Mahitosh Sinha vs Shyamapada Sinha and Others

L. Mohapatra, J.—Defendant No. 5 in T.S. No. 139 of 2002 pending in the Court of learned Civil Judge (Senior Division) 1st Court, Cuttack has Filed this revision challenging the order dated 4-8-2005 passed by the trial Court in the said suit rejecting the petition filed by the plaintiff for Withdrawal of the suit as well as allowing the application filed by the defendant No. 4 for his transposition to the category of plaintiff.

So far as, the first part of the, order regarding dismissal of the application filed by the plaintiff for withdrawal of the suit is concerned, it was fairly contended that the defendant No. 5 cannot challenge the said order and therefore this revision petition is confined to the order dealing with the application filed by the defendant No. 4 under Order 23, Rule 1 -A of the CPC for being, transposed to the category of the plaintiff.

Shri Mukherji, learned Senior Advocate appearing for the petitioner challenging the impugned order submitted that only where there is an affinity or identity of interest between the plaintiff and one or more of the defendants, such defendant can be allowed to be transposed to the category of plaintiff when the plaintiff makes an attempt to Withdraw the suit. In this regard learned Counsel for the defendant No. 4 opposite party submitted that the plaint as well as the written statement filed Before the trial Court would clearly indicate that the interest and identity of the plaintiff and defendants are same and therefore when the plaintiff made attempt to withdraw the suit, the petition filed by the defendant No. 4 to transpose as plaintiff has rightly been al lowed toy the trial Court.

In order to appreciate the rival contention of the parties, it is necessary to peruse the plaint as well as the written statement filed by the defendant No. 4. The plain tiff and defendants 4, 5 and 6 are the four sons and defendants 7, 8 and 9 are the three daughters of Rabindra Narayan Sinha According to the plaintiff they have intertest in the plaint-schedule D property which comprises of Ac. 0.080 decimals situated at Deulasahi, Cuttack where admittedly the defendant No. 4 and defendant No. 9 are residing in their separate residential house. The residential house in which defendant No. 5 resides had been constructed by his Wife in the year 1984-85 and the residential house under occupation of defendant No. 4 was constructed in the year 1998-99. The proprerties described in B and C schedules are situated in village Barundai under Jaipur Tahasil and the Civil Court, Cuttack has no territorial jurisdiction over the said properties but the suit was filed at Cuttack as ''D'' schedule property is situated at Cuttack, The defendant No. 4 in his written statement claimed 1/4 the share out of B-schedule property eliminatirig shares of three sisters on the ground that they had relinquished their, shares in favour of the four brothers. It goes without saying that the plaintiff also claimed l/7th share in the D-schedule property, When the plaintiff claimed that the house at Cuttack was constructed with the financial assistance rendered by him, defendant No. 4 denied said allegation in his written statement and submitted that the Cuttack house was constructed with the financial assistance rendered by his sister Kabita who has become a citizen of U.S.A. The plaintiff claimed that the defendant No. 4 without taking consent of the plaintiff constructed a house on the north-western corner of Schedule ''D'' land by utilizing the amount of Rs. 55,000/- advanced by the plaintiff to the defendant No. 4 and the same was denied by the defendant No. 4 in his written statement and it was contended by the defendant No. 4 that his residential house standing on the D-schedule property was constructed on the consent of other two co-sharers after, leaving 3/4th share for three brothers. From such averments made in the plaint as well as in the, written statement, it is clear that so far as D-schedule property is concerned, both the plaintiff and the defendant No. 4 have raised claims. Undisputedly, suit had been filed for partition of the property mentioned not only B-schedule properties but also D-scheduled property.

Shri Mukherji, learned Sr. Counsel appearing for the, petitioner cited some decisions in this regard, I have perused the decisions reported in Mathura Bai and Others Vs. Daryanamal and Others, , Govinda Iyer Vs. Kumar and Others, , Ajita Debi Vs. Musst. Hossenara Begum and Others, , Jethiben Vs. Maniben and Another, and Bijoli Prova Nandy Chowdhury Vs. State of West Bengal, . On reading of the aforesaid decisions it appears that the view taken by the Courts in these decisions with regard to transposition, is that only when interest and identity, are same between the plaintiff and one or more of the defendants, transposition is permissible. This view has also been repeated by the Karnataka High Court in the case ,of Sulemanji Sanibhai v. Abde All reported in 1995 (4) Cur CC3 27 Learned Counsel for the defendant No. 4 opposite party relied on a decision of this Court in the case of Gokulananda Jena Vs. Jadunath Jena and Others, and submitted that transposition of a party should be allowed where it is necessary for complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. The trial Court in the impugned order has taken note of the plaint as well as the written statement filed on behalf of the defendant No. 4 and held that substantial question pertaining to claim of defendant No. 4 over D-schedule property vis-a-vis claim of defendant No. 5 and the plaintiff can be decided in the suit. After perusal of the plaint and the written statement filed by the defendant No. 4 and defendant No. 5, I do not find any reason to differ with the said observation.

I, therefore, do not. find any merit in the civil revision petition and the same is dismissed.