1. Ankur Singh aged about 23 years S/o Late Dharamveer Bhadoria 2. Mrs. Sangeeta v. Jaichand Mahato, Resident of Uliyan, Kadma, P.O. and P.S. Kadma, Town Jamshedpur, Di
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P.No. 279 of 2022 1. Ankur Singh aged about 23 years S/o Late Dharamveer Bhadoria 2. Mrs. Sangeeta Singh aged about 52 years W/o Sri Arvind Kumar Singh 3. Mrs. Priti Singh aged about 49 years W/o Naveen Singh 4. Vinayak Singh aged about 48 years S/o Late Bhagwati Prasad Singh All Resident of M-9, Old Housing Colony, Adityapur, P.O. and P.S. Adityapur, District Seraikella-Kharsawan. …. …. Defendants/Petitioners 1. Bibekanand Mahato @ Kalicharan Mahato S/o Late Versus Jaichand Mahato, Resident of Uliyan, Kadma, P.O. and P.S. Kadma, Town Jamshedpur, District-East Singhbhum …. …. Plaintiff/Respondent 2. Dinobondu Mahato, S/o Late Amal Mahato 3. Shila Mahato W/o Late Debkumar Mahato 4. Jayanta Mahato, S/o Dinobondhu Mahato 5. Basanta Kumar Mahato, S/o Dinobondhu Mahato All Resident of village Udaipur, Burudih, P.S. and P.O. Gamharia, District-Seraikella-Kharsawan. …. Defendants/Respondents --------
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND For the Petitioners For the O.P.No. 2 to 5 : Mr. P.P.N.Roy, Sr. Advocate : Mr. Abhishek Kr. Dubey, Advocate -------- Order No. 16/ dated 21.10.2024 On behalf of petitioner, learned Sr. Counsel Mr. P.P.N.Roy and on behalf of O.P.No.2 to 5, learned Counsel Mr. Abhishek Kumar Dubey are present. 2. By way of this Civil Misc. Petition, the order dated 18.04.2022 passed by the learned Civil Judge (Senior Division-II) at Seraikella in Title Suit No. 53 of 2011 has been assailed. 3. The learned Sr. Counsel for the petitioners has submitted that the Original Suit No. 53 of 2011 was instituted by plaintiff-Bibekanand Mahato against Benubala Mahato and three others. In that suit the plaintiff has sought to declare the sale-deed dated 16.05.2011 executed by defendant No. 1 and 2 in favour of the defendant No. 3 & 4 as void ab initio and further relief for permanent injunction was also sought. The property in question is shown raiyati land situated at mouza Asangi, P.S. Adityapur, Revenue Thana No. 126 within Ward No.9 A.N.A.C., District-Seraikella-Kharsawan. The details of which is given at the foot of the plaint. 4. It is also further submitted that the plaintiff- Bibekanand Mahato has already executed a sale-deed in favour of the intervenor the petitioner herein in regard to the very land on 24.06.2010 and this very sale-deed is Annexure No.2 of this petition. One more sale-deed was also executed on behalf of plaintiff- Bibekanand Mahato in favour of petitioner of the very land on 23.07.2011 which is Annexure No.3 of this Civil Misc. Petition. 5. It is further submitted that during pendency of the Original Title Suit the compromise has arrived between the 2 plaintiff and the defendant No. 1 and 2 wherein the plaintiff has agreed not to contest the Title Suit pending before the Trial court. Therefore, the plaintiff has moved an application before the Trial Court to be transposed as plaintiff in the very suit but that application was disposed of by the Trial Court with the direction to implead petitioner as defendant in the very suit and the amendment was also incorporated in the plaint. Thereafter, the petitioners were impleaded as defendant No. 5 to 8. 6. Subsequently an application was also moved on behalf of defendant No. 5 to 8 to be transposed as a plaintiff in the very suit because the plaintiff has abandoned the suit and this very application was rejected by the Trial Court by passing the impugned order which is being assailed herein. 7. Per contra, the learned Counsel for the respondent has contended that earlier the petitioner had moved the application under Order I Rule 10 of C.P.C. which was also disposed of by the court-below and the petitioners were directed to be impleaded as defendant in the very suit in place of plaintiff as was prayed by the petitioner in the very application. Further another petition was moved on behalf of the newly impleaded defendant No. 5 to 8 who are petitioner herein with the prayer to be transposed as plaintiff in the very suit. That very application is also barred by the doctrine of res 3 judicata and the petitioner had never challenged the order passed on the first application under Order I Rule 10 of C.P.C. 8. Admittedly, the suit for cancellation of sale-deed is pending before the learned Trial Court in which the plaintiff had sought the cancellation of the sale-deed dated 16.05.2011 which was executed by defendant No. 1 & 2 in favour of defendant No. 3 & 4. The plaintiff had sought the declaration of that sale-deed to be void on the ground since the very sale-deed was executed without title and authority by the defendant No. 1 and 2 in favour of defendant No. 3 & 4. 8.1 This fact is also admitted to learned Counsel for respondent that during pendency of the suit the plaintiff had moved an application along with defendant No. 1 and 2 to compromise the suit. In that very application the plaintiff had decided that he has abandoned his right, title and interest in the property in suit. 8.2 Herein it would be relevant to reproduce the provision of Order 23, Rule 1-A of C.P.C.: 1-A. When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. 4 8.3 From the bare perusal of this provision it is apparent that the defendant may move the application for transposition as plaintiff under the two circumstances firstly if the plaintiff has withdrawn the suit or has abandoned his right, title or interest in the property in question; secondly, the defendant who is seeking to be transposed as a plaintiff has a question to be decided against the remaining defendant or the plaintiff as well in the property in suit. 8.4 Admittedly, the very first sale-deed was executed in favour of the petitioners by the plaintiff on 24.06.2010 and on the very basis of the sale-deed the petitioners are claiming themselves to be the raiyat of the very property in question since the plaintiff who had already executed sale-deed in favour of the petitioners who are defendant No. 5 to 8 in the original suit and plaintiff has abandoned his right in regard to the property in question the sale-deed of which had been executed by the defendant No. 1 & 2 in favour of 3 & 4. As such the only remedy available to the defendant No. 5 to 8 was to seek the transposition in the very suit as a plaintiff and to get the sale-deed declared void which had been executed by defendant No. 1 & 2 in favour of 3 & 4. The question in regard to the validity of the sale-deed dated 16.05.2011 is to be decided by the Trial Court against the defendant No. 3 & 4. 5 8.5 The plea raised on behalf of the learned Counsel for the petitioner that the second application for transposition as a plaintiff in the original suit moved by the petitioner is barred by principle of res judicata is not found sustainable reason being the petitioner who had moved the earlier application under Order I Rule 10 of C.P.C. to be impleaded as a plaintiff in the very suit claiming their right, title and interest on the basis of the sale-deed which had been executed by the plaintiff of the very suit in regard to the property in question in favour of the petitioners. The learned Trial Court did not grant the desired relief as was sought by the petitioners of that application on the application under Order I Rule 10 of C.P.C. which was moved earlier by the petitioners. The petitioners were impleaded as defendant No. 5 to 8 in the original suit. Now the defendant No. 5 to 8 who are the existing defendant in the original suit by way of the application under Order 1, Rule 10 and Order 23 1-A of C.P.C. have sought to be transposed as plaintiff in the very suit because the plaintiff has abandoned his right. As such the doctrine of res judicata will not apply since the learned Trial Court while disposing the first application under Order I Rule 10 of C.P.C. has decided the question between the plaintiff and then the petitioners of the application in regard to being party as a defendant to the suit for the adjudication of right between the parties. 6 9. Therefore, the impugned order which is passed by the learned Trial Court rejecting the application of the defendant No. 5 to 8 to be transposed as a plaintiff in the very suit bears infirmity and illegality and same needs interference by way of exercising power under Article 227 of the Constitution of India. 10. It is also pertinent to mention herein that the petitioners who are the defendant No. 5 to 8 of the Original Title Suit had also filed the written statement seeking therein counter claim against the plaintiff and the defendant No. 1 & 2 as well. By way of this very application for transposition as plaintiff the petitioner had also sought the rejection of the counter claim. 10.1 Since the petitioners who were the defendant No. 5 to 8 in the Original Suit have been transposed as plaintiff the counter claim if any which was sought by them in their written statement same has become infructuous. 11. Accordingly, this petition deserves to be allowed. 12. This petition is hereby allowed. The impugned order dated 18.04.2022 passed by the learned Civil Judge (Sr. Division-II) at Seraikella in Title Suit No. 53 of 2011 is set aside. The very application of defendant No. 5 to 8 of the Original Suit is hereby allowed and the learned Trial Court is 7 directed to transpose them as plaintiff in the Original Title Suit No. 53 of 2011. 13. Let the trial court be communicated in regard to the order for compliance. P.K.S (Subhash Chand, J.) 8