VIRENDER KUMAR DUBEY Vs. DHRUPDEO MALI

JUDGEMENT

(1.) The instant civil miscellaneous petition has been filed by the petitioner for quashing the order dtd. 16/8/2022 passed in Title Suit No. 889 of 2017 by learned Sub Judge-XVI, Gopalganj, whereby and whereunder the petition dtd. 22/3/2022 filed under Order 1 Rule 10 and Sec. 151 of the Code of Civil Procedure (for brevity 'the Code') for adding the petitioner as a party defendant has been rejected.

(2.) Briefly stated, the facts leading to the present case are that the plaintiffs/respondents 1st set filed Title Suit No. 889 of 2017 on 17/10/2017 before the court of learned Sub Judge XVI, Gopalganj seeking declaration that the suit land is the purchased land of the plaintiffs and had been coming into their peaceful possession till the time they were dispossessed by the defendants 1st set/respondents 2nd set who are tresspassers. The plaintiffs further sought recovery of possession and entry of the suit land by the defendants 1st set in their sale deed as illegal and void. The plaintiffs also sought permanent injunction against the defendants 1st set from making any change over the suit land. The intervenor/petitioner, on coming to know about pendency of Title Suit No. 889 of 2017 on 8/3/2022, enquired into the matter, applied for certified copy of the plaint as well as order sheets and after obtaining these documents, filed impleadment petition under Order 1 Rule 10 and Sec. 151 of the Code for adding him as party defendant on the ground that the petitioner is a necessary and proper party having bonafide right, title and interest over the disputed land. The petitioner put forward his case that the land in question appertaining to Khata No. 130, Khesra No. 1232, 1233 and 1234, area 7 katha 10 dhurs situated in Mauza - Sareya, Ward No. 4, Thana No. 83 under P.S. and District - Gopalganj was khatiyani land of Dal Sah. On 1/12/1941, Dal Sah executed a registered gift deed in favour of his daughter Jyotiya and one Bikarma Sah and they came into peaceful possession over the land in question. Out of the said land, Jyotiya transferred 2 katha 10 dhurs land to the grandfather of the petitioner namely, Kamal Dubey on 30/8/1948 and Kamal Dubey came into possession over the said land. Kamal Dubey died leaving behind his son Bhrigunath Dubey, who died leaving behind his two sons, the petitioner Virendra Dubey and co-owner Ravindra Dubey. The petitioner and his brother came into joint possession on 2 katha 10 dhurs land. The petitioner raised 4 feet high boundary wall around the land. The petitioner further submitted that on the basis of the sale deed of 1948, the petitioner has been coming into title and possession of the suit land and therefore, he is a necessary party. However, the plaintiffs/respondent nos. 1 and 2 contested the claim of the petitioner by filing reply on 11/4/2022 and the learned trial court after hearing the parties dismissed the intervention petition of the petitioner vide order dtd. 16/8/2022. The said order is under challenge before this Court.

(3.) Learned counsel for the petitioner submitted that the impugned order is bad in the eyes of law as well as on facts. It is an arbitrary and illegal order. The learned trial court exceeded its jurisdiction in passing the impugned order. The learned trial court has failed to appreciate that the petitioner is a necessary and proper party having bonafide right, title and interest over the suit land. The learned trial court has not considered that it is the object of the provision under Order 1 Rule 10(2) of the Code to bring on record all the persons who are necessary parties to the dispute so that dispute may be finally determined in their presence and multiplicity of proceeding may be avoided. Learned counsel further submitted that the learned trial court has failed to consider that the grandfather of the petitioner had purchased 2 katha 10 dhurs land by virtue of registered sale deed dtd. 30/8/1949 and the same land is the suit property of Title Suit No. 889 of 2017. Learned counsel further submitted that the plaintiffs have deliberately not made the petitioner party and the learned trial court did not take this fact into consideration and rejected the application for impleadment only on the ground that the boundary of the land mentioned by the intervenor is different from the boundary of the land mentioned in the suit of the plaintiffs. The learned trial court has further held that the petitioner did not file on record the document of registered gift deed dtd. 1/12/1941 and only advanced his claim on the basis of the registered sale deed dtd. 30/8/1948. Learned counsel further submitted that the learned trial court further missed the point when it held that the plaintiffs have brought the suit against the defendants for recovery of possession and there appears no interest of the intervenor in the present suit.