Biran Singh And Ors vs Munindar Singh And Ors

The petitioners have filed this application for quashing the order dated 30.08.2012 passed by Sub-Judge-IV, Patna City in T.S. No. 139 of 2008. The

learned court below, as per impugned order, transposed the defendant 1st party in the category of plaintiffs on the petition of defendant 2nd set.

Heard learned counsel for the petitioners.

It appears that the plaintiffs filed the aforesaid T.S. No. 139 of 2008 on the file of Sub-Judge for declaration that the land mentioned in Schedule-I

of the plaint belongs to the joint family of plaintiff and defendant 1st party and that the defendant 2nd set has not acquired any title over the said land

on the basis of sale deed which was executed by defendant 1st party in his favour. The defendant 2nd set filed a petition before the court below under

Order 1 Rule 1, 3 and 10 (2) read with 151 of Code of Civil Procedure alleging therein that the defendant 1st set and plaintiffs are in collusion with

each other which is evident from the fact that the defendant 1st party instead of filing written statement, sworn an affidavit admitting the case of

plaintiffs. The plaintiffs have not sought any relief against the defendant 1st set. In view of submission of learned counsel for the defendant 2nd set,

the court below transposed the defendant 1st set to the category of plaintiffs.

Admittedly the suit has been filed for declaration with respect to a sale deed which was executed by the defendant 1st set in favour of the

defendant 2nd party. The defendant 1st set has supported the case of plaintiffs. The plaintiffs have serious objection that the defendant 1st set cannot

be transposed in the category of plaintiffs against their wish as they are dominus litus of the suit. The defendant 1st set has sold the land belonging to

joint family against the wishes of the plaintiffs and so they have sought relief against all the defendants including the defendant 1st set. In such

circumstances, the defendant 1st set cannot be transposed in the category of plaintiffs on the petition of defendant second set.

In view of above facts, I find that the order transposing the defendant 1st set in the category of plaintiffs on the application of defendant 2nd party

is not sustainable. As such the impugned order is set aside and this application is accordingly allowed.