Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1502 (JHR)

Yugal Yadav @ Jiblal Yadav v. Shobha Bhakat

2019-08-29

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : This writ petition is under Article 227 of the Constitution of India, whereby and where under the order dated 11.08.2017 passed in partition suit no.246 of 2014 has been assailed by which the petition filed by the petitioner namely Yugal Yadav and Ors. dated 02.03.2015 under Order 1 Rule 10(2) read with Section 151 of the C.P.C. for impleadment as party, has been rejected, against which the present writ petition has been filed. 2. It is the case of the petitioners that a partition suit has been filed for partition of the suit property being partition suit no.246/14 in which he has filed a petition under Order 1 Rule 10 (2) read with Section 151 of the C.P.C for their impleadment as party to the proceeding on the ground that the land in question which was recorded as Gairmazaruwa Khas land of the ex-landlord namely Amrit Mahto holder of Khewet No.2 and he was coming in possession and under Khata No.52, Plot No.68, Total Area 52 decimal was recorded in the separate Kabajwari of Sheo Charan Lal, on which he has constructed his house and on his remaining land, he has constructed compound and Sheo Charan Lal was coming in peaceful possession and he was also paying rent to the ex-landlord Amrit Mahto. Sheo Charan Lal could not pay rent to the ex-landlord and in consequence thereof the said Sheo Charan Lal has surrendered the land to the ex-landlord and he has brought some part of the land of the plot no.68, and the house constructed on his khas possession and thereafter, the land has been settled in his favour and since then the petitioner is in possession. One Tahli Devi has died leaving behind three sons namely Rameshwar Yadav, Jugal Yadav and Prayag yadav and they came in possession over land the in question including the land of Khata No.52, Plot No.68, Area 24 decimal and Rameshwar Yadav has died leaving behind a son namely Bijay Kumar Yadav, who are the petitioner nos.1, 2 and 3 in the intervention petition. Therefore, the petitioner is claiming title over the land in question by virtue of settlement by the ex-landlord which prompted the petitioner to file a petition under Order 1 Rule 10(2) of the C.P.C. in the partition suit filed in between the plaintiff and the defendant to the said partition suit who are claiming the partition over the property in question by virtue of their claim, and in view thereof the partition of the suit property has been challenged on the ground that after the suit property has been purchased by one Smt. Uma Jaiswal by virtue of registered sale deed who has constructed various construction including the residential house and out-house and after the death of the said Uma Jaiswal, when the husband namely Babu Jyotish Narayan Jaiswal, the plaintiff and the defendant no.1 and daughter Asha jointly succeeded to the suit of the Uma Jaiswal and after sometime, Babu Jyotish Narayan Jaiswal has also died leaving behind the daughter Asha and son who are the only successors of the land of Uma Jaiswal and therefore, the said partition suit has been filed. 3. Learned counsel for the petitioner has submitted that he has got valid right and interest over the suit property in question and therefore, has filed a petition under Order 1 Rule 10(2) read with Section 151 of the C.P.C. for impleadment but the same has been rejected being held to be not maintainable which is under challenge in this writ petition inter-alia on the ground that the Order 1 Rule 10(2) of the C.P.C. provides for impleadment, if any party has got interest over the suit property in order to avoid multiplicity of proceeding and no order be passed in absentia of the interested party who has got interest over the suit property without considering the aforesaid fact, the impugned order has been passed, therefore, the same is not sustainable in the eye of law. 4. Mr. Kishore Kr. Mishra, learned counsel appearing for the Respondent has submitted that the petitioners want their impleadment in a partition suit and if they will be allowed, the partition suit will be converted into title suit and as such, the petition filed under Order 1 Rule 10(2) read with 151 of the C.P.C., is not maintainable in the facts and circumstances of the instant case. He further submits that if the petitioners have got any grievance, he should have filed separate title suit for declaration of right and title but having not done so, they are seeking impleadment as party to the instant partition suit if the same would be allowed, the partition suit will lose its nature of partition suit and it will become declaratory suit, therefore, the writ petition is fit to be dismissed. 5. Having heard the learned counsel for the parties and after appreciating their rival submissions, it is evident therefrom that the petitioners are claiming title over the suit property in question which is the subject matter of the partition suit no.246/14 which has been filed by the plaintiff and the defendant to the aforesaid suit for partition after the death of the title holder namely Uma Jaiswal claiming to be the legal heir. It is the admitted case of the petitioners that as yet there is no declaration of right and title declared in their favour by the competent court of law holding the petitioners a title holder to the suit property in question who have filed a petition under Order 1 Rule 10(2) of the C.P.C. for impleadment as party to the proceeding for a partition suit no.246/14. It needs to refer herein the provision of Order 1 Rule 10(2) of the C.P.C. which reads as hereunder:- “(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon the settle all the questions involved in the suit, be added.” 6. It is evident from the provision of Order 1 Rule 10(2) of the C.P.C. that the impleadment of party can be allowed in course of pendency of any proceeding if in absence of the aforesaid party, the proper adjudication of the suit is not possible. 7. It is evident from the provision of Order 1 Rule 10(2) of the C.P.C. that the impleadment of party can be allowed in course of pendency of any proceeding if in absence of the aforesaid party, the proper adjudication of the suit is not possible. 7. In the light of the aforesaid provision, the factual aspect of this case has been appreciated by this Court wherefrom, it is evident that the petitioners although are claiming title over the property in question rather they are claiming the exclusive title over the property in question while on the other hand, the respondents are claiming the partition of the suit property by virtue of the legal heirs of the said Uma Jaiswal now the deceased. The question which has been agitated by the petitioners about the exclusive title holder of the property in question cannot be the subject matter of partition suit. Even if the argument of the petitioner would be accepted, and if they would be allowed to be impleaded as party to the proceeding, since they are claiming themselves to be the title holder and if that would be done as has been agitated by the petitioner, it will nothing but will be lead to conversion of partition suit to the declaratory suit, therefore, while declaring the petitioners as stranger to the suit and holding by trial Court that the partition suit can be adjudicated even in absence of the petitioners, no illegality will be said to have been committed by the trial Court warranting any interference by this Court under Article 227 of the Constitution of India. 8. In view thereof, the writ petition fails and hence it is dismissed. 9. In consequence thereof, I.A.Nos.1525 of 2019 and 1527 of 2019 stand disposed of.