MUKESH CHANDRA Vs. BIJOY SINGH GAUTHAM

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the learned counsel for the respondent no. 2 as well as learned counsel for the respondent no. 4.

(2.) The present civil miscellaneous petition has been filed under Article 227 of the Constitution of India by the petitioner for quashing the order dtd. 3/11/2017 passed by the learned Sub Judge-II, Khagaria in Title Suit No. 01 of 2014, whereby and whereunder the petition filed by the respondent no. 2 under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') for her impleadment as plaintiff no. 2 in the suit has been allowed by the learned trial court.

(3.) Learned counsel for the petitioner submits that the respondent no. 2 is the purchaser of 1100 square feet land from respondent no. 1, who is power of attorney holder of one Sureshwar Prasad Singh, who filed the Title Suit No. 01 of 2014 for declaration that sale deed no. 7474 to 7484 dtd. 20/11/2013 purported to have been executed by Pratap Singh and Prakash Singh, both sons of Sureshwar Prasad Singh, are fraudulent deeds and are void, ab initio, illegal and inoperative and the defendants did not derive any title from these sale deeds. Learned counsel further submits that petitioner is defendant no. 4 in the said suit and he filed his written statement contesting the claim of the plaintiff. In the said suit, respondent no. 2 filed an application on 1/3/2016 stating that she has purchased land of Khata No. 26, Khesra No. 178, area 1100 square feet from respondent no. 1 and prayed for adding her as plaintiff in the suit. Learned counsel further submits that the respondent no. 2 has taken the ground that the defendants have been challenging the authority of her vendor in the suit, hence in order to protect her interest, she might be added as party, which was allowed vide impugned order dtd. 3/11/2017. But the defendants have challenged the right of the power of attorney holder to execute sale deeds in respect of purchased land of themselves to Bimla Devi and Kamal Kishore Prasad Singh and no prayer has been made with respect to intervenor-respondent as she has purchased a different property. With ulterior motive the power of attorney holder has put intervenor-respondent in this case as his principal Sureshwar Prasad Singh was seriously ill and power of attorney would have come to an end after his death. Learned counsel further submits that the suit has been filed by the power of attorney holder, respondent no. 1, seeking specific relief against the defendants on the basis of being the power of attorney holder of Sureshwar Prasad Singh and the intervenor-respondent could not claim to be added as plaintiff in the suit as she is one of the purchasers from the power of attorney holder of Sureshwar Prasad Singh and except for that she has no other interest in the suit. She is not herself the power of attorney holder. Learned counsel further submits that the intervenor is neither a necessary party nor even a proper party. In this regard, learned counsel referred to the decision of Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia v. Addl. Member Board of Revenue, reported in AIR 1963 SC 786 wherein it has been held that a 'necessary party' is one without whom no order can be made effectively and a 'proper party' is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Learned counsel further submits that although it has come in the impugned order that the defendant/petitioner did not make any objection to the prayer made by the respondent no. 2 in the intervention petition, but the same could not justify the passing of the impugned order since it is for the court to decide whether the intervenor is necessary party or proper party. But there is no finding recorded on the point and only on the ground that the plaintiff has no objection, the present intervention petition of the respondent no. 2 has been allowed. Thus, the learned counsel submits that the impugned order is bad in the eyes of law as the title suit has been filed in representative capacity on the basis of power of attorney and for this reason, a purchaser from the so called power of attorney holder cannot be added as plaintiff, moreover, no relief has been sought against such person.