GHANESHYAM MAHATO Vs. NAD PRAKASH MAHATO

JUDGEMENT

(1.) The petitioner claiming a valuable right, title and interest in the suit schedule properties filed an application under Order-I Rule 10(2) CPC for his impleadment in Title (Partition) Suit No.50 of 1987 on the ground that his mother was one of the legal heirs of late Panchanan Mahto and while so, he has a right in the ancestral property. This application has been dismissed by an order dated 02.02.2018. Aggrieved, the petitioner has approached this Court.

(2.) Title (Partition) Suit No.50 of 1987 was instituted by Durga Charan Mahto for a preliminary decree for partition to the extent of half share in the suit schedule properties. One Bharat Mahto who was own brother of the plaintiff was made the sole defendant in the suit. The suit was decreed vide judgment dated 30.11.1990 and a preliminary decree was prepared on 15.12.1990. Against the judgment and decree in Title (Partition) Suit No.50 of 1987, First Appeal bearing No.51 of 1991 was filed which was dismissed by judgment dated 29.01.2002. The Letters Patent Appeal being L.P.A. No.457 of 2002 and Special Leave Petition being S.L.P.(C) No.6012 of 2008 were also dismissed. Now, in the final decree proceeding the petitioner appears and stakes a claim in the suit schedule properties on the ground that his mother shall have a share in the ancestral property owned by late Panchanan Mahto. In his application dated 04.08.2017, he has asserted that genealogical table filed in Title (Partition) Suit No.50 of 1987 was not correct and, infact, late Panchanan Mahto had three daughters- Apan Mahto, Pasan Mahto and Anna Mahto; Pasan Mahto is mother of the petitioner. The petitioner has further asserted that for complete and effective adjudication of the issue involved in the suit, his presence is necessary.

(3.) Whether a person is a necessary party or a proper party in the suit has been explained by the Supreme Court in "Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar and Another reported in, 1963 AIR(SC) 786". It has been held that the one whose presence is necessary for effective adjudication of the dispute is a necessary party and the one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding is a proper party. Under Order-I Rule 10(2) CPC the Court may at any stage of the proceeding, either suo-motu or upon an application of a party, struck out the name of any party who has been improperly joined and name of any person who ought to have been joined may be added in the suit. This power under Order-I Rule 10(2) CPC is grounded on justice, equity and good conscience.