ANIL TIWARI Vs. LAXMI DEVI

JUDGEMENT

(1.) Heard on the question of admission and interim relief. In this petition, under Article 227 of the Constitution of India, the petitioner has called in question the legality, validity and propriety of the order dtd. 1/9/2022 (Annexure-P/7) passed in Civil Suit No.272-A/2016 by the 4th Additional Civil Judge to the Court of First Civil Judge, Senior Division, District Rewa whereby application filed by the petitioner/Lrs of defendant No. 4 under order 23 Rule 1-A read with Order 1 Rule 10 of the C.P.C. for transposition as plaintiffs has been dismissed.

(2.) The brief facts leading to filing of the case are that respondent Nos. 1 to 5-plaintiffs filed a civil suit on 24/9/2009 for declaration and permanent injunction in respect of one half share in the lands bearing Khasra No. 62, area 7.19 acres, Khasra No.63, area 0.48 acres, Khasra No.74, area 0.21 acres, Khasra No. 75, area 6.06 acres, Khasra No. 78, area 1.55 acres, Khasra No. 79, area 0.28 acres, total area 15.77 acres, situated in Village Badraon, Tehsil Huzur, District Rewa and in the alternative they be declared as Bhumiswami in respect of 1/6th share in the lands shown in schedule B attached to the plaint. The defendants No. 1 to 9 (respondents No. 6 to 14) filed counter claim under Order 8 Rule 6 (a) of the Code of Civil Procedure, 1908 on 8/11/2016. Vide order dtd. 10/4/2019, the learned trial Court dismissed the counter claim filed by the defendants No. 1 to 9 as not maintainable. During the pendency of the aforesaid civil suit, defendant No. 4 died and his legal heirs i.e. petitioners No. 1 to 3 were brought on record. It appears that the plaintiff No. 1- Smt. Laxmi Devi also died during the pendency of the suit and her legal heirs were also brought on record.

(3.) Learned counsel for the petitioner submits that the trial Court has erred in rejecting the application under Order 23 Rule 1-A of the CPC read with Order 1 Rule 10 of the C.P.C., is absolutely arbitrary, illegal and cannot be sustained in the eyes of law as well as is liable to be set aside. The learned trial Court rejected the application on the ground that from the application as well as from the records, it cannot be ascertained that there exists any material ground or any change circumstances which is required to be decided. Therefore, the application for transposition has been dismissed.