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2019 DIGILAW 1110 (JHR)

Clarence Joseph Bhengra v. State Of Jharkhand

2019-06-11

SUJIT NARAYAN PRASAD

body2019
JUDGMENT Sujit Narayan Prasad, J. - This writ petition is filed under Article 227 of the Constitution of India whereby and whereunder the order dated 10.05.2016 passed by the learned Sub-Judge-I, Ranchi in Partition Suit No.85 of 2015 is under challenge, by which, a petition filed under Order I Rule 10 of the Code of Civil Procedure dated 01.07.2015, has been allowed by impleading the respondent No.3 as party-defendant to the aforesaid partition suit. 2. It is the ground urged by the petitioner before the trial court that under the customary law the respondent No.3 has got no right to take share over the said property who happens to be the sister of the respondent No.3 as also the petitioner and the respondent No.2 under Order I Rule 10 of the C.P.C. for her impleadment as partydefendant to the aforesaid partition suit but the trial court without appreciating the factual aspect of the matter and without looking to the customary law, has impleaded her as party, therefore, the aforesaid order is not sustainable in the eye of law. 3. Mr. Ankit Kumar, A.C. to G.P.-IV, learned counsel appearing on behalf of State-respondent has submitted that the order impugned not suffers from infirmity because merely on account of the impleadment, no prejudice will be caused to the petitioner and even if the customary law is in favour of the petitioner as also the respondent No.2 the same could be considered by the trial court while giving declaration with respect to the claim of the petitioner about reversioners. 4. Having heard the learned counsel for the parties and after looking to the factual aspect of the matter as has been impleaded in the writ petition as also finding recorded by the trial court in the impugned order, this Court has found that a partition suit has been filed by the petitioner and the respondent No.2 over the said property which has been procured by one Helen Bhengra. The respondent No.3 has filed a petition under Order I Rule 10 of the Code of Civil Procedure for her impleadment as party-defendant to the aforesaid title suit on the ground that the said property belonged to Helen Bhengra who is the sister of the respondent No.3 as well as the sister of the petitioner and the respondent No.2, who died spinster, therefore, her property was devolved upon the plaintiff, defendant and the petitioner being the next reversioners of Helen Bhengra and hence entitled to get 1/3rd share in the property. A rejoinder has been filed by the petitioner wherein it has been pleaded under the customary law pertaining to Munda community and in the matter of inheritance and succession of immovable properties they are governed by their own customary law under which females are excluded from inheritance of immovable property belonging Munda community and the same shall be inherited and succeeded by his/her nearest male agnates, therefore, in view of the customary law, the respondent No.3 has got no right to claim 1/3rd share over the property, hence the petition filed under Order I Rule 10 of the C.P.C. is not maintainable. 5. The trial court after considering the respective contention of the learned counsel for the parties, has allowed the petition under Order I Rule 10 of the Code of Civil Procedure against which the present writ petition has been filed by invoking the jurisdiction conferred to this Court under Article 227 of the Constitution of India. It is not in dispute that the provision made under Order I Rule 10 of the Code of Civil Procedure is a disciplinary power that can be exercised by the trial court it appears that any person is to be impleaded as party for adjudication of the dispute and the same can be impleaded as party to the proceeding. 6. It is evident from the finding recorded in the order impugned that as to whether there is unity of title and possession, other question involved with regard to law is that whether the female has got limited interest of maintenance in the property of the sister, therefore, the trial court considering the aforesaid question of fact and law, has decided to implead the respondent No.3 as party to the proceeding. The trial court after taking into consideration the aforesaid aspect of the matter, has allowed the petition filed under Order I Rule 10 of the C.P.C. in exercise of discretionary power conferred under the aforesaid provision, therefore, this Court is not coming in the way of discretionary power of the trial court since there is no infirmity in the same, rather after impleadment of respondent No.3 the question of unity of title and possession the vested interest of the female candidate would be adjudicated, therefore, refrains itself in interfering with the impugned order in exercise of power conferred under Article 227 of the Constitution of India. 7. In view thereof, this writ petition fails and it is dismissed.