Patna High Court - Orders
Sudhir Kumar Sah vs Gorabh Patel & Ors on 28 November, 2017
Author: Prabhat Kumar Jha
Bench: Prabhat Kumar Jha
Patna High Court C.M isc. No.239 of 2016 (5) dt.28-11-2017
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.239 of 2016
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1. Sudhir Kumar Sah son of Sri Narayan Sah resident of village Dakhin
Maheshwari, P.O. and P.S. Jogbani, District Araria.
.... .... Petitioner/s
Versus
1. Gorabh Patel son of Shiv Shankar Prasad resident of village Uttar
Maheshwari, Ward no. 11 Jogbani P.O. and P.S. Jogbani, District Araria.
2. Gajadhar Gupta son of Raghunath Prasad Gupta resident of village Uttar
Maheshwari, Jogbani P.O. and P.S. Jogbani, District Araria.
3. Sumitra Devi wife of Shivji Prasad Gupta resident of village Uttar
Maheshwari, Jogbani P.O. and P.S. Jogbani, District Araria.
... Interveners-Respondents 1st party
4. Narayan Sah son of Late Inderchand Sah.
5. Manoj Kumar Sah son of Late Jai Nandan Sah Both residents of village
Dakhin Maheshwari, P.S. Jogbani, District Purnea.
6. Rekha @ Munni Devi daughter of Late Jai Nandan Sah and wife of
Chandra Shekhar Pd. Sah resident of Belouri, P.S. Sadar, District Purnea.
7. Manju Devi daughter of Late Jai Nandan Sah, wife of Gajendra Pd. Sah,
resident of village Mirchaibari Katihar, P.S. and District Katihar.
8. Shyama Devi wife of Ram Prasad Sah resident of village Jagir Pipra, P.O.
and P.S. Kursakanta, District Araria.
9. Uma Devi wife of Shyam Sundar Sah resident of Belahi Bhadreswar,
P.O. Bhadreswar P.S. Forbesganj, District Araria.
10. Pitambar Sah son of Late Hira Lal Sah
11. Mithilesh son of Pitambar Sah.
12. Munna son of Pitambar Sah
13. Manju Devi daughter of Pitambar Sah. All residents of village and P.O.
Palasi, P.S. Palasi, District Araria.
14. Sanjay Sah son of Late Jamun Pd. Sah.
15. Ajay Sah son of Late Jamun Pd. Sah.
16. Sita Devi daughter of Late Jamun Pd. Sah
17. Rita Devi daughter of Late Jamun Pd. Sah All residents of village and
P.O. Chowra Parwaha, P.S. Forbesganj, District Araria.
.... .... Respondents 2nd party
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Appearance :
For the Appellant/s : Mr. Ravindra Kr Sinha No.2
For the Respondent/s : Mr. Nagendra Rai
Mr. Navin Nikunj
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CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR
JHA
ORAL ORDER
5 28-11-2017Heard both sides.
Patna High Court C.M isc. No.239 of 2016 (5) dt.28-11-20172
The petitioner has filed this civil Miscellaneous petition for setting aside the order dated 14.03.2016 passed in Probate Case No.1 of 2013 by Additional District Judge III, Araria by which the learned Additional District Judge has allowed the petition of the respondents 1st set filed under Order I Rule 10(2) C.P.C.
Admittedly, the title suit No.129 of 1994 was pending between Sudhir Kumar Sah and Narayan Sah and others for declaration of title. During the pendency of the aforesaid title suit, vide order dated 28.06.1999, the plaintiff and defendants of Title Suit No.129 of 1994 were refrained from selling the land. The grandfather of the petitioner, Sudhir Kumar Sah, who was one of the defendants died after prepoundering the Will. The petitioner filed Probate Case No.1 of 2003 for probate of the Will. During the pendency of the probate case, the respondents 1st set filed petition under Order I Rule 10(2) of the C.P.C. that they purchased lands from different defendants of Title Suit No.129 of 1994, their vendors are party in the probate case but they have not filed any objection. Therefore, they are necessary parties. The learned Additional District Judge II, vide his order dated 14.03.2016 allowed the petition of the respondents 1st set to be impleaded as objector of the Will. Against the aforesaid order, the petitioner Patna High Court C.M isc. No.239 of 2016 (5) dt.28-11-2017 3 filed this petition and assailed the same on the ground that of course, the plaintiff and defendants of Title Suit No.129 of 1994 are common descendants but the grandfather of the petitioner d id not execute any sale deed in favour of any of the respondent. The grandfather died after executing the Will for which the petitioner filed probate case. The respondents 1st are not necessary party in the probate case in which genuineness of the Will of the propounder is to be tested. The respondents 1st set have admittedly purchased the land during the pendency of the suit and after the order of restraintment passed by the Sub Judge III on 28.06.1999 directing all the parties of the suit not to transfer any land. The same can be ignored and the transferee or assignee after the order of restraintment cannot claim to be impleaded as party.
The learned counsel placed his reliance in support of his contention on the judgment of the Apex Court reported in AIR 1996 Supreme Court 135(Surjit Singh v. Harbansh Singh & Ors.).
On the other hand, the learned counsel for the respondents 1st set submits that the petitioners are purchasers from different defendants of Title Suit No.129 of 1994. They are necessary party to the probate case. The judgment in probate case is judgment in rem and the same is binding on the transferee of the defendants. It is further submitted that the matter of disobedience Patna High Court C.M isc. No.239 of 2016 (5) dt.28-11-2017 4 of the order of restraintment is yet to be considered in the title suit. The respondents have no knowledge about the order of restraintment and they are bonafide purchasers of the land in question from different defendants. It is further submitted that Plot Nos.2464 and 2465 are included in the Will. There is no finding in the title suit that the propounder of the Will is the exclusive owner of the land. In order to avoid the multiplicity of suit, the Court has rightly allowed the petitioners to be impleaded in the suit. It is further submitted that on similar facts, a three Judge Bench of the Supreme Court has held that in order to avoid the multiplicity of suit, the purchasers of the lands from the defendants be also impleaded in the suit otherwise the purchasers of the lands from the defendants shall have to take recourse to fresh suit and that will cause multiplicity of suit. The learned counsel for the respondents 1st set placed reliance on the judgment of the Apex Court reported in AIR 1999 Supreme Court 976(Savitri Devi v. District Judge, Gorakhpur and ors.). The facts of the case are quite different.
From the facts of the case, it appears that Title Suit No.129 of 1994 was filed for declaration of title. The grandfather of the petitioner was also one of the defendants. On 28.06.1999, the learned Sub Judge III passed order on restraintment against Patna High Court C.M isc. No.239 of 2016 (5) dt.28-11-2017 5 both sides of the title suit restraining them from transferring the suit land but nevertheless some of the defendants transferred the land on different dates beginning from 1998, and thereafter in favour of respondents 1st set. Respondents 1st set did not file any petition for their impleadment in Title Suit No.129 of 1994 which was pending for declaration of title and confirmation of possession with regard to the lands mentioned in the schedule of the plaint. Admittedly, the grandfather of the petitioner died during the pendency of the suit but he did not transfer any land standing in his own name to any of the respondent 1st set. Before death, the grandfather of the petitioner executed Will and the petitioner filed the probate case. Defendants-respondents 1st set instead of filing petition under Order I Rule 10 (2) in the title suit where the suit is pending for declaration of title filed petition under Order I Rule 10(2) in the probate case where respondents 1st set has no right to object because unless the lands standing in the name of the grandfather of the petitioner is declared to be land of other defendants who sold the land in favour of respondents 1st set. The respondents 1st set cannot claim to be necessary party in the probate case.
Having considered the facts aforesaid, I find that the learned Additional District Judge has erred in law in allowing the Patna High Court C.M isc. No.239 of 2016 (5) dt.28-11-2017 6 petition filed by the respondents 1st set to implead in the probate case. Accordingly, the same is set aside and the civil miscellaneous application is allowed.
(Prabhat Kumar Jha, J) Saurabh/-
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