JAIBUNNISHA BIBI Vs. SK. JALALUDDIN AND ORS.

JUDGEMENT

(1.) THE Appellant Jaibunnisha Bibi who was Defendant No. 4 in T.S. No. 636 of 1989 before the Court of the First Addl. Civil Judge (Sr. Divn.), Cuttack, seeks to challenge the judgment dated 13.5.2004 passed by the Addl. District Judge, Fast Track Court -II, Cuttack in Title Appeal No. 52 of 2000 who by his judgment and decree has set aside the decree passed in the suit and further directed remand of the matter to the trial Court for fresh disposal after impleading one Muta Alli as a party to the suit.

(2.) THE brief facts leading to filing of the present appeal are that one Sk. Jalaluddin (R -1) had instituted T.S. No. 636 of 1989 in the Court of the First Addl. Civil Judge (Sr. Divn.), Cuttack for declaration of his right, title and interest over the suit property on the strength of a registered sale deed dated 7.11.1988 made out in his favour by Atturan Nissa Bibi (D.2) and Kaisuran Bibi (D.3), the daughters of one late Ramjan AM. Sk. Jalaluddin had also prayed for a declaration that Gouri Sankar Agarwalla (D.1) was a tenant whose tenancy has been terminated and for a further declaration that the said G.S. Agarwalla has no right, title and possession over the disputed land as well as for recovery of arrear rent and for permanent injunction against the Defendants restraining them from changing the nature and character of the suit land.

(3.) MR . Mukherji, learned Counsel for the Appellant submitted that the lower appellate Court has committed gross error in law by not keeping in view the mandatory provisions of law laid down in Section 99 and Order 1, Rule 9 Code of Civil Procedure, since once the lower appellate Court came to a finding that Muta Walli was a necessary party to the suit, on such a finding, the appeal should have been allowed by directing dismissal of the suit, instead of setting aside the judgment and decree passed by the trial Court and remanding the matter back to it for fresh disposal after impleading Muta Walli as a party to the suit. Mr. Mukherji has placed reliance on Section 99 and Order 1, Rule 9 Code of Civil Procedure which are quoted below: