BIBEKANANDA MAHAR Vs. DIPTI RANJAN GARTIA

JUDGEMENT

(1.) The Petitioner is the plaintiff in C.S. No.12/2013 of the Court of learned Civil Judge (Sr.Divn.), Athmallik, who questions the correctness of order dtd. 3/1/2024 passed by the said Court in allowing an application under Order 1 Rule 10 of C.P.C. to add a party not originally impleaded.

(2.) Briefly stated, the suit is one filed by the plaintiff for partition of the Schedule-A properties besides declaration of certain sale deeds as void and declaration of title in respect of B Schedule property along with permanent injunction and recovery of possession etc. Most of the defendants entered appearance and some of them filed their written statements. The present Opposite Party No.1, who was not a party to the suit appeared and filed an application for his impletion as a party under Order 1 Rule 10 of C.P.C. It was claimed that he is the grandson of late Malati Mahar, recorded tenant of the land in question on the strength of a registered will executed by her. Malati was the wife of late Raghumani Mahar, who was one of the co-parceners and recorded tenant of his ancestral property and as per the will, he claimed share in the suit property. Besides, Opposite Party No.1 also claimed that the compromise decree passed in an earlier suit being T.S. No.3/1989 had no effect on the suit. Since Malati had not got her legitimate share and the compromise was effected fraudulently under pressure of defendant-Prasanna Mahar, the compromise decree is not binding on the Petitioner.

(3.) The plaintiff filed objection stating that Malati had earlier filed a suit being T.S. No.3/1989 against the father of the plaintiff and Defendant No.1 and predecessor-in-interest of other defendants claiming her share in the joint family property. The suit was compromised and final decree was drawn up on 26/11/1990 allotting Schedule B property of that suit in her favour. As such, the property no longer remained ancestral or joint. The intervenor is bound by the compromise and he has already mutated the property received under the compromise. The intervenor therefore, has no right over the suit property.