The High Court · 2022
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Jurisdiction) CMP No. 773 of 2022 Sunit Kumar Chattoraj, s/o late Sunil Kumar Chattoraj, r/o Rabindra Niketan, Village- P.O. Kushmaha (Kusma) P.S. Rikhiya, District Deoghar …. Plaintiff/Petitioner Versus 1. Alka Devi @ Alaka Mukhopadhyay/Mukherjee @ Geeta Mukhopadhyay/ Mukherjee, w/o late Makhon Lal Mukhopoadhyay, r/ o 6/22 Poddar Nagar, Flat No. 7 (3rd Floor) PO + PS Jadavpur, Kolkata, also r/o at F-8, Katjunagar, Flat No.7, (3rd Floor), PS Jadavpur, Kolkata. 2. Asim Kumar Chattoraj, s/o late Susil Kumar Chattoraj, r/o Village + P.O. Mangladihi, PS Panrui, District Birbhum (West Bengal). 3. Sashim Kumar Chattoraj, s/o late Susil Kumar Chattoraj, r/o Village + PO Mangladihi, PS Panrui, District Birbhum (West Bengal). 4. Sumit Kumar Jha, s/o Shyamprit Jha, r/o Chakarborty Lane, Chandni Chowk, PO B. Deoghar, PS Deoghar, Nagar thana, District Deoghar. 5. Sudhir Kumar Rao, s/o Permeshwar Prasad Rao, r/o Rikhiya, PO & PS Rikhiya, District Deoghar. 6. Birendra Patralekh, s/o late Kameshwar Patralekh, r/o village Kushmaha, PO & PS Sarwan, District Deoghar. 7. Prem Chandra Rout, s/o late Radhey Rout, r/o Malhara, PO Malhara, PS Rikhiya, District Deoghar. ….... Defendants/Respondents 8. Rabindra Kumar Chattoraj, s/o late Sunil Kumar Chattoraj, r/o Ravindra Niketan,Village + PO Kushmaha (Kusma) PS Rikhiya, District Deoghar at present r/o Village + PO Mangladihi, PS Panrui, District Birbhum (West …....... Proposed Co-Plaintiff/Respondents Bengal). ------ CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR ------- For the Petitioner For the Respondent Nos.4-8 -------- Order No.08/Dated: 3 rd March 2023
Legal Reasoning
: Mr. Lakhan Chandra Roy, Advocate : Mr. K.S. Nanda, Advocate The petitioner who is the plaintiff in Original Title (D) Suit No. 80 of 2021 has challenged the order dated 2nd August 2022 by which the application filed by the respondent no.8 in this petition has been allowed and he is added as a co-plaintiff in the aforesaid title suit. 2. The learned Civil Judge (Senior Division)-V, Deoghar has held that since the learned counsel appearing for the defendants has not raised any objection to the application under Order 1 Rule 10 of the Code of Civil Procedure (in short, CPC), the same deserves to be allowed in the interest of justice. 2 CMP No. 773 of 2022 3. The learned lower Court has held as under: “The Plaintiff has filed the Misc. Petition U/O-I Rule 10 C.P.C the plaintiff has filed this present Title(Partition) suit against the defendants. This present suit is a partition suit. The plaintiff and defendant 1st party including the Intervenor-petitioner are the Bengolis and they are governed by Dayabhag School of Hindu law. That admitted one Sunil Chattoraj S/o- Ram Renu Chattoraj was the absolute owner of the land and properties compromised with the Jamabandi No. 27 and 29 of Mouza Kushmaha as well as other land and properties scattered in the surrounding villages, which were purchased by him on payment of lawful sale consideration amount vide sale deed No. 3062 for the year 1971. The said Sunil Kumar Chattattoraj in course of the lawful and peaceful possession of the properties he parted some part and parcel of land by way of registered deed of Gift to his sister Alka Devi and Prava Devi @ Prava Chattoraj alias Prava Mukerjees. It is relevant to state here that one Ram Renu Chattoraj had one son and one daughter namely Sunil Kumar Chattoraj and Alka Devi receptively. After the death of Sunil Kr. Chattoraj, which event took place in the year 2006 his three sons namely Sunit Kr Chattoraj, Rabindra Kr Chitoraj and Sujit Kr. Chattoraj stepped into the shoes of their father and started possessing over the said land and properties jointly left behind by him. The suit properties are ancestral properties of the plaintiff and intervenor petitioner including the youngest son of Sunil Kr. Chattoraj. All three sons of the said Sunil Kumar Chattoraj have equal right, title and interest possession over the suit properties. The Sunil Kumar Chattoraj and the Intervenor Petitioner and other family members always used to come at village Kushmaha to took after and manage their properties with certain intervals. The Intervenor Petitioner, has reasons to believe into his mind that the plaintiff may play any foul game to defeat the valuable Interest of the Intervenor petitioner in the suit properties or the plaintiff malfide and arbitrarily don safeguard the legal interest of the intervenor petitioner over the suit properties. Intervenor defendants may be added as co-placutif which as follows- Rabindra Kumar Chattoraj, S/o- Late Sunil Kumar Chattoraj, R/o- Rabindra Niketan, village+P.O.- Kushmaha, via Deoghar college, P.S- Rikhiya, Anchal Mohanpurm Subdivision and District- Deoghar at present village+PO Mangaladihi, via- Abinashpur, P.S.- Panrui, District Birbhum, West Bengal (731121). One of the defendant lawyer is appeared in the court and stated that they have no objection of this petition for adding Intervenor Petitioner namely Rabindra Kumar chattoraj as co- plaintiff in the suit. Hence, in the interest of justice this Misc. Civil Petition No.
Decision
119/2022 is hereby allowed and disposed off. O/c is directed to endorse the name of the petitioners in cause title of plaint as Intervenor co-plaintiff.….........” 4. Mr. K.S. Nanda, the learned counsel for the respondents has referred to paragraph no. 19 of the judgment in “Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi (D)” 2022 SCC OnLine SC 1307 which is quoted hereinbelow: “19. As already discussed hereinabove, the plaintiff himself has 3 CMP No. 773 of 2022 admitted in the plaint that the suit property is jointly owned by the defendant, his wife and three sons. A specific objection was also taken by the defendant in his written statement with regard to non- joinder of necessary parties. Since the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant's wife and three sons without impleading them. Even in spite of the defendant taking an objection in that regard, the plaintiff has chosen not to implead the defendant's wife and three sons as party defendants. Insofar as the reliance placed by Shri Chitnis on the judgment of this Court in the case of Kasturi (supra) is concerned, the question therein was as to whether a person who claims independent title and possession adversely to the title of a vendor could be a necessary party or not. In this context, this Court held thus: “7. …….From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are” (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.”” 5. In the first place, the expression in the interest of justice cannot be stretched to absurdity. Merely because the learned counsel appearing for the defendants did not raise any objection to the application for intervention, the Court is not relieved of its duty to examine whether the proposed intervenor is a necessary or proper party in the suit. At the same time, the Court is also expected to keep in mind that the decision of the plaintiff being the dominus litis must be given precedence and while so it is not necessary that every application for intervention must necessarily be allowed. 6. Order I Rule 10(2) CPC confers powers upon the Court to strike out a party who has been improperly added and to join a necessary party in the suit. It confers wide powers on the Courts to permit an application for addition of party in the suit and the only limitation under Rule 10(2) CPC is that the party should be a necessary or proper party. Who is a necessary party and who may be joined a proper party in a suit has been explained by the Hon'ble Supreme Court in “Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar” AIR 1963 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 is a proper party. 7. The respondent no.8 who claims that he has a valuable interest in the property comprised under gift-deed in favour of the defendants first 4 CMP No. 773 of 2022 party was not seeking his impleadment as a co-plaintiff, rather proposed to be a defendant in the suit. He has not challenged the gift-deed and while so, it must be held that he proposed to defend execution of the said gift-deed. Therefore, this can be inferred that he has relinquished all his right, title and interest in the property comprised under the gift-deed executed in favour of the defendant first party. 8. Not only that, the learned Civil Judge (Senior Division)-V, Deoghar has committed a serious error in law in transposing the respondent no.8 as co-plaintiff whereas, in his application under Order 1 Rule 10 of the CPC the respondent no. 8 has prayed for being arrayed as a defendant in the title suit. 9. 10. Accordingly, CMP No. 773 of 2022 is allowed. Consequently, the application under Order 1 Rule 10 of the CPC is dismissed. 11. Let a copy of the order be transmitted to the trial Court through FAX. RKM/ (Shree Chandrashekhar, J.)