Jageshwar Gope vs Jumini Devi

The petitioners were appellants in Appeal from Original Order No. 281 of 2002 which was filed against the order passed in Title Appeal No. 28 of

2000. In the Title Appeal they are respondents. They are aggrieved of order dated 24.12.2004 passed in the Title Appeal whereby now the application

under Order I Rule 10(2) CPC filed by the appellants for impleading legal heirs of Bishun Gope has been allowed.

Appellants in Title Appeal No. 28 of 2000 are the plaintiffs in Title (Partition) Suit No. 79 of 1995. The suit was instituted for a preliminary decree

for partition of Schedule-A properties to the extent of half share for the plaintiffs in the property and for a declaration that registered deed of gift dated

15.04.1988 executed by defendant no. 1 in favour of defendant no. 2 is void, collusive and not binding on the plaintiffs. Defendant no. 2 in the partition

suit is wife of the defendant no. 1. The plaintiffs have pleaded that Chamu Gope was common ancestor of the parties. He had four sons, one was

Khedan Gope. Lands comprised under khata nos. 2 and 6 of village-Lodahama were recorded in the name of Khedan Gope who at the time of his

death was in jointness with his brother Balak Gope. On his death his brother Balak Gope has inherited 1.71 acres land comprised under Plot No. 902

of Khata No. 6 and Plot Nos. 903 & 907 of Khata No. 2 in village-Lodahma, District-Hazaribagh. Balak Gope had three sons namely, Jhutan Gope,

Bansi Gope and Bishun Gope. Legal heirs of Jhutan Gope are plaintiffs in the partition suit.

According to the plaintiffs Bishun Gope died in the year, 1940 leaving behind his daughters who are married now. Jhutan Gope and Bansi Gope

were in joint possession of the suit lands. Bansi Gope is defendant no. 1 and his wife is defendant no. 2 in Title (Partition) Suit No. 79 of 1995.

Plea set-up by the plaintiffs is that Bansi Gope has illegally and fraudulently transferred the undivided joint family property in favour of his wife

through registered deed of gift dated 15.04.1988. The defendant no. 1 has claimed exclusive possession over the suit land on the basis of settlement

from Maharani of Ramgarh, Padma in Samvat 2003, who had acquired the suit land in auction sale in Case No. 41 of 1947-48. However, the plaintiffs

have claimed that the suit land was never sold in auction sale in the aforesaid case. It is further claim of the plaintiffs that hukumnama and other

documents on the basis of which defendant no. 1 has claimed exclusive possession over the suit land were manufactured, forged and fabricated.

One of the issues framed in the partition suit was on non-joinder of necessary parties. The trial court has answered this issue against the plaintiffs.

Partition suit was dismissed on contest vide judgment dated 24.04.2000. Aggrieved, the plaintiffs have preferred Title Appeal No. 28 of 2000. The

appellate court by judgment dated 18.10.2002 set-aside the judgment and decree in Title (Partition) Suit No. 79 of 1995, however, the suit was sent

back to the trial court to pass a fresh order after granting opportunity to the legal heirs of Bishun Gope to file written statement. This order was taken

in appeal before the High Court by the defendants. One of the grounds of challenge was that the remand order by the appellate court was not an

order under Rule 23 or Rule 23A and Rule 25 of Order XLI CPC. It was contended on behalf of the defendants that the order of remand for a fresh

decision by the trial court after impleading the legal heirs of Bishun Gope would amount to permitting the plaintiffs to fill-up lacuna in the case. The

Appeal from Original Order No. 281 of 2002 was allowed by the High Court by an order dated 22.06.2004 with a direction to the appellate court to

decide Title Appeal No. 28 of 2000 on merits, in accordance with law.

After this order, in Title Appeal No. 28 of 2000 an application was filed by the appellants for impleading Smt. Munia Devi, Smt. Dano Devi and

Smt. Mohini Devi who are daughters of late Bishun Gope. This application has been allowed by the appellate court by an order dated 24.12.2004.Â

Aggrieved, the defendants have approached this Court.

Mr. V. Shivnath, the learned Senior counsel for the petitioners contends that once this Court has held that permission to the plaintiffs to implead

necessary parties in the partition suit would amount to permitting the plaintiffs to fill-up lacuna in their case, the impugned order dated 24.12.2004

passed in Title Appeal No. 28 of 2000 by which daughters of late Bishun Gope have been impleaded in the pending appeal must be held illegal.

In Title (Partition) Suit No. 79 of 1995 suit schedule property, a preliminary decree for partition of which has been claimed by the plaintiffs, is

comprised under gift-deed dated 15.04.1988. The plaintiffs have claimed that the suit property which is the property of joint family has been illegally

transferred by defendant no. 1 in favour of his wife-defendant no. 2 and that is the reason a declaration that gift-deed dated 15.04.1988 is illegal and

inoperative has been sought by the plaintiffs. The suit was dismissed holding that gift-deed dated 15.04.1988 is valid and the property comprised

therein was not the property of joint family. On non-joinder of daughters of late Bishun Gope the plaintiffs took a stand that the said Bishun Gope died

in the year, 1940 and, therefore, his daughters were not entitled to claim share of their father-late Bishun Gope in the suit property.

Since gift-deed was held valid there was no occasion of partitioning the Schedule-A property and, therefore, even if the trial court has held that

Bishun Gope had died sometime in the year, 1958 question of impleading daughters of late Bishun Gope had not arisen. It was only after the 1st

appellate court has held gift-deed dated 15.04.1988 invalid by its order dated 18.10.2002 passed in Title Appeal No. 28 of 2000 holding that the

property comprised in the gift-deed is the joint family property, claim of the plaintiffs for partition can be adjudicated and this is the stage when non-

joinder of the legal heirs of late Bishun Gope would become relevant.

It is well-settled that a partition suit shall fail if every member of the family who can claim partition independently is not made party in the suit. No

doubt, non-joinder of necessary party is not such an incurable defect on account of which the suit must fail (refer : Order I Rule 9 CPC) and this is the

reason the Court on its own motion or on an application by a party to the suit can implead a person under Order I Rule 10 (2) CPC, but situation in a

partition suit is a little different.

The plaintiffs contested the suit taking a stand that late Bishun Gope had died in the year, 1940 and, therefore, they had chosen not to implead

daughters of late Bishun Gope in the partition suit, however, now since claim of the plaintiffs for partition shall be examined by the appellate court

daughters of late Bishun Gope who are necessary parties in the partition suit must be impleaded as parties in the pending appeal and that is why the

appellate court has now permitted the appellants to implead daughters of late Bishun Gope in Title Appeal No. 28 of 2000; appeal is a continuation of

the suit.

To further examine the contention raised on behalf of the petitioners, judgment of this Court needs to be examined. This Court by judgment dated

22.06.2004 has allowed Appeal from Original Order No. 281 of 2002 in the following terms :

“There is merit in this appeal and it succeeds. The appeal is hereby allowed and the impugned judgment is set-aside. The learned appellate

court below is directed to decide afresh Title Appeal No. 28 of 2000 on merit in accordance with law and to apply its mind afresh after giving an

opportunity of hearing to the learned counsel for both the parties within the period of three months positively from the date of receipt of this order or

from the date of the filing of a copy of this order by either of the parties which ever is earlier.

However, there shall be no order as to costsâ€​.

A perusal of the aforesaid judgment would disclose that main thrust of the argument advanced on behalf of the defendants was that without

recording a finding that re-trial in the suit is necessary the appellate court could not have reversed the judgment in partition suit and remitted back the

matter for a fresh decision. On impleadment of necessary parties this Court has made an observation that, “the order of remand for delivering a

fresh judgment giving an opportunity to the plaintiffs by filling-up the lacuna by impleading the necessary parties in the case would definitely be

illegalâ€. However, as would appear from the operative part of the judgment it was not that the order of remand by the appellate court was held by

this Court unsustainable for the reason that the appellate court had remanded the matter for impleadment of necessary parties. Effect of the aforesaid

judgment passed by this Court cannot be stretched too far to render the Title Appeal infructuous, or to say liable to be dismissed on account of a

technical flaw, that is, non-joinder of legal heirs of late Bishun Gope. All that the appellate court has now done is to implead the legal heirs of late

Bishun Gope.

And, the appellate court has confined the scope of the impugned order by making it clear that the appeal shall be decided on the basis of evidence

laid by the parties during the trial of Title (Partition) Suit No. 79 of 1995 which precisely was the direction of this Court in Appeal from Original Order

No. 281 of 2002. Moreover, by virtue of the impugned order dated 24.12.2004 the impleaded parties shall not be permitted to lead evidence and they

shall only be heard before a final decision in Title Appeal No. 28 of 2000 is rendered. Another aspect of the matter is that before this Court interfered

with order dated 28.10.2002 passed in Title Appeal No. 28 of 2000 daughters of late Bishun Gope were already impleaded and they have filed their

written statement. In my opinion, the impugned order is in consonance with the object behind Order 1 Rule 10(2) CPC which has been lucidly

explained by the Supreme Court in “Udit Narain Singh Malpaharia vs. Additional Member, Board of Revenue, Bihar and Another†reported in

AIR 1963 SC 786.

In the above facts and for the reasons indicated hereinabove, I am not inclined to interfere in the matter and accordingly, the writ petition is

dismissed.

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