ASHOK KUMAR BHARAT KAR Vs. JOGESHWAR BHARAT KAR

JUDGEMENT

(1.) BY order dated 8.3.2006 passed by the Civil Judge (Senior Division), Baripada in Title Suit No. 50 of 2003, a petition filed under Order 1, Rule 10 of the Code of Civil Procedure (in short 'CPC) has been allowed. The petitioner who is the plaintiff in the said suit seeks to challenge the order invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution.

(2.) BEREFT of unnecessary details the short facts which are necessary for appreciating the case are that the petitioner as the plaintiff filed the above suit praying for a declaration that the recording of the suit land in favour of defendant No. 2 (present opposite party No. 3) along with the plaintiff and defendant No. 1 is illegal, and for partition of the suit land and allotment of half share each in favour of the plaintiff and defendant No. 1. Defendant No. 2 is no other than the brother of the plaintiff and defendant No. 1. According to the plaintiff, out of the money which was given by his maternal uncle on the "Arnaprasanna Day" the property under dispute was purchased in the year 1962 by a registered sale deed in the names of the plaintiff and defendant No. 1. But then, inadvertently the said land has been recorded in the names of all the three brothers, i.e, the plaintiff, defendant No. 1 and defendant No. 2. Such recording, according to the plaintiff, is not correct and should be corrected. Admittedly, in the year 1962, both the plaintiff and defendant No. 1. were minors and defendant No. 2 was not born. Defendant No. 2 appeared and filed a written -statement repudiating the averments made in the plaint and took the stand that the parents of his father and so also the father of the plaintiff and defendant No. 1 were very poor and in order to earn his bread and butter their father left for Calcutta and served there in a watch repairing shop. After a few years, he returned to Baripada and opened his own shop. He was staying in a rented house. He became a very popular watch mechanic and was able to earn a handsome amount from the shop. Out of his earning, he purchased the suit land with a house standing thereon in the year 1962 and took possession of the same. However, he was afraid that his other brothers might raise a claim with regard to the said property and that was why he choose to purchase the property in the names of his two sons, i.e. the plaintiff and defendant No. 1, who were minors then. The allegation that the property was purchased from out of the money paid on the "Arnaprasanna Day" was stoutly denied. On the other hand, it was specifically averred in the written -statement that though the property was purchased in the names of the plaintiff and defendant No. 1 when they were minors, in fact the said property exclusively belongs to the father and all the three sons are entitled to the same, of course after his demise.

(3.) MR . S. P. Mishra, learned counsel for the petitioner, submits that in view of the Benami Transactions (Prohibition) Act, 1988, the plea that the father purchased the property benami in the names of his two sons being the plaintiff and defendant No. 1 cannot be accepted. It appears that the father who had filed the petition under Order 1, Rule 10 of the CPC filed a rejoinder to the objection filed and started that in an earlier suit, being T.S.No. 71 of 1991, he took the plea that he was the real purchaser of the suit land and that he being the ostensible owner had a right to be heard. In support of such statement, some documents like depositions in Title Suit No. 71 of 1991, judgment and other materials were produced. Relying upon all these documents, the Trial Court coming to the conclusion that presence of the other intervenor would be necessary for effectual adjudication of the suit allowed the petition filed under Order 1, Rule 10 of the CPC and directed to include him as a party.