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2018 DIGILAW 825 (ORI)

Bibhuti Bhusan Mohanty v. Jagabandhu Mohanty

2018-11-30

A.K.RATH

body2018
JUDGMENT A.K. Rath, J. - This petition challenges the order dated 15.9.2018 passed by the learned 2nd Additional Civil Judge (Sr.Division), Bhubaneswar, whereby and whereunder, learned trial court has impleaded one Jagabandhu Mohanty as defendant. 2. The plaintiff-petitioner instituted the suit for declaration of title, for declaration that the order dated 10.10.2013 passed by the Commissioner of Endowment in O.A.No.3 of 2009 is illegal and permanent injunction. During pendency of the suit, one Jagabandhu Mohanty filed an application under Order 1 Rule 10 C.P.C. to implead him as a party. It is stated that he is the successor of the recorded marfatdar of deity Sri Sri Swapneswar Dev bije Pratapsasan. He filed O.A.No.3 of 2009 before the Commissioner of Endowments under Section 25 of the Orissa Hindu Religious Endowments Act, 1951. Thus he is a necessary party to the suit. The same was objected by the plaintiff. Learned trial court allowed the same. 3. Mr.S.K.Ray, learned Advocate for the petitioner submits that the intervenor is neither necessary or proper party. He is not the successor of marfatdar. He has no interest in the deity property. 4. The submission of Mr.Ray, learned Advocate for the petitioner, is difficult to fathom. 5. The distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another , (1963) AIR SC 786, the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 6. In Razia Begum v. Sahebzadi Anwar Begum and others , (1958) AIR SC 886, the apex Court held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property. 7. On the anvil of the decisions cited supra, the instant case may be examined. 8. Admittedly, the intervenor filed an application under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 before the Commissioner of Endowment. 7. On the anvil of the decisions cited supra, the instant case may be examined. 8. Admittedly, the intervenor filed an application under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 before the Commissioner of Endowment. According to him, he is the successor of the recorded marfatdar of the deity Sri Sri Swapneswar Dev bije Pratapsasan. He has direct interest in the subject matter of the litigation. 9. In view of the same, the impugned order does not suffer from illegality or infirmity warranting interference of this Court under Article 227 of the Constitution of India. The petition is dismissed.