BHADAI SHARMA Vs. BILTU SHARMA

JUDGEMENT

(1.) Heard learned counsel for the petitioner as well as the respondents.

(2.) The petitioner is aggrieved by the order dtd. 17/2/2023 passed by the learned Additional District Judge-5th, Bettiah in Title Appeal No. 36 of 2011 whereby and whereunder while allowing the application dtd. 14/9/2022 filed by the plaintiff/appellant/ respondent no.1, the learned 1st appellate court rejected the application dtd. 12/10/2022 filed under Order 23 Rule 1(A) read with Order 1 Rule 10(1) of the Code of Civil Procedure (for short 'the Code') by defendant/respondent no.5, petitioner, herein.

(3.) Learned counsel for the petitioner submits that the petitioner was defendant no.3 before the learned trial court and respondent no.1 was plaintiff who has filed a suit for partition claiming 1/3rd share in the suit property vide Partition Suit No. 40 of 1994. The suit was dismissed on contest and the respondent no.1 preferred Title Appeal No. 36 of 2011. The said title appeal was filed on 26/4/2011 and on 14/9/2022, an application was filed by the appellant/respondent no.1 seeking permission to withdraw the said appeal. At the same time, the petitioner also filed an application for his transposition in the said title appeal on the ground that the substantive interest of the petitioner was involved in pursuing with the appeal. The learned 1st appellate court though allowed the application filed by the appellant/respondent no.1, it dismissed the application of the petitioner filed for transposition which is under challenge before this Court.