KRISHNADHAN SINGHA Vs. BIJU GHOSH

JUDGEMENT

(1.) Heard Mr. S. Biswas, the learned counsel for the petitioner. Also heard Mr. R. Dhar, the learned counsel for the respondents.

(2.) udgement dated 19.03.2016 passed in Misc. Appeal No. 3/2016 by the learned District Judge, Cachar at Silchar is under challenge. The present petitioner as the plaintiff filed Title Suit No. 58/2013 in the Court of learned Civil Judge, No. 1, Cachar at Silchar against the respondent Nos. 2 to 5 for declaration of right, title and interest, confirmation of possession and injunction. The suit land measuring 8 kathas originates from total land measuring 26 Bighas, 12 Kathas, 7 Chattaks of Barakpar-Porgona under Mouza- Tarapur Part - VIII appertaining to 2nd R.S. Patta No. 145, Dag No. 449, 451 and 450. The Schedule of the suit land is shown in the Schedule-II in the plaint of Title Suit No. 58/2013. The respondent Nos. 2 to 5 filed their written statement taking the plea that suit is bad for non-joinder of one Sri Biju Ghosh the purported owner of a plot of land measuring 1 Bigha out of the said total land covered by 2nd R.S. Patta No. 145. It is also the pleading that the said Biju Ghosh purchased the land measuring 1 Bigha by way of registered sale deed executed prior in point of time to the one of the plaintiff/petitioner on the basis of which he claimed his right, title and interest on the suit land. In Title Suit No. 58/2013 an application under Order XXXIX Rule 1 and 2 of the C.P.C. was filed seeking for an order of temporary injunction restraining the respondent Nos. 2 to 5 from interfering the peaceful possession of the petitioner over the suit land. The respondent Nos. 2 to 5 raised similar objections in the injunction application as the one raised in the written statement.

(3.) The plaintiff/petitioner in order to nullify the plea of the defendant of non-joinder of necessary party filed an application under Order I Rule 10 of the C.P.C. to implead the said Biju Ghosh in the suit. Vide order dated 12.03.2014, the said petition under Order I Rule 10 of the C.P.C. was dismissed. On the other hand, the injunction application was registered as Misc. Case No. 17/13 and vide order dated 02.04.2014 the learned Court of Civil Judge, No. 1, Cachar at Silchar by holding that there was no prima facie case dismissed it. The petition No. 4 was filed by the petitioner to withdraw the Title Suit No. 58/2013 with liberty to file it afresh. The learned Court below vide order dated 25.08.2014 allowed the said application under Order XXIII Rule 1 of the C.P.C. along with the liberty to file it afresh.