RUPLAL RAJWAR vs DAMODAR RAJWAR

Aggrieved of order dated 15.01.2011 passed in Partition Suit No.27 of 1997 by which application filed by the plaintiffs for deleting the proforma-

defendant nos. 3 and 4 from the suit has been dismissed, the plaintiff no.3 has filed the instant writ petition.

Respondents have appeared through their counsels.

Partition Suit No.27 of 1997 was instituted by Hemant Rajwar, Nageshwar Rajwar and Ruplal Rajwar. In the suit, defendant No.3-Ramjivan Sahu

and defendant no.4-Shyam Sunder Sahu were labelled as proforma-defendants. The suit was instituted for a preliminary decree of partition for 1/3rd

share in the suit scheduled properties and for appointment of a survey knowing Pleader Commissioner for preparation of final decree. The suit was

contested by the defendants by filing separate written statements. Defendant nos. 3 and 4 have filed written statement asserting their claim over the

suit scheduled properties through Hukumnama dated 04.03.1943 granted by the ex-landlord in favour of their ancestor-Fagu Sao. They have claimed

that ex-landlord granted rent receipt to their ancestor-settlee. During trial of the suit the plaintiffs filed an application under Order I Rule 10 C.P.C for

deletion of defendant nos. 3 and 4 from the suit.

Referring to paragraph no.11 of the plaint, the learned counsel for the petitioner submits that no relief has been claimed against defendant nos. 3

and 4 and since in a partition suit a stranger is not a necessary party, defendant nos.3 and 4 should have been deleted from the array of parties in the

suit.

Contention raised on behalf of the petitioner is that if the defendant nos. 3 and 4 are permitted to contest the suit it would enlarge the scope of the

partition suit.

Who are necessary parties and who are proper parties in a suit has been 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. Multiplicity of litigation is another factor which is

generally taken into consideration while adjudicating the application for impleadment or deletion of parties. But, these are not the only tests which

are applied in an application under Order I Rule 10 C.P.C for adding or deleting a party in the suit. More than 50 years back, in “Amon Vs.

Raphael Tuck & Sons Ltd.â€​ reported in (1956) 1 All ER 273 it was observed:

 “The test is, may the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights.â€​

In the written statement, the defendant nos.3 and 4 have specifically denied the claim of the plaintiffs. They have set-up their independent title by

virtue of Hukumnama dated 04.03.1943 executed by the ex-landlord in favour of their ancestor-Fagu Sao. The defendant nos. 3 and 4 have claimed

that in the garb of partition suit the plaintiffs intended to grab their properties. Contention that in the partition suit in which the plaintiffs have laid a

claim by virtue of Hukumnama dated 18.06.1943, claim for right, title and interest of the defendant nos.3 and 4 on the basis of Hukumnama dated

04.03.1943 cannot be adjudicated, is unfounded. In the first instance, the plaintiffs themselves have made defendant nos. 3 and 4 parties in Partition

Suit No.27 of 1997. May be the plaintiffs have merely pleaded that the defendant nos. 3 and 4 were causing hindrance to their peaceful enjoyment

over the suit properties, once in the written statement the defendant nos.3 and 4 have set-up their own independent title over the suit scheduled

properties, decision in the Partition Suit No.27 of 1997 in their absence may adversely affect their rights. The learned trial judge has observed that the

defendant nos. 3 and 4 have subsisting and substantive interest in the pending litigation.

In the above facts, finding no infirmity in the approach of the trial judge, challenge to legality of the impugned order dated 15.01.2011 fails, and

accordingly the writ petition is dismissed.

Interim order dated 14.02.2011 stands vacated.

Let a copy of this order be transmitted to the trial court forthwith through 'Fax'.

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