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2018 DIGILAW 1788 (JHR)

Thakur Mahto v. Chimni Mahatwain

2018-08-08

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioners are aggrieved of order dated 27.01.2018 passed in Title Appeal No. 19 of 2007 by which their application for impleadment in the pending appeal as party respondents has been rejected. 2. Plea raised by the petitioners is that the application for impleadment filed under Order I Rule 10(2) CPC must be decided on the guiding principles whether the applicants are necessary or proper party in the suit and at this stage merits of the claim of the interveners cannot be decided. 3. Title Partition Suit No. 13 of 2003 was instituted by Chimni Mahatawain claiming herself daughter of late Lutan Mahto for a preliminary decree for partition of the suit properties to the extent of half share for her in the suit schedule properties. In the partition suit Bipati Devi and Bikkhi Devi were impleaded as defendants. The plaintiff has asserted that the suit scheduled properties were recorded in the name of Loknath Mahto, Gopal Mahto and Tarni Mahto; Loknath Mahto and Gopal Mahto died issueless and Tarni Mahto had two sons Lutan Mahto and Churi Mahto. The petitioners have claimed that Tarni Mahto had two sons-Lutan Mahto and Churi Mahto and two daughters-Ajhola Devi and Munni Devi. The plaintiff claims herself daughter of Lutan Mahto, defendant no. 1 is wife of Churi Mahto and defendant no. 2-Bikkhi Devi is daughter of Churi Mahto. The defendants disputed that the plaintiff is daughter of Lutan Mahto. The genealogical table produced by the plaintiff was also partly disputed. The suit was decreed vide judgment dated 05.07.2007 and a decree was prepared, sealed and signed on 17.07.2007. 4. Against the judgment and preliminary decree in Title Partition Suit No. 13 of 2003 the defendants have preferred Title Appeal No. 19 of 2007. In the pending appeal an application for impleadment was filed by the petitioners on 29.09.2015 claiming their rights in the suit property through Ajhola Devi and Munni Devi. The appellants who were defendants in the partition suit admits that the petitioners are legal heirs and successors of Ajhola Devi and Munni Devi. 5. The petitioners were not made parties in the partition suit and the defendants never raised an objection on non-joinder of necessary parties and this fact would not operate as a ground against the petitioners to seek their impleadment in the title appeal. 5. The petitioners were not made parties in the partition suit and the defendants never raised an objection on non-joinder of necessary parties and this fact would not operate as a ground against the petitioners to seek their impleadment in the title appeal. The stand taken by the plaintiff that the applicants are not descendants of Tarni Mahto is an issue which has to be adjudicated after taking evidence in the pending appeal or in the partition suit; the defendants have also disputed claim of the plaintiff her being daughter of late Lutan Mahto. The contention that there is inordinate delay by the applicants to seek their impleadment and, that too, after the Land Acquisition Officer, Deoghar has rejected their claim for compensation by an order dated 25.05.2017 in Land Acquisition Case No. 25 of 2017-18 and therefore the application under Order I Rule 10(2) CPC was not maintainable, is liable to be rejected. In a partition suit appeal against the preliminary decree is a continuation of the suit and, if on facts, prima-facie it is found that the applicants are necessary or proper party, on the ground of delay impleaded in the appeal cannot be denied. Orders passed in the eviction suit and the order passed by the Land Acquisition Officer are not final words on the rights claimed by the applicants in the suit schedule properties. This rather shows that the petitioners are not strangers altogether. The suit scheduled properties comprised under JB No. 25 are vast extents of land description of which has been given in the schedule appended to the plaint; there are 9 schedules prepared by the plaintiff. There is nothing on record to suggest that the entire suit lands are subject-matter of the land acquisition case. 6. The petitioners who are also claiming through the common ancestor-Tarni Mahto, a claim which has been admitted by the appellants in Title Appeal No. 19 of 2007, prima-facie, are necessary party in the partition suit [refer: " Udit Narain Singh Malpaharia vs. Additional Member, Board of Revenue, Bihar & Anr , (1963) AIR SC 786"]. 7. The learned trial judge has committed a serious error in law by dismissing the application for impleadment of the petitioners on the ground that they have not been able to establish that they are legal heirs and successors of Ajhola Devi and Munni Devi. 7. The learned trial judge has committed a serious error in law by dismissing the application for impleadment of the petitioners on the ground that they have not been able to establish that they are legal heirs and successors of Ajhola Devi and Munni Devi. This would be an issue in the pending appeal and at this stage merits of the petitioners'' claim cannot be finally decided. For the same reason reliance placed by the trial judge on the orders passed in the eviction suit and the land acquisition case for rejecting the application for impleadment is held untenable. 8. In the above facts and for the reasons indicated hereinabove finding serious infirmity in the impugned order dated 27.01.2018, it is set-aside. The writ petition stands allowed. The petitioners shall be impleaded as party in Title Appeal No. 19 of 2007.