Jharkhand High Court
Bhim Singh And Ors vs Ajay Singh And Ors on 7 August, 2015
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2299 of 2014
1. Bhim Singh son of Kaleshwar Singh
2. Sunita Devi wife of Bhim Singh
3. Gagan Singh adopted minor son of Lakshman Singh,
represented through his natural father Bhim Singh
All resident of Village Gidhni, PO Deopur, PS Jasidih,
Dist. Deoghar
... ... Petitioners
Versus
1. Ajay Singh son of Late Ayodhya Singh
2. Abhishek Singh son of Late Ganga Singh
3. Anirudh Singh son of Late Madhusudan Singh
4. Subhash Singh son of Late Balbhadra Singh
All resident of Village Gidhni, PO Deopur, PS Jasidih,
Dist. Deoghar
... ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. V. Shivnath, Sr. Advocate
: Mr. A. K. Choudhary, Advocate
For the Respondents : Mr. Indrajit Sinha, Advocate
: Mr. Krishanu Ray, Advocate
: Mr. S. K. Deo, Advocate
03/07.08.2015Aggrieved by order dated 29.03.2014 in Title (D) Suit No. 100 of 2013, the present writ petition has been filed.
2. The petitioners are defendants in Title (D) Suit No. 100 of 2013. The suit was filed for a declaration that adoption deed dated 07.12.2005 is null and void and for permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from illegal construction over the suit property. During the pendency of the Title Suit, plaintiff died and application dated 25.11.2013 was filed by the respondents claiming themselves ClassII heirs of the deceased plaintiff. The said application has been allowed vide order dated 29.03.2014. Aggrieved, the petitioners have 2 approached this Court.
3. Mr. V. Shivnath, the learned Senior counsel for the petitioners submits that, once a dispute has arisen as to the legal heir and successor of a party, an enquiry should have been made by the Trial Judge. In the present case merely on the averment made in application dated 25.11.2013, the respondents have been substituted in place of the deceased plaintiff and thus, the Trial Judge has adopted a completely erroneous procedure. Per contra, the learned counsel for the respondents supports the impugned order and submits that, alleged adoption of the defendant no. 3 was fraudulent which disentitles the defendants from claiming any interest in the property mentioned in the adoption deed. It is further submitted that, whether the respondents are legal heirs of the deceased plaintiff or not, cannot be adjudicated in Title (D) Suit No. 100 of 2013.
4. A perusal of application dated 25.11.2013 discloses that the respondents have claimed that they inherited the property of Lakshman Singh and therefore, they are entitled to be substituted in place of the deceased plaintiff. The said application was resisted by the defendants contending that Lakshman Singh had no issue and, that was the reason he first adopted defendant no. 3 on 04.12.2005. The defendants have asserted that the applicants who are respondents in the writ petition are not related to plaintiffLakshman Singh in any manner whatsoever and they produced wrong genealogical table. The trial court after noticing the rival plea taken by the parties, by a cryptic order held that, the applicants claiming to be ClassII heirs have right to sue. Thus, it is apparent that provisions under Order XXII Rule 3 and Rule 5 C.P.C have completely been ignored by the Trial Judge. I find that impugned order dated 29.03.2014 suffers from serious infirmity in law. Without holding an enquiry and permitting the parties to lead evidence, application dated 25.11.2013 could not have been allowed. Consequently, impugned order dated 29.03.2014 is hereby setaside and the matter 3 is remitted for a consideration, afresh. The Trial Judge shall decide application dated 25.11.2013, in accordance with law.
5. Let a copy of the order be transmitted to the concerned trial court through FAX.
(Shree Chandrashekhar, J.) Amit/N.A.F.R