh died twenty years ago & his brothers Makhan & Sadhu each of whom has 1/3rd equal undivided share & also-disclosed that Title Suit No. 16 of 1966 was filed for partition which was pending between the parties. In view of such materials the Court below should have considered the application. 5. Learned Counsel appearing for Opp. Party No. 1 Plaintiff submitted that in view of the pleadings of the parties rightly the Court below rejected the application as the Petitioners are no way concerned with the disputed land & in view of the pendency of the Title Suit for partition their right are being secured & they are not the necessary party to the present suit. Party No. 1 Plaintiff submitted that in view of the pleadings of the parties rightly the Court below rejected the application as the Petitioners are no way concerned with the disputed land & in view of the pendency of the Title Suit for partition their right are being secured & they are not the necessary party to the present suit. Plaintiff has categorically stated that the Defendant No. 3 Santok has no right, title & interest & possession over the case land as he has alienated the property in favour of Defendant No. 1 & Defendant No. 1 in turn sold the property to Defendant No. 2. The transaction between Defendant No. 1 & 2 is a sham transaction & there is no delivery of possession in respect of suit schedule land in favour of the vendee. The Defendants are tried to carve out a road over the middle portion of the suit schedule land to hamper the utility & prosperity of the land the Plaintiff forced to file the suit against them. The present Petitioners are not the necessary party to the said suit. Considering the above rival submission of the parties & the fact that the Petitioners have not produced any materials before the Court below that they are the legal heirs of Sadhu Singh, this Court disposes of the Writ Petition with an observation that in case the Petitioners file a better application with better particulars in such event their application shall be considered by the Court below in accordance with law after giving an opportunity of hearing to the parties. With the aforesaid observation the Writ Petition is disposed of.