Ashok Bose v. Ravindra Kumar Sinha, S/o Late Shiv Nandn Prasad
2019-01-09
SUJIT NARAYAN PRASAD, SUJIT NARAYAN PRASAD
body2019
DigiLaw.ai
JUDGMENT : 1. The writ petition is filed under Article 227 of the Constitution of India, wherein the order dated 04.06.2018 (Annexure-4) passed in Title Suit No.08/2013 relating to application filed under Order-1, Rule 10(2) read along with Section 151 of the Code of Civil Procedure has been rejected. 2. The brief facts of the case of the petitioner as per the pleading made in the writ petition is that the respondent no.1 has instituted a suit being Title Suit No.08/2013 against the respondent no.2 claiming right, title and interest over the portion of land admeasuring 0.01 acres of land being 24' X 17' as situated at New plot No.497, Khata No.208, Mouza-Asangi, Thana No.126, Ward No.4, Adityapur without arraying petitioner as a party defendant. 3. The petitioner's claim is that he is in possession of the suit property. The respondent no.2 put his appearance on 02.08.2013 and in the written statement, he has not made whisper regarding the possession over the land in question. 4. The respondent no.2 who has disclosed therein that the petitioner is in possession of the land in question but without appreciating the same the application made under the aforesaid provision has been rejected against which the writ petition has been filed. 5. Learned counsel for the petitioner, while assailing the aforesaid order, has submitted that the reasons assigned therein is not proper since it is not required by the petitioner to disclose everything in the application filed under order Order-1, Rule 10(2) of the Code of Civil Procedure unless he will be impleaded as party to the proceeding. 6. Heard learned counsel for the petitioner, appreciated his argument and after going across the impugned order, it is evident that suit has been filed by the respondent no.1 for declaration of right, title over the land in question. One Mr. Ashok Ghosh, son of not known, has been impleaded as defendant.
6. Heard learned counsel for the petitioner, appreciated his argument and after going across the impugned order, it is evident that suit has been filed by the respondent no.1 for declaration of right, title over the land in question. One Mr. Ashok Ghosh, son of not known, has been impleaded as defendant. The defendant-Ashok Ghosh has filed written statement wherein he has stated that the petitioner namely Ashok Bose is living over the said land and, as such, having possession of the land, the grievance of the petitioner that even though he is living in the premises having peaceful possession, he ought to have been proceeded as party to the proceeding by the plaintiff but not so, as such, the petitioner has filed an application under order Order-1, Rule 10(2) of Code of Civil Procedure for impleadment as the defendant in the suit. The same has been rejected on the ground that the petitioner has not filed any document in support of his claim regarding right, title over the suit land as well as not filed any document in support of his residential address over the suit property, wherein he is claiming that he has made a pucca house over the same. 7.
The same has been rejected on the ground that the petitioner has not filed any document in support of his claim regarding right, title over the suit land as well as not filed any document in support of his residential address over the suit property, wherein he is claiming that he has made a pucca house over the same. 7. Learned counsel for the petitioner has taken sole ground that there is no requirement to furnish details in application to be filed under Order-1, Rule 10(2) of Code of Civil Procedure but the contention is not worth to be considered in view of the provision as stipulated under Order-1, Rule 10(2) of Code of Civil Procedure which stipulates that the Court may at any stage of the proceeding, 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 and settle all the questions involved in the suit, be added, which provision suggests that the trial court is to be satisfied while allowing an application filed under Order-1, Rule 10(2) of Code of Civil Procedure, by adjudging the basis of the claim of declaration of any right over the property and same can only be done, if the document would be filed along with application for proper appreciation to establish prima facie right. 8. The contention of the petitioner is that since the respondent no.2 has stated in the written statement that the petitioner is living over the land in question having his possession, cannot be treated to establish prima facie right, unless it is supported by any relevant document, showing the right over the land even on the basis of possession. 9. The Trial Court, after appreciating this aspect of the matter, has rejected the application, hence the same cannot be interferred in exercise of power conferred under Article 227 of the Constitution of India, which is having limited scope, unless the order is without jurisdiction or beyond jurisdiction or the order has been passed by any appreciation of the factual aspect.
The Trial Court, after appreciating this aspect of the matter, has rejected the application, hence the same cannot be interferred in exercise of power conferred under Article 227 of the Constitution of India, which is having limited scope, unless the order is without jurisdiction or beyond jurisdiction or the order has been passed by any appreciation of the factual aspect. No such ground has been made. 10. Accordingly, the writ petition lacks merits as such dismissed.