Patna High Court
Md. Sajjad & Ors vs Md. Abrul & Ors on 4 September, 2018
Author: Sanjay Kumar
Bench: Sanjay Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19164 of 2013
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1. Md. Sajjad
2. Md. Jubbair
3. Md. Taaj Alam
All are sons of Late Saffiquddin, resident of village - Saidpur, P.O./P.S. - Mansi,
District - Khagaria. .... .... Petitioner/s
Versus
1. Md. Abrul
2. Md. Mansoor Alam
3. Md. Jaleel
All are sons of Late Saffiquddin, resident of village - Saidpur, P.O./P.S. - Mansi,
District - Khagaria
4. Md. Tohid S/o Late Fariduddin, resident of village - Saidpur, P.O./P.S. - Mansi,
District - Khagaria. .... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rakesh Chandra, Adv.
For the Respondent/s : Mr. Najmul Hoda, Adv.
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CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL JUDGMENT
Date: 04-09-2018 This application has been filed for quashing the order dated 24.07.2013 passed by Sub-Judge-III, Khagaria in Title Suit No.69 of 2006. The learned court below as per impugned order refused to transpose the petitioners in the category of defendant 2nd party.
2. Heard learned counsels for the petitioners as well as the respondents and perused the record.
3. It appears that the respondent nos. 1 and 2 filed the aforesaid suit against these petitioners and respondent nos. 3 and 4 for declaration of their right, title and confirmation of possession over the land mentioned in schedule-I of the plaint. When the suit was pending Patna High Court CWJC No.19164 of 2013 dt.04-09-2018 2/3 for admission, these petitioners were transposed from the category of defendant to the category of plaintiff nos. 3, 4 and 5 on the petition of plaintiff nos. 1 and 2 without any knowledge and information to the petitioners. These petitioners on getting knowledge about their transposition filed a petition on 16.04.2007 for transposing them in the category of defendant 2nd party. The other defendants filed rejoinder and the court below as per impugned order refused to transpose the petitioners in the category of defendants.
4. The learned counsel for the petitioners submitted that these petitioners are absolute owner of the land in dispute. The plaintiff nos. 1 and 2 are full brothers of these petitioners and they in order to get their title declared along with these petitioners have mala fide got them transposed as plaintiff nos. 3, 4 and 5. These petitioners neither filed the plaint nor executed any wakalatnama nor verified the plaint and so the order transposing the petitioners in the category of plaintiffs is against the provision of law. The court below has committed error in transposing the petitioners and so the same is fit to be quashed.
5. The learned for the respondents on the other hand submitted that the interest of these petitioners and respondent nos. 1 and 2 who were plaintiffs before the court below are common. They all are owner of the disputed land and so the petitioners have been Patna High Court CWJC No.19164 of 2013 dt.04-09-2018 3/3 rightly transposed to the category of plaintiff.
6. On perusal of impugned order and documents on record I find that these petitioners were initially arrayed as defendant nos. 3, 4 and 5. The plaint was presented only by plaintiff nos. 1 and
2. These petitioners neither verified the plaint nor presented the plaint. The impugned order was passed without giving any notice to the petitioners. The petitioners claim exclusive right, title and possession over the suit land. The claim of these petitioners is adverse to the claim of plaintiff nos. 1 and 2, as these petitioners denied the right, title and possession of the respondent nos. 1 and 2 and so the impugned order transposing these petitioners in the category of plaintiff is not sustainable.
7. In view of above facts, the impugned order transposing the petitioners from defendant to the plaintiffs is set aside. The court below is directed to transpose them in the category of defendant 2nd set.
8. This writ application is accordingly allowed.
Mahesh/- (Sanjay Kumar, J) AFR/NAFR NAFR CAV DATE N/A Uploading Date 10.09.2018 Transmission N/A Date