Patna High Court
Kamshwar Singh And Anr vs Basmati Devi And Ors on 29 July, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1996 of 2017
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1. Kamshwar Singh
2. Amarnath Singh Both Sons of late Deonandan Singh Resident of Village and
P.O.- Purushotampur, P.S.- Maniari Kurhani, Distt.- Muzaffarpur.
... ... Petitioner/s
Versus
1. Basmati Devi W/o late Ram Sakal Thakur, M/O Ram Sevak Thakur, Mukhia
Gorakh Thakur, Resident of Village and P.O.- Purushottampur, Anchal-
Kurhani, P.S.- Maniyari, District- Muzaffarpur.
2. The State of Bihar, through Collector, Muzaffarpur.
3. Circle Officer, Kurhani,Muzaffarpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ashok Kumar Sinha, Advocate
Mr. Shyam Sunder Pandey, Advocate
For the State : Mr.Sajid Salim Khan,Sr. Advocate,SC-25
Mr. R.P.N. Tiwari, AC to SC-25
For the Respondent no.1: Mr. Yashraj Bardhan, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 29-07-2025
Heard learned counsel for both the parties.
02. The petitioners are aggrieved by the order dated
08.09.2017
passed by learned Munsif, West Muzaffarpur in Title
Suit No. 14 of 2015 whereby and whereunder the learned
Munsif allowed the application of intervenor respondent no. 1 as
defendant 2nd party.
03. Learned counsel for the petitioners submits that
the petitioners are plaintiffs before the learned trial court and
has filed a suit for confirmation of possession over the Schedule
1 land of the plaint and also sought permanent injunction
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restraining the defendants from interfering in peaceful
possession of the plaintiffs over the Schedule I land of the
plaint, situated in village Purushottampur, P.S. Kurahni at
present Maniari, Dist. Muzaffarpur, C.S. Khata No.- 183, C.S.
Plot No. 1041, R.S. Khata No. 598, R.S. Plot No. 2255 and
2256, Area- 22 decimal each.
04. Learned counsel further submits that the suit has
been filed against State of Bihar as the employees of State of
Bihar threatened to interfere with the peaceful possession of
petitioners over Schedule I land of the plaint. Learned counsel
further submits that the suit land is the purchased land of the
plaintiffs as father of the plaintiffs purchased the said land on
09.08.1955 and 10.02.1956 by way of registered sale deeds.
Learned counsel further submits that in Revisional Survey
Khatiyan, the suit land as described in Schedule 1 land of the
plaint, was wrongly and fraudulently recorded in the name of
“Bihar Sarkar”. During pendency of this suit and when the
evidence of the parties have been recorded, at the stage of
argument, the respondent no. 1 filed an application dated
21.07.2017 seeking impleadment in the suit as defendant. The
respondent no. 1 claimed that the suit land was acquired by the
intervenor/respondent from the ex-landlord through settlement
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much before the Revisional Survey and she has been coming
into its peaceful possession but in Revisional Survey the
disputed land was wrongly and illegally recorded in the name of
State of Bihar. The intervenor/respondent further submitted that
she filed a petition before the Consolidation Officer, Kudhani
under Section 10 (2) of the Bihar Consolidation of Holdings and
Prevention of Fragmentation Act and the Consolidation Officer
vide order dated 28.12.1978 directed for recording the name of
the respondent no. 1 in the Kaifiyat Column as Bakabjedar.
Learned counsel further submits that however the learned trial
court did not consider for a moment that the plaintiffs have
sought no relief against the respondent no. 1 and an effective
decree can always be passed even in absence of intervenor-
respondent. Even the claim of the intervenor-respondent no. 1,
which is based on a forged document, is palpably bogus since
document was a torn receipt which was unclear and did not
show anything in favour of the intervenor/respondent. However,
the Consolidation Officer asked for land survey report from
Amin as the State of Bihar was unrepresented before it. From
the said report of Amin, the Consolidation Officer held that the
intervenor/respondent was in possession over the suit land of
Plot No. 2255 and 2256 but the Amin report was collusive and
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the intervenor/respondent never came into possession of the suit
land. No documents have been filed by the intervenor/
respondent worth its name in support of her claim and the State
has also been helping the intervenor in frustrating the claim of
the plaintiffs/ petitioners.
05. Learned counsel referred to the decision of Ram
Lochan Sharan Vs. Sri Balmukund Yadav reported in 2006(4)
PLJR 65 wherein learned Single Judge of this Court held that
the plaintiff is master of his own litigation and intervenor cannot
dictate or lay down the terms of litigation.
Learned counsel further referred to the case of
Kauleshwai Devi @ Kauleshwari Gowalin Vs. State of Bihar
& Ors. reported in 2014(3) PLJR 10 wherein the learned Single
Judge held that plaintiff being dominus litis may choose the
person against whom he wishes to litigate and cannot be
compelled to sue a person against whom he does not seek any
relief. This decision was based on the decision of the Hon’ble
Supreme Court in the case of Kasturi v. Iyyamperumal, (2005)
6 SCC 733 wherein it has been held that Legislature clearly
meant that only the controversies raised as between the parties
to the litigation must be gone into, that is to say, controversies
with regard to the right which is set up and the relief claimed on
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one side and denied on the other and not the controversies
which may arise between the plaintiffs or the defendants inter se
or questions between the parties to the suit and a third party.
Learned counsel referred to the similar proposition
which was held in the case of Manoj Kumar Vs. Patna
Municipal Corporation reported in 2014(4) PLJR 300.
Learned counsel further referred to the case of Anil
Kumar Vs. Ramuday Singh reported in 2012(3) PLJR 323 in
support of his claim wherein the learned Single Judge did not
allow the impleadment of the intervenor as the ground claimed
for impleadment was easementary right and holding that the
intervenor has no direct or legal interest in the disputed property
and was not a necessary party, the learned Single Judge denied
the claim of the intervenor after holding that there must be a
right to some relief against such party in respect of the
controversies involved in the proceedings and no effective
decree can be passed in absence of such party.
Learned counsel further submits that similarly in the
present case no relief has been sought against the
intervenor/respondent no. 1 and it cannot be said that no
effective decree can be passed in absence of the intervenor/
respondent no. 1. Therefore, the intervenor/respondent no. 1 is
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neither a necessary party nor a proper party and therefore the
impugned order dated 08.07.2017 is not sustainable and the
same needs to be set aside.
06. Learned counsel appearing on behalf of the
intervenor/respondent no. 1 however contended that there is no
infirmity in the impugned order. It is evident from the
Revisional Survey Kahtiyan that the intervenor is in possession
of the suit land and in support of her claim survey documents
were filed by the intervenor and this fact finds mention in the
impugned order and the learned trial court has noted that the
proposed intervenor in support of her claim filed photocopy of
Parcha with respect to R.S. Plot No. 2255 and 2256, photocopy
of raiyati area slip with respect to R.S. Plot No. 2255 and 2256,
photocopy of chakbandi kahtiyan and photocopy of order dated
28.12.1978. So it cannot be said that she has not filed any
document in support of her claim. If the intervenor/respondent is
in possession, she has every right to get herself impleaded in the
suit since she is going to be directly affected if a decree is
passed in favour of the plaintiff/petitioners. Moreover, the claim
of the intervenor/respondent has been sustained by the
Consolidation Officer who recorded the finding that her name
should be entered in the Kaifiyat Column for being in
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possession of the suit land. In support of his contention, learned
counsel referred to paragraph no. 13 and 14 of the case of
Mumbai International Airport (P) Ltd. v. Regency Convention
Centre & Hotels (P) Ltd., reported in (2010) 7 SCC 417, which
reads as under:-
“13. The general rule in regard to
impleadment of parties is that the plaintiff in
a suit, being dominus litis, may choose the
persons against whom he wishes to litigate
and cannot be compelled to sue a person
against whom he does not seek any relief.
Consequently, a person who is not a party
has no right to be impleaded against the
wishes of the plaintiff. But this general rule
is subject to the provisions of Order 1 Rule
10(2) of the Code of Civil Procedure (“the
Code”, for short), which provides for
impleadment of proper or necessary parties.
The said sub-rule is extracted below:
“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 name 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.”
14. The said provision makes it clear that a
court may, at any stage of the proceedings
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(including suits for specific performance),
either upon or even without any application,
and on such terms as may appear to it to be
just, direct that any of the following persons
may be added as a party: (a) any person
who ought to have been joined as plaintiff or
defendant, but not added; or (b) any person
whose presence before the court may be
necessary in order to enable the court to
effectively and completely adjudicate upon
and settle the questions involved in the suit.
In short, the court is given the discretion to
add as a party, any person who is found to
be a necessary party or proper party.”
Learned counsel, thus, submitted that learned trial
court rightly allowed the impleadment application as the
respondent no.1 is necessary party having right title and interest
over Schedule I property of the plaint and her interest would be
jeopardized if she is not made party and it would also result in
multiplicity of litigation. Thus, learned counsel submits that
there is no illegality or infirmity in the impugned order.
07. Learned senior counsel appearing on behalf of the
State of Bihar supports the contention of the learned counsel for
the respondent no. 1. Learned senior counsel submits that if the
intervenor/respondent is in possession and she has got the
interest in the suit property, the learned trial court has rightly
impleaded her as defendant.
08. By way of reply, learned counsel appearing on
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behalf of the petitioners submits that it is strange case where
State is taking side whereas the State should be neutral in the
matter, if the records of right shows title of the State.
09. I have given my thoughtful consideration to the
respective submission of the parties and perused the record.
10. Order 1 Rule 10(2) of the Code of Civil Procedure
reads as under:-
“(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
name, 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.”
The Hon’ble Supreme Court in the case of Mumbai
International Airport (P) Ltd. (supra) has held that a necessary
party is a person who ought to have been joined as a party and
in whose absence no effective decree could be passed at all by
the court. If a necessary party is not impleaded, the suit itself is
liable to be dismissed. On the other hand, a proper party is a
party who, though not a necessary party, is a person whose
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presence would enable the court to completely, effectively and
adequately adjudicate upon all matters in dispute in the suit,
though he need not be a person in favour of or against whom the
decree is to be made. It has further been held that Order 1 Rule
10 (2) CPC is not about the right of a non-party to be impleaded
as a party, but is about the judicial discretion of the court to
strike out or add parties at any stage of a proceeding.
11. The Hon’ble Supreme Court in the case of Kasturi
(supra) 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.
12. Further, the Hon’ble Supreme Court in the case of
Sumtibai v. Paras Finance Co. Regd. Partnership Firm
Beawer (Raj.), reported in (2007) 10 SCC 82, has held that a
party having a semblance of interest in the suit property could
be impleaded as a party in the suit.
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13. Coming back to the facts of the case, the plaintiffs
have brought the suit asserting their right over the suit land as
title holder on the basis of some sale deed but surprisingly the
plaintiffs did not challenge the Revisional Survey Khatiyan
entry although their possession was being disturbed by the
Government officials on the basis of survey entry in the
Revisional Survey Khatiyan and the plaintiffs did not seek any
relief against such entry. Without seeking any relief against the
Revisional Survey entry when doubt has been created over title,
they approached the Court merely seeking confirmation of
possession over the suit property. In normal circumstances, any
person who has got right, title and interest over suit property,
and if the same is clouded by such entry, would naturally
challenge the entries but the same was not done by the
plaintiffs/petitioners. Moreover by the order of the
Consolidation Officer dated 28.12.1978, it appears that the
intervenor/respondent no. 1 was found to be in possession and
her name was ordered to be entered in Kaifiyat Column of
Khatiyan as Bakabjedar. If on the basis of the said document
and if the respondent no. 1 has claimed impleadment in the suit
of the plaintiffs, I am of the view that she has shown sufficient
interest in the subject matter of the suit and therefore, the Court
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has rightly impleaded her as party defendant.
14. In the light of the discussion made hereinabove, I
do not find any infirmity or error of jurisdiction of the learned
trial court and impugned order dated 08.09.2017, is affirmed.
15. Accordingly, the present petition is dismissed.
16. However, it is made clear that any observation
made hereinabove would not cause prejudice to either of the
parties.
17. Moreover, it is a suit of 2015 and 10 years have
since elapsed and the matter has been kept pending, it is
appropriate that learned trial court be directed to dispose of Title
Suit No. 14 of 2015 at the earliest and preferably within six
months from the date of receipt/production of a copy of this
order.
(Arun Kumar Jha, J)
Anuradha/-
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