DALGIRA DEVI Vs. RAMKRIT MALLAH

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned counsel for the respondents and I intend to dispose of the present civil miscellaneous petition at the stage of admission itself.

(2.) The instant petition has been filed under Article 227 of the Constitution of India against the order dtd. 21/12/2016 passed by the learned Sub-Judge II, Kaimur at Bhabhua in T.S. No. 274/1999 (F.D.), Registration No.3340/2014 whereby and where under the learned Sub-Judge has partially allowed the prayer of the Intervenor/Respondent 2nd set without impleading them as party to the suit.

(3.) Learned counsel for the petitioner submits that Title Suit No. 274/1999 has been filed by the plaintiff/petitioner in the Court of Subordinate Judge, Bhabhua for partition of 1/9 share in the properties mentioned in Schedule-A of the plaint. The defendants appeared and filed three sets of written statement and contested the case. By judgment and decree dtd. 17/10/2016, the learned Sub Judge-II passed the decree for partition of 1/9 share in favour of the plaintiff. Thereafter, the plaintiff applied for preparation of final decree before the Subordinate Judge II, Bhabhua on 22/11/2016 and accordingly, a Survey Knowing Pleader Commissioner was appointed. While the proceeding of final decree had been taking place, the intervenors/respondent 2nd set filed an application under Order 1 Rule 10 read with Sec. 151 of the Code of Civil Procedure (in short 'the Code') contending, inter alia that in the suit, written statement was filed on behalf of the defendant Nos. 2 and 4 in which in paragraph Nos. 15, 16 and 17 they stated about executing a sale deed bearing No. 6216 dtd. 23/6/1998 in favour of the father of the intervenors namely, Chandra Deo Dubey, with respect to Khata No. 74, Plot No. 324, area 4 decimals and handed over the possession to him over which they are residing after constructing a house. Learned counsel further submits that the intervenors have contended that by going through paragraph No. 16 of the written statement filed on behalf of the defendant Nos. 2 and 4, it would be evident that they have contended that they have executed sale deed no. 6215 in favour of the intervenors with respect to khata No. 74, Plot No. 334, area 28 decimal as well as with respect to Plot No. 372, area 16.5 decimal and have handed over the possession to them. Learned counsel further submits that it has further been contended on behalf of the intervenors that by going through paragraph No. 17 of the written statement filed by defendant no. 6 it would be evident that he executed sale deed No. 1848 dtd. 10/3/1997 as well as sale deed No. 8246 dtd. 4/8/1998, with respect to land situated in khata No. 74 Plot No. 334 area 4 x3/4 decimals, and sold the land to the intervenors who were put in the possession long back. Learned counsel further submits that it has further been contended on behalf of the intervenors that the plaintiff has deliberately not made them parties in the suit. They have also contended that their father Chandra Deo Dubey was the necessary party to the suit. Thus, the intervenors made a prayer to add them as party defendant and also to direct the Survey Knowing Pleader Commissioner to allot their acquired property in their favour which has been mentioned in Schedule Ka of the intervention petition. Learned counsel further submits that a rejoinder was filed on 6/12/2016 to the petition of the intervenors. After hearing the parties the learned Subordinate Judge II, Bhabhua on 21/12/2016 allowed the prayer of the intervenors to the extent that learned Trial Court directed the Survey Knowing Pleader Commissioner to allot the acquired properties of the intervenors in their favour as detailed in Schedule-Ka of the intervention petition. This order has been challenged by the plaintiff /petitioner before this Court.