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Jharkhand High Court · body

2015 DIGILAW 178 (JHR)

Satish Kumar Gupta v. Narbadeshwar Sahay

2015-02-05

SHREE CHANDRASHEKHAR

body2015
ORDER Aggrieved by order dated 26.08.2010 in Partition Suit No.02 of 2010 whereby, application under Order 1 Rule 10(2) CPC has been allowed, the present writ petition has been filed. 2. The brief facts of the case are that, the father of the respondent no.1 namely, Chandan Lal purchased land comprised in Plot Nos.51 and 53, Khata No.28 admeasuring about 2.89 acres in village Hansa and land in Plot No.162, Khata No.69 in village Harbhanga in a court auction sale and an absolute sale deed was executed in his favour on 09.09.1944. After the death of his father, the respondent no.1 came in possession of the said land. It is stated that in Insolvency Case No.14 of 1931, the aforesaid land was put in auction sale, which was purchased by the father of the respondent no.1. The respondent no.1 filed Misc. Case No.07 of 2005-06 against one Dinanath Prasad and Sitaram Sao for cancellation of illegal demand in respect of land in Plot Nos.51 and 53 in Khata No.28 and also in respect of land in Plot No.162 in Khata No.69. In the said case, Rajesh Kumar Gupta filed an application for adding him as party. From the application filed by the said Rajesh Kumar Gupta, the respondent no.1 came to know about Partition Suit No.02 of 2010 and therefore, respondent no.2 filed application dated 09.03.2010 under Order 1 Rule 10(2) CPC for his addition in the pending Partition Suit. 3. On 30.01.2013, when the matter was listed for hearing, notice was issued in the matter and this Court passed an interim order staying the operation of impugned order dated 26.08.2010. Order dated 06.05.2013 indicates that though, the respondent no.1 was validly served no one appeared on his behalf. On 21.01.2015, when the matter was listed before me, a direction was issued to the Registry to ascertain whether the respondents have been duly served or not. The office report dated 03.02.2015 discloses that all the respondents have been validly served and Vakalatnama on behalf of the deceased respondent no.5 and her legal heirs has been filed by Mr. Abdul Wahab, Advocate. Since, the partition suit was filed in the year, 2010 and this Court vide order dated 30.01.2013 stayed the operation of the impugned order, I am not inclined to adjourn the matter further. 4. Heard learned counsel appearing for the petitioners and perused the documents on record. 5. Abdul Wahab, Advocate. Since, the partition suit was filed in the year, 2010 and this Court vide order dated 30.01.2013 stayed the operation of the impugned order, I am not inclined to adjourn the matter further. 4. Heard learned counsel appearing for the petitioners and perused the documents on record. 5. The learned counsel for the petitioners relying on decision in “Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain & Ors.”, reported in AIR 1953 SC 521 and in “J.J. Lal Pvt. Ltd. & Ors. Vs. M.R. Murali & Anr.”, reported in (2002) 3 SCC 98 submits that the respondent no.1, who is claiming title with respect to a part of the joint family property cannot be added in a partition suit. In a partition suit, the main issue which has to be ascertained is the jointness of all the cosharers in the property and a person claiming right, title and interest on a different cause of action cannot be added as a party in a partition suit. 6. In “Kasturi Vs. Iyyamperumal & Ors.”, reported in (2005) 6 SCC 733 , the issue was whether a stranger to the agreement is a necessary party in a suit for specific performance of contract. It has been held by the Hon'ble Supreme Court that unless a party proposed to be added has direct and legal interest in the controversy involved in the suit, he cannot be made a party in a suit. It has been held that, the expression “all the questions involved in the suit” in Order 1 Rule 10 CPC does not include controversies, which may arise between plaintiffs and defendants inter se, or questions between the parties to the suit and a third party. It is well settled that in a partition suit, a pendente lite purchaser is a proper party and even a purchaser, who has purchased a part of joint family property from one of the cosharers may also be impleaded as party. However, in the present case, I find that the respondent no.1 is not a pendente lite purchaser nor he is a purchaser from one of the parties in the partition suit. He is claiming right, title and interest over a part of the suit land on the basis of an auction sale in which, absolute sale deed was executed in the name of his father. He is claiming right, title and interest over a part of the suit land on the basis of an auction sale in which, absolute sale deed was executed in the name of his father. In the Misc. Case No.07 of 2005-06 filed by him, one of the petitioners namely, petitioner no.4Rajesh Kumar Gupta has already moved an application under Order 1 Rule 10 CPC for his impleadment. The trial court has held that since there is a dispute between the parties with respect to the suit land, to decide and settle all the questions involved in the suit, it is necessary to implead the intervener respondent no.1 as a party. I find that the order passed by the trial court suffers from serious infirmity in law. For deciding the question involved in a partition suit, the respondent no.1invervener is not required to be added as party in the partition suit. As noticed above, the respondent no.1 is neither a purchaser pendente lite nor he is a purchaser from one of the parties to the partition suit. His claim over a part of the suit land is based on a sale deed dated 09.09.1944 executed in the name of his father. The validity of the sale deed and the claim of the petitioner by virtue of sale deed dated 09.09.1944 cannot be adjudicated in the partition suit. 7. In the result, impugned order dated 26.08.2010 is set-aside and consequently, application dated 09.03.2010 filed by respondent no.1 under Order 1 Rule 10(2) CPC is dismissed. 8. The writ petition stands allowed. Petition allowed.