Jharkhand High Court
Dilip Kumar @ Gagga @ Dilip Kumar Prasad vs Mostt. Urmila Devi on 27 August, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1495 of 2018
1. Dilip Kumar @ Gagga @ Dilip Kumar Prasad, aged about 60
years.
2. Ashok Kumar @ Pappu aged about 62 years,
Both sons of late Rabindra Prasad
Resident of Kali Babu Street, Upper-Bazar, PO-GPO, PS-Kotwali,
District-Ranchi ... ... Petitioners/Defendants
Versus
1. Mostt. Urmila Devi, W/o- Late Diwakar Prasad
2. Vijay Kumar
3. Ashok Kumar, both son of late Diwakar Prasad
All resident of Mohalla Gola Road, Chatti Bazar Ramgarh Cantt.,
PO&PS-Ramgarh, District-Ramgarh
4. Smt. Urmila Sinha, W/o Late Amrendra Kumar Sinha, resident of
Singh More, Hatia, PO&PS-Jagarnathpur, District-Ranchi
5. Dilip Kumar Sinha, S/o- Late Narbadeshwar Prasad Sinha,
resident of village-Baida, PO-Telrain, PS-Panki, District-Palamau
6. Anjani Kumar Sinha
7. Aswani Kumar Sinha
8. Arbin Kumar Sinha, all sons of late Ravinesh Kumar Sinha,
Resident of People Co-operative Colony, Kakkarbagh,
Po&PS-Kankarbagh, District-Patna, Bihar
9. Purnima Sinha, W/o- Rajesh Kumar Sinha, D/o- Late Ravinesh
Kumar Sinha, resident of House No. 18 Atturlegout Santosh Nagar,
Banstore, PO&PS-Banstore, District-Banglore
10. Nilima Sinha W/o- Navin Kumar Sinha, D/o- Late Ravinesh
Kumar Sinha, resident of Gouri Shankar Colony, PO&PS-Gaighat,
District-Patna, Bihar
11. Smt. Manju Devi, W/o- Raj Kumar Lal, resident of College
Road Bara Bazar, Gwala Toli, PO,PS&District-Ramgarh
12. Republic Tractor Motor Pvt. Limited, through its Director
Rajendra Prasad Budhia, S/o- Late Atmaram Budhia, Resident of
Radheshyam Lain, Main Road, PO-GPO, PS-Kotwali,
District-Ranchi ... ... Respondents/Plaintiffs/Defendants
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioners : Mr. Arbind Kumar Sinha, Advocate Mr. Ajay Kr. Pathak, Advocate For the Respondents : --
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05/27.08.2018 The petitioners, who are defendant nos. 2 and 3 in Title Partition Suit No. 29 of 1990, are aggrieved of order dated 18.01.2018 by which an application under Order I Rule 10 CPC for 2 impleading Republic Tractor Motor Pvt. Limited through its Director Rajendra Prasad Budhia has been allowed.
2. Title Partition Suit No. 29 of 1990 has been instituted by Mostt. Urmila Devi and others for a preliminary decree for partition of the suit properties to the extent of 20% share for the plaintiffs 1st set and 20% share for the plaintiffs 2 nd set. During pendency of the suit the applicant/intervener purchased a part of the suit properties from plaintiff no. 4 and defendant nos. 6 and 7. It filed an application for its impleadment in the partition suit which was resisted by defendant nos. 1 to 3, 1(a) and 1(b).
3. Stand taken by the petitioners is that the sale-deed executed in the years 2013 and 2015 are paper transactions and possession of the properties comprised under sale-deed were not been delivered to the intervener. Moreover, title of the plaintiffs and defendant no. 6 is under cloud and, therefore, at this stage the intervener who is a stranger to the joint family cannot be added as a party defendant in the partition suit.
4. Whether a person is a necessary party or a proper party in the suit has been explained by the Supreme Court in "Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar and Another" reported in AIR 1963 SC 786. It has been held that the one whose presence is necessary for effective adjudication of the dispute is a necessary party and the 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 is a proper party. Under Order-I Rule 10(2) CPC the Court may at any stage of the proceeding, either suo-motu or upon an application of a party, struck out the name of any party who has been improperly joined and name of any person who ought to have been joined may be added in the suit. This power under Order-I Rule 10(2) CPC is grounded on justice, equity and good conscience.
5. No doubt, in a partition suit subsequent purchaser is not a necessary party for effective and/or complete adjudication of the 3 dispute involved in the suit, but by now it is well-settled that for working out equities in favour of a person who has purchased a part of the suit properties, his addition in the suit is necessary. That is to say, atleast at the stage of Takhtabandi when final decree is prepared in the partition suit a purchaser pendente lite can claim equities. At this stage, a subsequent purchaser may insist upon allocation of the same piece of land which is comprised under the sale-deed, if share of his vendor is sufficient to cover the extent of land comprised in the sale-deed. In "Dhanlakshmi and Others Vs. P. Mohan and Others" reported in (2007) 10 SCC 719, the Supreme Court has dealt with addition of the transferees-in-interest of a co-sharer in the following terms:
"5. Section 52 deals with a transfer of property pending suit. In the instant case, the appellants have admittedly purchased the undivided shares of Respondents 2, 3, 4 and 6. It is not in dispute that the first respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the appellants of the undivided share in the suit property, the rights of the first respondent herein in the suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the appellants, having purchased the property from the other co-sharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the appellants are necessary and proper parties to the suit, which is now pending before the trial court. We also make it clear that we are not concerned with the other suit filed by the mortgagee in these proceedings."4
6. The learned trial judge has rightly observed that since the saleable right, title and interest of the vendors have been transferred through the sale-deeds executed in favour the intervener-Republic Tractor Motor Pvt. Limited, it needs to be impleaded as party defendant in the suit. The intervener-respondent no. 8 has been permitted to file written statement, however, this permission to the respondent no. 8 to file written statement, in the context of its rights flowing from the sale-deed, must remain confined to producing a copy of the sale-deed and leading evidence only to the extent that the sale-deeds have been executed by the plaintiff no. 4 and defendant nos. 6 and 7 in its favour, and not beyond this.
7. In view of the fact that the intervener is a subsequent purchaser and it has right to come on record, of course for limited purpose, its impleadment in Title Partition Suit No. 29 of 1990 must be held justified.
8. Accordingly, finding no substance in the challenge to the impugned order dated 18.01.2018, the writ petition is dismissed.
(Shree Chandrashekhar, J.) Tanuj/-