Patna High Court - Orders
Yatindra Kumar Jha & Ors vs Smt.Ravindra Prabha Ojhain @Sh on 2 August, 2017
Author: Jitendra Mohan Sharma
Bench: Jitendra Mohan Sharma
Patna High Court FA No.236 of 1997 (42) dt.02-08-2017
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.236 of 1997
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Yatindra Kumar Jha & Ors .... .... Appellants
Versus
Smt.Ravindra Prabha Ojhain @ Shakuntla Devi .... .... Respondent
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CORAM: HONOURABLE MR. JUSTICE JITENDRA MOHAN
SHARMA
ORAL ORDER
42 02-08-2017I. A. No. 8068 of 2009 This interlocutory application was pressed earlier and vide order dated 06.04.2010 it was ordered that same may be considered at the time of final hearing of this appeal and as such the same has been pressed again.
2. By filing this interlocutory application, petitioner Navin Kumar Singh has made prayer to add him as a respondent in this appeal on the ground that the plaintiff-respondent no. 1 Sakuntala Devi in 1988 sold 3 and ½ katta land of Khata No. 32 Khesra No. 272 and 273 to Ravishankar Prasad and again in 1990 she sold 3 Khatta and 9 Dhurs land of the aforesaid Khesra and Khata to Ravishankar Prasad and after purchasing this land name of Ravishankar Prasad mutated. Ravishankar Prasad died leaving behind two sons, namely, Rajiv Ranjan Sinha and Sanjib Ranjan Sinha. Both brothers vide registered sale deed dated 06.01.2009 sold 15 Dhurs of land to Navin Kumar Singh this intervener. This disputed land is the part of that 3 and ½ Khattha land which Ravishankar Prasad had Patna High Court FA No.236 of 1997 (42) dt.02-08-2017 purchased from Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi. After purchase Navin Kumar Singh came in possession over the aforesaid land. Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi wife of late Rabindra Kumar Jha filed Title Suit No. 35 of 1966 for partition of 1/3rd share out of the properties detailed in Schedule I of the plaint and the same was decreed. Now the said Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi was plaintiff-respondent no. 1 in this appeal but she also died on 06.02.2007 leaving behind her no issue, resulting, her name has been expunged from the memo of appeal. Now there is no one to contest this appeal.
3. Intervener wants to be impleaded as respondent, so that his interest may be saved. If the prayer is not allowed, he will suffer irreparable loss and injury. There is no one to contest this appeal. On behalf of intervener reliance has been placed upon a judgment reported in AIR 1999 Supreme Court 976 in the case of Savitri Devi... Appellant vs. District judge, Gorakhpur and ors.... Respondents.
4. On behalf of appellants the prayer of the intervener has been opposed by submitting that Navin Kumar Singh has got no right, title and possession and his venders have also got no right title and possession as Patna High Court FA No.236 of 1997 (42) dt.02-08-2017 earlier Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi sold the land of Khata No. 32 Khesra No. 272 and 273 measuring an area of 6 Kattha and 19 Dhurs to Satyendra Kumar Jha, Baban Kumar Jha and Deman Kumar Jha through registered sale deed dated 20.06.1987. Thereafter, there was no land to sale again, but Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi after committing fraud again sold part of the land measuring an area of 3 and ½ Kattha of Khesra No. 272 and 273 to one Ravishankar Prasad vide sale deed dated 10.05.1988 without getting the sale deed dated 20.06.1987 cancelled and again Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi by committing fraud sold rest land of Khesra No. 272 and 273 measuring an area of 3.9 Kattha to Ravishankar Prasad and one Banke Mahto vide sale deed dated 24.03.1990. In partition suit filed by Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi there was an interim order of injunction on 22.11.1967 which was made absolute on 22.12.1969 and during pendency of the injunction order the said Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi sold the aforesaid land and as such the same is hit by lis pendence and also in complete disregard of the court's order. In the aforesaid suit bearing no. 35/66 Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi filed petition dated Patna High Court FA No.236 of 1997 (42) dt.02-08-2017 28.06.1993 under Order 6 Rile 17 read with Section 151 of the Code of Civil Procedure to amend the plaint with a prayer that newly purchaser namely, Ravishankar Prasad and Banke Mahto be added in the column of plaintiff 2nd party and both the purchasers have also filed their appearance through Vakalatnama. However, after filing of the reply by defendants no. 1 and 2 the said amendment petition was withdrawn, thereafter, neither Ravishankar Prasad nor Banke Mahto have challenged the same before any competent court of the jurisdiction. The two sons of Ravishankar Prasad have fraudulently sold 15 Dhurs of land of Khesra No. 272 and 273 to the intervener who has got no locus standi to be made party in this appeal. This interlocutory application is meritless and is fit to be dismissed. The intervener is neither a necessary party nor a proper party and now the defect cannot be cured by adding those transferees as parties in appeal. Reliance has been placed upon AIR 2015(NOC) 1094 (CAL.) in the case of Sk. Riyasat Ali v. Sk. Safiuddin Ahamed and others. No steps for adding intervener was taken to be added as party in the suit and this defect cannot be cured by adding him party in this appeal. Further reliance has been placed on a judgment reported in AIR 2005 Supreme Court 2813 in the matter of Kasturi..Appellant v. Iyyamperumal and Patna High Court FA No.236 of 1997 (42) dt.02-08-2017 others..Respondnets. wherein it has been held that the suit for specific performance of contract for sale, third party/stranger claiming independent title and possession over contracted property is neither necessary nor proper party and therefore, not entitled to join as party in the suit. Further reliance has been placed upon a judgment reported in AIR 2015 Supreme Court 1264 in the matter of Baluram v. P. Cheelathangam and others. It is argued that after such a long delay intervener cannot be added as a party. The first sale deed is of the year 1988 and as such the petition of the intervener filed in the year 2009 after such a long lapse of time cannot be entertained.
5. Having considered the submissions urged at Bar, going through the records and noticing that Smt. Ravindra Prabha Ojhain @ Mostt. Sakuntala Devi died on 06.02.2007 leaving behind her no issue and now in this appeal there is no plaintiff-respondent, the other respondents are defendants whereas the appellants are also the defendants and as such impleadment of Navin Kumar Singh appears necessary for the ends of justice.
6. So far as purchase made in violation of injunction order is concerned, in Savitri Devi vs. District judge, Gorakhpur and ors (Supra) the Apex Court has held that the impleadment is necessary for deciding the Patna High Court FA No.236 of 1997 (42) dt.02-08-2017 questions whether sales were committed in contempt and disregard of injunction and whether purchasers were bona fide transferees and further to avoid multiplicity of the suits, the party can be added. Without presence of Navin Kumar Singh all the issues cannot be decided and as such for effective adjudication Navin Kumar Singh appears necessary to be added in this appeal as respondent no. 1. Due to adding of party no right and title can pass over the party and his right and title can be decided in the appeal itself.
7. In the result, I. A. no. 8068 of 2009 is hereby allowed and Navin Kumar Singh is directed to be added as intervener-respondent no. 1.
8. As prayed for, list this appeal on 11.09.2017 under the same heading.
(Jitendra Mohan Sharma, J) avin/-
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