SONAL DIWAN Vs. NEETA DIWAN

JUDGEMENT

(1.) IN this application under Article 227 of the Constitution of India the petitioner who is one of the defendants has challenged the order dated 7.3.2006 and 9.5.2006 passed by the sub -Judge, IInd, Koderma in Title Suit No. 17/01, whereby he has rejected the application filed by the petitioner for transposing her as plaintiff at the stage when plaintiff files petitioner for withdrawal of the suit.

(2.) THE facts of case lie in a narrow compass: Plaintiff/respondent Nos. 1 and 2 filed partition Title Suit No. 17 of 2001 seeking preliminary decree for partition of 1/6th share each in the suit property fully described in the schedule of the plaint and also for appointment of survey knowing Pleader Commissioner for survey out of their share and preparation of final decree. In the Amit Ambar Kachhap Versus Union Of India said suit, petitioner was not impleaded as defendant although, she is sister of the plaintiff and have share in the suit property. When petitioner came to know about the suit, she appeared and filed application under Order 1, Rule 10 of the Code of Civil Procedure for adding her as defendant in the suit. The said application was allowed by the Court below and, thereafter, petitioner filed her written statement claiming that she is entitled to get 1/4th share of the suit property. The Court below framed issues and fixed the suit for hearing.

(3.) THE undisputed fact as stated by the petitioner in the transposition petition is that one Baijnath Diwan died before the institution of the suit leaving behind plaintiff and defendant Nos. 1 to 4 and defendant Nos. 16 and 2 sisters as heirs and legal representatives. Petitioner is daughter of the defendant No. 1. The suit property is an ancestral property of the parties. Petitioner being grand -daughter claimed share in the suit property.