ANIL KUMAR PATHAK Vs. UMESH BHAGAT

JUDGEMENT

(1.) The present petition has been filed for setting aside the order dtd. 28/4/2017 passed by learned Munsif, Jamui in Title Suit No. 95 of 2016, whereby and whereunder the petition filed under Order 1 Rule 10(2) of the Code of Civil Procedure (in short 'the Code') by the intervenors has been allowed.

(2.) Briefly stated, the facts leading to the institution of the present civil miscellaneous petition are that the petitioners are plaintiffs in Title Suit No. 95 of 2016. The plaintiffs claimed Khesra Nos. 219 and 220 of Khata No. 36 are the land of the plaintiffs. 2 decimal of land of Khesra No. 220 came in possession of the predecessor of the plaintiffs through sale certificate issued in auction proceeding in Execution Case No. 35 of 1939 in the name of Rameshwar Pathak, who was grandfather of plaintiff/petitioner no. 1 and great grandfather of plaintiffs/petitioner nos. 2 and 3. After the death of Rameshwar Pathak, property belonging to him was partitioned between his two sons, namely Jairam Pathak and Bishunath Pathak, in Partition Suit No. 37 of 1979 and accordingly, Khesra No. 220 (entire) along with other khesras came in possession of Jairam Pathak, the father of petitioner no. 1 and grandfather of petitioner nos. 2 and 3, respectively. The father of petitioner no. 1 in his life time merged the land of Khesra Nos. 219 and 220 and constructed house/shops over the aforesaid land. Four shops were constructed upon Khesra No. 220 and their direction was from East to West and have been let out on rent to different tenants. There is a boundary wall of length 38 feet and height 15 feet and from north side of Khesra No. 220 which acts a boundary mark between Khesra Nos. 220 and 221. The defendant no. 1/respondent no. 3 is in possession of Khesra No. 221. The defendant no. 1/respondent no. 3 with an intention to grab the land of the petitioners, constructed a concrete pillar by cutting the wall of the petitioners situated on Khesra No. 220. Coming to know about the act of respondent no. 3, the petitioners moved before learned Sub-divisional Magistrate, Jamui for initiation of a proceeding under Sec. 144 of the Code of Criminal Procedure (in short 'Cr.P.C.) but the same was dropped vide order dtd. 14/6/2016 passed in Case No. 1035M of 2016 with observation that nature of dispute is about the demarcation of the land and as such it could be decided only by the competent court. The defendant no. 1/respondent no. 3 again tried to disturb the possession of the petitioners by constructing the house by merging part of the land of the petitioners and the petitioners again took shelter of law by filing a petition under Sec. 144 Cr.P.C. During the proceeding under Sec. 144 Cr.P.C., a petition was filed by intervenor Umesh Bhagat, respondent no. 1 of the present case, who prayed to make him a party in the proceeding in Case No. 1975M of 2016 which has been disposed of vide order dtd. 9/11/2016, whereby the learned Executive Magistrate rejected the intervenor petition of respondent Umesh Bhagat and the matter was dropped observing that the dispute between the parties is for demarcation of the land and the same could be decided by a competent court. Thereafter, the petitioners filed Title Suit No. 95 of 2016 making defendant nos. 1, 2 and 3 who are respondent nos. 3, 4 & 5 in the present petition as party since dispute was between the petitioners and respondent 2nd set. During pendency of the suit and after appearance of all the 3 defendants, respondent nos. 1 and 2 filed a petition under Order 1 Rule 10(2) of the Code for impleading them as intervenors/defendants on the ground that the land is of their ancestor by way of a Hukumnama dtd. 26/7/1941 issued in the name of one Aganu Bhagat. The plaintiffs/petitioners filed their objection against the intervenor petition and filed a rejoinder on 20/12/2016. The learned trial court, after hearing the parties allowed the petition filed by the intervenors. The said order is under challenge before this Court.

(3.) Learned senior counsel Mr. Ganpati Trivedi, appearing on behalf of the petitioners, submitted that the learned trial court has wrongly allowed the petition of the intervenors by ignoring the law. The learned trial court has not considered that according to law no person could be added against the wishes of the plaintiffs and the plaintiffs are masters of their own suit and no person can be allowed to intervene against the wish of the plaintiffs. The learned trial court has not considered that how the intervenors could be permitted to participate in the dispute between the others which is confined only to erection of a wall. The intervenors/respondent nos. 1 and 2 are neither necessary party in dispute between the plaintiffs and the original defendants nor proper party. Learned senior counsel further submitted that the whole claim of the intervenors is based on a Hukumnama dtd. 26/7/1941 issued by the then landlord Babu Keshav Prasad Goyanka in favour of one Aganu Bhagat but prior to that the ancestor of the petitioners purchased the suit land in auction in Execution Case No. 35 of 1939 in which Aganu Bhagat, the ancestor of the intervenors was a party. Learned senior counsel further submitted that the learned trial court has recorded a completely erroneous finding that the intervenors filed Register-II in support of their claim. It is an error of record and no Register-II has been file before the learned trial court. Learned senior counsel further submitted that since respondent nos. 1 and 2 are having no concern with the land in question and they are in collusion with other defendants, their impleadment in the suit is unwarranted, illegal and against the law. Learned senior counsel referred to a decision of Hon'ble Supreme Court in the case Vidur Impex and Traders Private Limited and others Vs. Tosh Apartments Private Limited and others with Bhagwati Developers Private Limited Vs. Tosh Apartments Private Limited and others, reported in (2012) 8 SCC 384 to stress the point that the intervenors are neither necessary nor proper parties and their conduct and collusion with other defendants make them unfit for impleadment.