[ad_1]
Patna High Court
Shakila Khatoon And Ors vs Smt. Nirmala Devi And Ors on 30 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.929 of 2017
======================================================
1. Shakila Khatoon Wife of Md. Salimuddin.
2. Md. Salimuddin Son of Late Abdul Karim.
3. Md. Nahimuddin
4. Md. Wasimuddin, Both are minor sons of Md. Salimmuddin. Minors are
under the guardianship of their father Md. Salimu. All resident of Village-
Chakand Karbala, P.S.- Chandauti, District- Gaya.
... ... Petitioners
Versus
1. Smt. Nirmala Devi Wife of Sri Ram Pravesh Sharma.
2. Sri Shushil Kumar Son of Sri Ramratan Singh. Both are Resident of Village-
Chakand Garh, P.S.- Chandauti, District- Gaya.
3. Ram Rati Devi Wife of Late Sharda Nand Singh Resident of Village-
Chakand Garh, P.S.- Chandauti, District- Gaya.
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Sumant Kumar Singh, Advocate
Mr. Rajesh Kumar Sharma, Advocate
For the Res. Nos. 1& 2 : Mr. Sanjay Kumar, Advocate
For the Res. No. 3 : Mr. Jay Prakash Singh, Advocate
Mr. Sanjeev Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 30-04-2025
The present Petition has been filed by the petitioners
for quashing the order dated 17.04.2017 passed by the learned
Sub Judge-I, Gaya in Title Suit No. 746 of 2015 whereby and
whereunder the application filed under Order 1 Rule 10(2) of
the Code of Civil Procedure, 1908 (hereinafter referred to as
'the Code') by the respondent no. 3 has been allowed and she
was directed to be impleaded as defendant no. 3 in the suit.
02. Briefly stated, the facts of the case are that the
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
2/13
petitioners have filed Title Suit No. 746 of 2015 seeking
declaration of their title over the suit land. The case of the
petitioner is that one Ram Pyari Devi, wife of Shiv Nandan
Singh was the recorded raiyat of the land in question along with
other lands. She had two daughters, namely Ramrati Devi and
Chandeshwari Devi. Ramrati Devi was married with Suryadeo
Singh @ Surajdeo Sharma. Out of this wedlock, they had a son,
namely Upendra Sharam. Rampyari Devi gifted the suit
property to her daughter Chandeshwari Devi and her grandson
Upendra Sharma on 05.08.1981. Ramrati Devi died prior to
05.08.1981
and for this reason, Rampyari Devi executed the
registered deed of gift in favour of her daughter Chandeshwari
Devi and her grandson Upendra Sharma. Subsequently, Upendra
Sharma also died. Suryadeo Singh became the owner of the
entire suit land on survivorship. This person, Suryadeo Singh,
executed four sale deeds dated 15.12.2011, 19.05.2012,
09.08.2012 and 28.05.2013 in favour of the plaintiffs/petitioners
for an area of 17 ½ decimals. After mutation, the land receipts
were granted in the name of plaintiffs who came into effective
control and occupation of the suit land. When the defendant nos.
1 and 2 started disturbing the possession of the plaintiffs over
the suit land, the plaintiffs filed the present title suit seeking
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
3/13
declaration of their title on the suit land. On the other hand,
defendant/respondent nos. 1 and 2 appeared and filed their
written statement in the title suit denying the title of the
petitioners claiming that though Upendra Sharma died, her
mother Ramrati Devi was alive and she is still alive and it was
Ramrati Devi who succeeded to the interest and properties of
her son and not her husband. Ramrati Devi transferred the land
in question through registered sale deed dated 30.12.2014 in
favour of defendant/respondent nos. 1 and 2 and they have come
in possession of the suit land. During the pendency of the suit,
respondent no. 3, Ramrati Devi filed an application seeking
impleadment before the learned trial court. Ramrati Devi
submitted before the learned trial court that she and her sister
Chandeshwari Devi inherited and succeeded to the properties
left by their parents and subsequently, both the sisters
partitioned the property and came into peaceful possession of
the same. Chandeshwari Devi is in possession over her share of
the property whereas Ramrati Devi came in possession of the
share allotted to her. Respondent no. 3 further submitted that she
had sold most of her land through registered sale deed dated
30.12.2014 to the defendant nos. 1 and 2 and they are in
possession over their purchased land. Respondent no. 3 mostly
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
4/13
resides at Ludhiyana (Punjab) with her second husband as she
had solemnized second marriage after death of her husband
Surajdeo Sharma. Surajdeo Sharma was sent to jail on charges
of murder of their son Upendra Sharma. The respondent no. 3
came to know about the claim of the plaintiffs/petitioners with
regard to execution of four sale deeds by Surajdeo Sharma
claiming respondent no. 3 had died before 1981 and coming to
know about this wrong averment made in the plaint, she filed
application seeking impleadment in the suit as one of the
defendants. The learned trial court after hearing the parties,
allowed the application filed by the intervenor/respondent no. 3,
Ramrati Devi vide order dated 17.04.2017 and the said order is
under challenge before this Court.
03. Learned counsel for the petitioners, at the outset,
submitted that the lady claiming herself to be Ramrati Devi is a
fictitious character and the defendant/respondent nos. 1 and 2
have put her in order to grab the land of the petitioners. The
defendant/respondent nos. 1 and 2 planted a fake woman
committing fraud, wanted to grab the suit land of the petitioners
and the petitioners lodged Chandauti P.S. Case No. 114 of 2016
under Sections 419, 420, 467, 468, 471, 379, 120(B) of the
Indian Penal Code on 09.04.2016. As the matter was not
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
5/13
inquired properly, the plaintiffs/petitioners approached this
Court by filing Cr.W.J.C. No. 460 of 2017 and this Court
directed the Senior Superintendent of Police, Gaya to review the
matter at his own level. This Court gave liberty to the petitioners
to file appropriate application in the learned trial court,
requesting the court to pass appropriate order to monitor the
investigation and ensure submission of police report at the
earliest. During investigation, I.O. produced death certificate of
Ramrati Devi which was sent to the Registration Office,
Birth/Death, Gaya for verification, but the same could not be
verified due to lack of the relevant register. I.O. also recorded
that despite repeated request, defendant nos. 1 and 2 did not
make any endeavour for appearance of Ramrati Devi. Learned
counsel, thus, submitted that a fictitious lady has been planted
by the defendant/respondent nos. 1 and 2 as she appeared before
the learned Civil Court but she has not appeared before the
Criminal Court. Learned counsel further submitted that even
otherwise, Ramrati Devi has no interest left in the suit property
as she herself admitted in Para-4 of her intervenor application as
well as in her written statement that she has already sold the suit
land to the defendant nos. 1 and 2. She has specifically pleaded
in paragraph-16 of her written statement that in due course she
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
6/13
had sold her land measuring 32.36 decimal and 96 ¼ decimal to
the defendant nos. 1 and 2 through registered sale deeds dated
30.12.2014 and the purchasers are in possession of their
purchased land. This fact has also been admitted by the
purchasers, defendant/respondent nos. 1 and 2 in paragraph-12
of their written statement. Learned counsel further submitted
that Ramrati Devi was already dead, her mother gifted the
property to her grandson and to her another daughter.
Subsequently, a partition took place between the Chandeshwari
Devi and Suryadeo Singh @ Surajdeo Sharma as Upendra
Sharma was already dead. This partition took place with the
intervention of Panchas on 06.02.2012 and it was duly signed
by Panchas as well as Sarpanch of the Village Panchayat.
Thereafter, out of necessity, Surajdeo Sharma sold the land to
the plaintiffs through four registered sale deeds and they got
their names mutated in the record and started paying rent to the
State of Bihar. For this reason, as Ramrati Devi is a fake
woman, sale deeds executed by her is void ab initio as she has
got no right or interest to get herself impleaded in the title suit
filed by the plaintiffs/petitioners. This respondent in collusion
with defendant/respondent nos. 1 and 2 who wanted to grab the
land of the plaintiffs/petitioners and she has got no interest
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
7/13
in the property and her impleadment is not required for just and
proper decision of the suit when her vendees are already on
record and contesting the suit. Thus, the learned counsel
submitted that the impugned order could not be sustained and
the same be set aside.
04. Learned counsel appearing on behalf of
respondent nos. 1 and 2 vehemently contended that there is no
infirmity in the impugned order and the learned trial court
rightly ordered for impleadment of respondent no. 3 in the suit.
Admitting the genealogy, learned counsel submitted that after
death of their parents, Ramrati Devi and Chandeshwari Devi
partitioned the property and sold some of their lands. In
furtherance thereto, Ramrati Devi sold some of her lands in
favour of Nirmala Devi-respondent no.1 and Sushil Kumar-
respondent no. 2 by two registered sale deeds, both dated
30.12.2014. As some dispute arose with regard to partition of
the landed property, then in presence of local Panch, joint
family property was divided on 09.09.2015 by way of
Panchanama signed by the local Sarpanch of the Gram
Panchayat and other Panchas. Learned counsel further
submitted that coming to know about petitioners having
purchased her share, respondent no. 3 filed Complaint Case No.
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
8/13
647 of 2016 before the learned CJM, Gaya in which cognizance
was taken against five accused persons. The proceeding under
Sections 144 Cr.P.C. was also initiated and vide order dated
17.10.2015, learned Sub Divisional Magistrate closed the
proceeding by holding that the issue of title between the parties
could be decided by a court having competent jurisdiction.
Learned counsel further submitted that plaintiff/petitioners
claimed that Ramrati Devi is a fictitious lady but she has
appeared before the learned trial court through her counsel and
refuted the stand of the petitioners. She had also filed a petition
on 05.05.2016 before SSP Gaya for protection of her life and
properties. Learned counsel further submitted that the learned
trial court did not commit any error. The plaintiffs/petitioners
are claiming title over the suit property on which the respondent
no. 3 makes her claim and has executed sale deeds in favour of
defendant/respondent nos. 1 and 2. Respondent no. 3 is the
rightful owner of the suit property and has sold some part of her
holding to the defendant nos. 1 and 2. Therefore, for
determination of controversy between the parties, her presence
is necessary. The learned trial court took into consideration this
fact and also the intervenor application of the respondent no. 3
and the same is in accordance with the provisions of Order 1
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
9/13
Rule 10(2) of the Code. The presence of respondent no. 3 is
necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit. The learned trial court is competent to
verify the claim of the plaintiffs/petitioners about respondent no.
3 being a fictitious lady and only on this ground, the claim of
the respondent no. 3 could not be declined. Learned counsel also
submitted that there remains some other property of the
intervenor/defendant no. 3/respondent no. 3 and it is not that she
has disposed of all her properties and if her impleadment is not
allowed, then her right and title over rest of the properties would
adversely be effected. Thus, the learned counsel submitted that
the impugned order does not need any interference of this Court.
05. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. Order 1
Rule 10(2) of the Code reads as under: –
“10 (2). Court may strike out or add
parties – The Court may at any stage of the
proceedings, either upon or without the
application of either party, and on such
terms as may appear to the Court to be
just, order that the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
10/13name, of any person who ought to have
been joined, whether as plaintiff or
defendant, or whose presence before the
Court may be necessary in order to enable
the Court effectually and completely to
adjudicate upon and settle all the questions
involved in the suit, be added.”
06. Obviously, the court has got ample power to add
or strike out the name of any person at any stage of the
proceeding. It is entirely at the discretion of the court and the
said discretion is to be exercised by the court for effectually and
completely to adjudicate upon and settle all the questions
involved in the suit. The Hon’ble Supreme Court in the case of
Mumbai International Airport (P) Ltd. v. Regency Convention
Centre & Hotels (P) Ltd., reported in (2010) 7 SCC 417 in
Para-22 has held as under:-
“22. Let us consider the scope and ambit
of Order 1 Rule 10(2) CPC regarding striking
out or adding parties. The said sub-rule is not
about the right of a non-party to be
impleaded as a party, but about the judicial
discretion of the court to strike out or add
parties at any stage of a proceeding. The
discretion under the sub-rule can be exercised
either suo motu or on the application of the
plaintiff or the defendant, or on an
application of a person who is not a party to
the suit. The court can strike out any party
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
11/13who is improperly joined. The court can add
anyone as a plaintiff or as a defendant if it
finds that he is a necessary party or proper
party. Such deletion or addition can be
without any conditions or subject to such
terms as the court deems fit to impose. In
exercising its judicial discretion under Order
1 Rule 10(2) of the Code, the court will of
course act according to reason and fair play
and not according to whims and caprice.”
(Underline supplied)
07. Furthermore, the Hon’ble Supreme Court in the
case of Kasturi v. Iyyamperumal, reported in (2005) 6 SCC
733, held that ‘necessary parties’ are those persons in whose
absence no decree can be passed by the Court or that there must
be a right to some relief against some party in respect of the
controversy involved in the proceedings. On the other hand
‘proper parties’ are those whose presence before the Court
would be necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit although no relief in the suit was claimed
against such person. Also, in the case of Udit Narain Singh
Malpaharia v. Addl. Member Board of Revenue, reported in
AIR 1963 SC 786, the Hon’ble Supreme Court held that a
necessary party is one without whom no order can be made
effectively and a proper party is one in whose absence an
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
12/13
effective order can be made but whose presence is necessary for
a complete and final decision on the question involved in the
proceeding.
08. The court can order for impleadment even against
the wishes of the plaintiff if a party has a direct and legal
interest in the subject matter of the property. With regard to said
proposition, reliance could be placed on the decisions of
Hon’ble Supreme Court rendered in the case(s) of Vidur Impex
& Traders (P) Ltd. v. Tosh Apartments (P) Ltd., reported in
(2012) 8 SCC 384 and Ramesh Hiranchand Kundanmal v.
Municipal Corporation of Greater Bombay, reported in (1992)
2 SCC 524.
09. Coming to the facts of the present case. There
could be no denial of the right and interest of Ramrati Devi in
the suit property whether it devolved upon her through her
deceased son or devolution by way of survivorship after death
of her mother. The main thrust of argument and challenge to
impleadment of respondent no. 3 is on the ground that she is not
the real Ramrati Devi and she is a fictitious lady who has been
planted by defendant/respondent nos. 1 and 2. It appears this
issue is already before the authorities and the court. Merely on
the ground that the plaintiffs/petitioners challenged the status of
Patna High Court C.Misc. No.929 of 2017 dt.30-04-2025
13/13
respondent no. 3, her impleadment could not be denied in a suit
where Ramrati Devi is stated to have substantial interest.
10. So far as claim of the plaintiffs/petitioners about
respondent no. 3 alienating most of her land is concerned, even
then being the vendor of the defendant/respondent nos. 1 and 2,
her presence may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all the
questions involved in the suit.
11. In the light of aforesaid discussion, I do not find
any error of jurisdiction in passing the impugned order by the
learned trial court. Hence, the impugned order dated 17.04.2017
passed by the learned Sub Judge-I, Gaya in Title Suit No. 746 of
2015, is hereby affirmed.
12. Accordingly, the present Civil Misc. Petition
stands dismissed.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR CAV DATE 12.02.2025 Uploading Date 30.04.2025 Transmission Date NA
[ad_2]
Source link