Patna High Court
Virender Kumar Dubey vs Dhrupdeo Mali on 8 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.671 of 2022
======================================================
Virender Kumar Dubey Son of Late Bhrigunath Dubey, Resident of Village-
Sasamusa, P.S.- Kuchaikot, District- Gopalganj.
... ... Petitioner/s
Versus
1. Dhrupdeo Mali Son of Adalat Manjhi, Resident of Sawnahi Patti, Tola
Dhum Nagar, P.S.- Fulwaria District- Gopalganj.
2. Kumari Kavita Wife of Dhrupdeo Mali, Resident of Sawnahi Patti, Tola
Dhum Nagar, P.S.- Fulwaria District- Gopalganj.
3. Sima Devi W/o Mukul Kumar Tiwari, Resident of Village- Kotwa, P.S.
Gopalganj Town, District- Gopalganj.
4. Sarita Devi W/o Mukul Kumar Tiwari, Resident of Village- Kotwa, P.S.
Gopalganj Town, District- Gopalganj.
5. Mukul Kumar Tiwari Son of Late Bharat Tiwari, Resident of Village-
Kotwa, P.S. Gopalganj Town, District- Gopalganj.
6. Dr. Subhash Chandra S/o Babu Bacha Prasad Roy, Resident of Village-
Chhathu Bathua, P.O. and P.S.- Uchakagaon District- Gopalganj
7. Smt Veena Roy W/o Dr. Subhash Chandra, Resident of Village- Chhathu
Bathua, P.O. and P.S.- Uchakagaon District- Gopalganj
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Chandrakant, Advocate
Mr.Vikash Kumar Shukla, Advocate
For the Respondent/s : Mr. Jitendra Kishore Verma,Advocate
Mr. Ranjan Kumar Srivastava, Advocate
Mr. Anjani Kumar, Advocate
Mr. Abhishek Kumar Srivastava, Advocate
Ms. Kumari Shreya, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 08-04-2025
The instant civil miscellaneous petition has been filed
by the petitioner for quashing the order dated 16.08.2022 passed
in Title Suit No. 889 of 2017 by learned Sub Judge-XVI,
Gopalganj, whereby and whereunder the petition dated
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
2/19
22.03.2022
filed under Order 1 Rule 10 and Section 151 of the
Code of Civil Procedure (for brevity ‘the Code’) for adding the
petitioner as a party defendant has been rejected.
2. Briefly stated, the facts leading to the present case
are that the plaintiffs/respondents 1st set filed Title Suit No. 889
of 2017 on 17.10.2017 before the court of learned Sub Judge-
XVI, Gopalganj seeking declaration that the suit land is the
purchased land of the plaintiffs and had been coming into their
peaceful possession till the time they were dispossessed by the
defendants 1st set/respondents 2nd set who are tresspassers. The
plaintiffs further sought recovery of possession and entry of the
suit land by the defendants 1st set in their sale deed as illegal and
void. The plaintiffs also sought permanent injunction against the
defendants 1st set from making any change over the suit land.
The intervenor/petitioner, on coming to know about pendency of
Title Suit No. 889 of 2017 on 08.03.2022, enquired into the
matter, applied for certified copy of the plaint as well as order
sheets and after obtaining these documents, filed impleadment
petition under Order 1 Rule 10 and Section 151 of the Code for
adding him as party defendant on the ground that the
petitioner is a necessary and proper party having bonafide right,
title and interest over the disputed land. The petitioner put
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
3/19
forward his case that the land in question appertaining to Khata
No. 130, Khesra No. 1232, 1233 and 1234, area 7 katha 10
dhurs situated in Mauza – Sareya, Ward No. 4, Thana No. 83
under P.S. and District – Gopalganj was khatiyani land of Dal
Sah. On 01.12.1941, Dal Sah executed a registered gift deed in
favour of his daughter Jyotiya and one Bikarma Sah and they
came into peaceful possession over the land in question. Out of
the said land, Jyotiya transferred 2 katha 10 dhurs land to the
grandfather of the petitioner namely, Kamal Dubey on
30.08.1948 and Kamal Dubey came into possession over the
said land. Kamal Dubey died leaving behind his son Bhrigunath
Dubey, who died leaving behind his two sons, the petitioner
Virendra Dubey and co-owner Ravindra Dubey. The petitioner
and his brother came into joint possession on 2 katha 10 dhurs
land. The petitioner raised 4 feet high boundary wall around the
land. The petitioner further submitted that on the basis of the
sale deed of 1948, the petitioner has been coming into title and
possession of the suit land and therefore, he is a necessary party.
However, the plaintiffs/respondent nos. 1 and 2 contested the
claim of the petitioner by filing reply on 11.04.2022 and the
learned trial court after hearing the parties dismissed the
intervention petition of the petitioner vide order dated
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
4/19
16.08.2022. The said order is under challenge before this Court.
3. Learned counsel for the petitioner submitted that
the impugned order is bad in the eyes of law as well as on facts.
It is an arbitrary and illegal order. The learned trial court
exceeded its jurisdiction in passing the impugned order. The
learned trial court has failed to appreciate that the petitioner is a
necessary and proper party having bonafide right, title and
interest over the suit land. The learned trial court has not
considered that it is the object of the provision under Order 1
Rule 10(2) of the Code to bring on record all the persons who
are necessary parties to the dispute so that dispute may be
finally determined in their presence and multiplicity of
proceeding may be avoided. Learned counsel further submitted
that the learned trial court has failed to consider that the
grandfather of the petitioner had purchased 2 katha 10 dhurs
land by virtue of registered sale deed dated 30.08.1949 and the
same land is the suit property of Title Suit No. 889 of 2017.
Learned counsel further submitted that the plaintiffs have
deliberately not made the petitioner party and the learned trial
court did not take this fact into consideration and rejected the
application for impleadment only on the ground that the
boundary of the land mentioned by the intervenor is different
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
5/19
from the boundary of the land mentioned in the suit of the
plaintiffs. The learned trial court has further held that the
petitioner did not file on record the document of registered gift
deed dated 01.12.1941 and only advanced his claim on the basis
of the registered sale deed dated 30.08.1948. Learned counsel
further submitted that the learned trial court further missed the
point when it held that the plaintiffs have brought the suit
against the defendants for recovery of possession and there
appears no interest of the intervenor in the present suit.
4. In support of his contention learned counsel for
the petitioner referred to a decision of this Court in the case of
Singheshwar Rai Vs. Babulal Rai and another, reported in
AIR 1980 Patna 187, wherein the learned Single Judge held
that the issues involved in the suit cannot be read as issues
involved between the parties to the suit and held that as opposite
party no. 2 had direct interest in the suit properties, the decision
of the learned Munsif was not bad or wrong that the presence of
opposite party no. 2 as a defendant was essential for
adjudicating upon all the issues involved in the suit effectively
and completely. Learned counsel also referred to a decision of
Hon’ble Supreme Court in the case of Razia Begum Vs.
Sahebzadi Anwar Begum, reported in AIR 1958 SC 886 which
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
6/19
was relied by the learned Single Judge. Learned counsel then
referred to a decision of this Court in the case of Shanti Singh
& Ors. Vs. Mr. Jugeshwar Nath Srivastava & Ors., reported in
2024(1) PLJR 493 wherein finding that petitioners have
substantial interest in the property in dispute, they were ordered
to be impleaded as co-appellants relying on the decision of
Kasturi Vs. Iyyamperumal, reported in (2005) 6 SCC 733 and
Mumbai International Airport Pvt. Ltd. Vs. Regency
Convention Centre & Hotels Pvt. Ltd., reported in (2010) 7
SCC 471. Thus, learned counsel submitted that the impugned
order is not sustainable in the eyes of law and same may be set
aside.
5. On the other hand, learned counsel appearing on
behalf of respondent nos. 1 and 2 vehemently contended that
there is no infirmity in the impugned order and the same does
not require any interference. Learned counsel for the
respondents submitted that the suit land originally belonged to
Dal Sah who died leaving behind two daughters, Jyotiya Devi
and Budhiya Devi. Budhiya Devi had a son Bikrama Sah, whose
wife was Parbati Devi and they had 4 sons, Nand Lal Sah,
Mohan Sah, Chote Lal Sah and Brij Lal Sah. The total area of
suit property appertaining to Khata No. 130, Plot Nos. 1232,
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
7/19
1233 and 1234 is 7 katha 11 dhurs and on 01.12.1941 the
original owner namely, Dal Sah gifted the entire land to his
daughters Jyotiya Devi and Budhani Devi. On 21.06.1983,
Jyotiya Devi and all the legal representatives of deceased
Budhiya Devi sold 2 katha 10 dhurs of land in favour of
defendant nos. 4 and 5 who took their respective possession,
mutated their names in revenue record, constructed their
boundary wall and fixed an iron gate and in boundary of these
sale deeds names of grandfather of intervenor or the intervenor
are not mentioned. Further, on 01.12.1993, Jyotiya Devi gifted 2
katha 13 dhurs of land in favour of her daughter namely,
Laxmina Devi, who came in its peaceful possession. Thereafter,
on 10.06.1994 and 14.08.1997 the legal representatives of
Budhiya Devi sold the remaining land, i.e., 2 katha 7.5 dhurs to
Beena Srivastava and after the death of Beena Srivastava, her
legal representative namely, Rajendra Prasad Srivastava and his
daughter and son sold the land to defendant nos. 1 to 3 on
03.03.2016 (two sale deeds) and on 14.03.2016 (one sale deed).
On 08.04.2015, defendant nos. 4 and 5 sold their purchased land
in favour of plaintiffs/respondents 1st set and handed over
peaceful possession. Accordingly, plaintiffs mutated their names
in revenue record and started their peaceful possession. Learned
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
8/19
counsel further submitted that some scuffle took place between
the plaintiffs and defendants 1st set with regard to right of
passage in the suit land and defendant no. 3 filed a complaint
case bearing Complaint Case No. 4300 of 2016 in which the
intervenor was a witness and was examined on 18.07.2016 and
he had been fully aware about possession, right and title of the
plaintiffs. The defendants 1st set also filed Title Suit No. 562 of
2017 for easementary right and permanent injunction against the
plaintiffs in which the name of intervenor is missing though
intervenor appeared as a witness in the complaint of defendants
1st set. Learned counsel further submitted that the claim of the
intervenor is based on sale deed executed by Jyotiya Devi in
favour of grandfather of the intervenor dated 30.08.1948 but the
name of grandfather of the intervenor-petitioner has not been
recorded in any revenue record nor he came in possession over
the land in question. Therefore, it is clear that the alleged sale
deed is a forged document and was created at the instance of
defendants 1st set only to delay the disposal of the case. Learned
counsel further submitted that the boundary as mentioned in the
plaint as well as intervention petition are different and
moreover, the intervention petition is based on forged document
and for this reason, the learned trial court has passed a perfectly
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
9/19
valid order.
6. Learned counsel further submitted that, in fact, the
petitioner has been set up by the defendants 1 st set. Despite
knowing about the pendency of the suit of the
plaintiffs/respondents 1st set, the defendants 1st set did not
appear in the case and set up the intervenor after manufacturing
forged document and the intervention petition was rejected by
the learned trial court. Meanwhile, 4 witnesses have been
examined on behalf of the plaintiffs and vide order dated
28.04.2023, the evidence of the plaintiffs was closed then the
defendants 1st set filed an application on 29.04.2023/09.05.2023
to recall the ex-parte order passed on 03.08.2018. The
intervention petition has been filed to delay the matter though
the intervenor-petitioner has all along been knowing about the
pendency of Title Suit No. 889 of 2017. Learned counsel further
submitted that the petitioner is neither a necessary party nor a
proper party. The alleged sale deed which has been filed by the
petitioner by way of supplementary affidavit never came into
picture anywhere prior to filing of the intervention petition.
Moreover, the petitioner is trying to canvas his own case and if
he is aggrieved, he has his own cause of action and he could
agitate the same by filing an independent suit. The
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
10/19
plaintiffs/respondents 1st set have not sought any relief against
the petitioner and question involved in the suit can be decided
without making the petitioner party and for this reason the
petitioner is neither a necessary nor proper party and his
presence is not necessary to effectively and completely decide
the suit. Learned counsel further submitted that the petitioner
did not file original sale deed and even before this Court he has
only filed photo copy.
7. Learned counsel referred to a decision of Hon’ble
Supreme Court in the case of Kasturi Vs. Iyyamperumal,
reported in (2005) 6 SCC 733, wherein the Hon’ble Supreme
Court considered who are necessary party or proper party and
held that the test for determining the question who is a
necessary party, are (i) there must be a right to some relief
against some party in respect of the controversy involved in the
proceedings and (ii) no effective decree can be passed in
absence of such party. Learned counsel submitted that in the
present case intervenor-petitioner is not even a proper party
whose presence may enable the court to proceed with the matter
and dispose it of effectively and completely though such person
may not be a necessary party. Learned counsel also referred to
another decision of learned Single Judge of this Court in
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
11/19
C.W.J.C. No. 8460 of 2014 (Uma Shankar Prasad & Ors. Vs.
The State of Bihar through the Collector & Ors.), wherein the
learned Single Judge held that the plaintiffs filed suit for
declaration of title over the suit property and also mentioned
that cause of action for the suit arose only after receiving a
notice by defendants alleging encroachment by the plaintiffs
over the suit land. The intervenors-petitioners claim their own
independent title denying the title of the plaintiffs as well as
defendants and the learned Single Judge held that relief sought
by plaintiffs is not detrimental to petitioners’ title and interest
which they might have over suit land as the decree to be passed
in suit could not be binding upon them. Learned Single Judge
further held that the person seeking to be added as party in the
suit, must be the person who would be bound by the result of the
suit which may legally affect him by curtailing his legal rights
over the suit property and thus refused to interfere with the
impugned order rejecting the claim of the intervenors-
petitioners.
8. Learned counsel for the respondents relied on two
decisions of this Court wherein this Court refused to allow the
impleadment of such persons who were found to be not
necessary or proper parties. Their presence was not found to be
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
12/19
necessary before the court to enable the Court to completely,
effectively and adequately adjudicate upon all matters. In the
case of Sunderpati Devi Vs. Most. Kishora Devi & Ors.
passed in Civil Miscellaneous Jurisdiction No. 1933 of 2017,
wherein this Court held that the scope of a suit for partition
cannot be enlarged to include declaration of status for a third
party. Similarly, in the case of Braj Bhushan Deva Vs.
Shambhu Devi and Others passed in Civil Miscellaneous
Jurisdiction No. 605 of 2016, wherein this Court found that
presence of intervenors was not at all necessary in the given
facts and circumstances. Thus, learned counsel submitted that
there is no infirmity in the impugned order and the same may be
affirmed.
9. I have given my thoughtful consideration to the
submission of the parties and have perused the record.
10. 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
name, of any person who ought to have
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
13/19been 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.”
11. The purpose and scope of Order 1 Rule 10(2) of
the Code has been settled by various decisions of 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 the Hon’ble Supreme Court has
discussed the law relating to impleadment of the parties. It will
be pertinent to quote paragraphs 13, 14, 15, 22, 25 & 27 of the
said judgment:-
“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:
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
14/19“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
(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.
15. 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
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
15/19
all by the court. If a “necessary party” is not
impleaded, the suit itself is liable to be
dismissed. A “proper party” is a party who,
though not a necessary party, is a person
whose 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. If
a person is not found to be a proper or
necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff.
The fact that a person is likely to secure a
right/interest in a suit property, after the suit is
decided against the plaintiff, will not make
such person a necessary party or a proper
party to the suit for specific performance.
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 who 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
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
16/19
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.
25. In other words, the court has the discretion
to either to allow or reject an application of a
person claiming to be a proper party,
depending upon the facts and circumstances
and no person has a right to insist that he
should be impleaded as a party, merely because
he is a proper party.
27. On a careful examination of the facts of this
case, we find that the appellant is neither a
necessary party nor a proper party. As noticed
above, the appellant is neither a purchaser nor
the lessee of the suit property and has no right,
title or interest therein. The first respondent-
plaintiff in the suit has not sought any relief
against the appellant. The presence of the
appellant is not necessary for passing an
effective decree in the suit for specific
performance. Nor is its presence necessary for
complete and effective adjudication of the
matters in issue in the suit for specific
performance filed by the first respondent-
plaintiff against AAI. A person who expects to
get a lease from the defendant in a suit for
specific performance in the event of the suit
being dismissed, cannot be said to be a person
having some semblance of title in the property
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
17/19
in dispute”.
12. Further, the Hon’ble Supreme Court in the
case of Kasturi v. Iyyamperumal (supra) held that for
determining the question who is a necessary party, the tests are
(i) there must be a right to some relief against some party in
respect of the controversy involved in the proceedings and (ii)
no effective decree can be passed in absence of such party. On
the other hand, a proper party is one whose presence may enable
the court to effectively and completely dispose of the matter.
13. Now coming to the facts of this case, the
intervenor-petitioner seeks impleadment on the ground that the
plaintiffs/respondents 1st set have instituted the suit against
defendants 1st set/respondents with regard to the suit property
which is the property of the intervenor-petitioner. Now, the
learned trial court did not allow the impleadment of the
intervenor-petitioner mainly on the ground that the boundary of
the property of the plaintiffs/respondents 1st set are different.
Further, the fact has been noted that the total area of the suit
plots were 7 katha 2 dhurs whereas both the plaintiffs and
defendants are claiming 2 katha 10 dhurs land. Thus there is
doubt over the identity of the suit property that the property of
the plaintiffs and the property of the intervenor are the same.
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
18/19
Further, the learned trial court has also taken note of the fact that
the intervenor has not produced the document dated 01.12.1941
making the claim of the intervenor-petitioner suspect. Further
more, the plaintiffs have not sought any relief against the
intervenor and are not claiming any right to some sort of relief
against him in respect of the dispute. Further, the court can pass
effective decree on the basis of the claim of the parties to the
suit and not dependent upon the intervention of the intervenor
for passing such decree. It is evident from the record that the
intervenor-petitioner has set up his own independent title over
the suit land and has denied the title of both the plaintiffs as well
as defendants. Even if the suit of the plaintiffs is decreed, the
same would hardly affect the right, title and interest of the
intervenor and in other words, it would not detrimental to the
interest of the intervenor-petitioner as the decree would not be
binding upon him. The result of the litigation would not affect
the intervenor legally and would not curtail his legal rights. The
intervenor-petitioner wants to further his own cause by seeking
impleadment but he is free to chart his own course by instituting
an independent suit for asserting his claim. But under the
provisions of Order 1 Rule 10(2) of the Code, the intervenor-
petitioner could not be joined as a defendant in the present case
Patna High Court C.Misc. No.671 of 2022 dt.08-04-2025
19/19
as he is only a busy body who is trying to intervene in the
matter.
14. In the light of discussion made, I am of the view
that none of decisions cited by learned counsel for the petitioner
is of any help to the case of the petitioner for the simple reason
that facts of those cases are quite different from the facts of the
present case.
15. Having regard to the facts and circumstances and
discussion made, I do not find any error of jurisdiction in
passing the impugned order by the learned trial court and hence,
the order dated 16.08.2022 is affirmed. Accordingly, the present
petition stands dismissed.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR AFR CAV DATE 28.01.2025 Uploading Date 08.04.2025 Transmission Date NA
[ad_1]
Source link