NIRMALEWDU CHAKRABORTY Vs. STATE

JUDGEMENT

(1.) THIS re visional application is against the Order no. 243 dated January 15, 1986 passed by the learned Munsif, Additional court at Sealdah in Title Suit No. 196 of 1983 allowing the defendant no. 2's application for transposing him to the category of plaintiff. The opposite party No. 1 as plaintiff instituted the aforesaid title suit against the petitioner and the opposite party No. 2 for recovery of possession of the suit property alleging, inter alia, that she had purchased the said plot with her own money and constructed a house on a portion thereof but the petitioner encroached upon another portion of the said plot and constructed structure thereon and that the subsequent sale of the suit plot by the plaintiff opposite party No. 1 to the opposite' party No. 2 who was subsequently added as defendant no. 2, was a benami transaction. The petitioner, however, in the written statement denied and disputed the allegations as made in the plaint during trial, the opposite party No. 2 was examined and cross-examined. Thereafter, the opposite party Mo. 2 filed an application for transposing him as the plaintiff No. 2, inter alia, on the allegation that since he had supported the case of the plaintiff-opposite party No. 1 and both were sailing in the same boat and had got common interests in the suit he should be transposed as the plaintiff No. 2. The said prayer of the opposite party No. 2, was not opposed by the plaintiff- opposite party No. 1 but the petitioner made an objection against the same, inter alia, on the allegation that the opposite party No. 2 had locus standi to make such an application when he had virtually admitted the pleadings of the opposite party No. 1 as made in the plaint. The learned Munsif, however, by the impugned order allowed the said application of the opposite party No. 2, inter alia, on the finding that since the plaintiff-opposite party No. 1 was agreeable and ready to accept the opposite party No. 2 as co-plaintiff, he was unable to accept the objection raised by the petitioner. Against the said order the petitioner has moved the present re visional application in this Court.

(2.) MR. Saktinath Mukherjee, the learned advocate appearing on behalf of the petitioner has challenged the impugned order on various grounds including the question of limitation and submitted that since the opposite parties No. 1 and 2 are not sailing in the same boat and since the opposite party No. 2 had virtually admitted the pleadings of the opposite party No. 1 as made in the plaint, there was no question of transposing the opposite party No. 2 to the category of the plaintiff as he and the opposite party No. 1 had no common interest in the suit.

(3.) MR. Ghose, learned Advocate appearing on behalf of the caveat or/opposite parties, however, has supported the impugned order on the ground that it was the plaintiff's suit and since the plaintiff had no objection in the matter of transposing the opposite party No. 2 to the category of co-plaintiff the petitioner who was a defendant in the suit could not raise objection against such transposition. The question of limitation as raised by Mr. Mukherjee, according to Mr. Ghose, was a matter to be decided at the time of trial.