Patna High Court
Ashok Prasad Azad vs Sumitra Devi on 18 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.755 of 2024
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1. Ashok Prasad Azad Son of Late Ram Lakhan Sao resident of Village- Mor
English, P.S.- Mokama, District- Patna, Bihar, Pin Code 803302.
2. Kumar Vikki Anand, Son of Ashok Prasad Azad resident of Village Mor
English, P.S. Mokama, District Patna, Bihar, Pin Code 803302.
3. Kumar Santanand, Son of Ashok Prasad Azad resident of Village Mor
English, P.S. Mokama, District Patna, Bihar, Pin Code 803302.
4. Kumar Vivekanand, Son of Ashok Prasad Azad resident of Village Mor
English, P.S. Mokama, District Patna, Bihar, Pin Code 803302.
... ... Petitioner/s
Versus
1. Sumitra Devi W/o Late Jagdish Sao, resident of Village- Mor English, P.S.-
Mokama, District- Patna, Bihar, Pin Code- 803302.
2. Rajesh Sao, Son of Late Jagdish Sao, resident of Village- Mor English, P.S.-
Mokama, District- Patna, Bihar, Pin Code- 803302.
3. Ganesh Sao, Son of Late Jagdish Sao, resident of Village- Mor English, P.S.-
Mokama, District- Patna, Bihar, Pin Code- 803302.
4. Dinesh Sao, Son of Late Jagdish Sao, resident of Village Mor English, P.S.-
Mokama, District- Patna, Bihar, Pin Code- 803302.
5. Rekha Devi, Wife of Raj Kumar Sao and Daughter of Late Jagdish Sao,
resident of Village- Mor English, P.S.- Mokama, District- Patna, Bihar, Pin
Code- 803302.
6. Baban Sao, Son of Late Kameshwar Sao, resident of Village- Mor English,
P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
7. Sumitra Devi, wife of Late Bharat Sao @ Bullu Sao, resident of Village-
Mor English, P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
8. Shatruhan Kumar, Son of Late Kameshwar Sao, resident of Village- Mor
English, P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
9. Sone Lal Sao, Son of Late Munshi Sao, Resident of Village- Mor English,
P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
10. Sulochana Devi, Wife of Late Rajendra Sao, Resident of Village- Mor
English, P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
11. Manoj Sao, Son of Late Rajendra Sao, Resident of Village- Mor English,
P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
12. Shrawan Sao, Son of Sone Lal Sao, Resident of Village- Mor English, P.S.-
Mokama, District- Patna, Bihar, Pin Code- 803302.
13. Kishuni Devi, Wife of Late Nand Lal Sao, Resident of Village- Mor English,
P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
14. Gopal Sao, Son of Late Nand Lal Sao, Resident of Village- Mor English,
P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
15. Kameshwar Sao, Son of Late Munshi Sao, Resident of Village- Mor English,
Patna High Court C.Misc. No.755 of 2024 dt.18-02-2025
2/5
P.S.- Mokama, District- Patna, Bihar, Pin Code- 803302.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Nazir Alam, Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 18-02-2025
Record taken up on mentioning being made on behalf
of the petitioners and I intend to dispose of the petition at the
stage of admission itself.
2. Heard learned counsel for the petitioners.
3. The petitioners are aggrieved by the order dated
05.08.2023
passed by learned Sub Judge-I, Barh (Patna) in Title
Partition Suit No. 06 of 1999, whereby and whereunder the
learned trial court rejected the petition dated 28.05.2018 filed by
the petitioners under Order 1 Rule 10(2) read with Section 151
of the Code of Civil Procedure (in short 'the Code') for
impleading them as defendants in the said title partition suit.
4. Learned counsel for the petitioners submits that
admittedly the petitioners are the descendants of common
ancestor same as the plaintiffs and defendants of Title Partition
Suit No. 06 of 1999. There has been no evidence on record with
regard to earlier partition between different branches though
averment in this regard has been made in the pleading. Still, the
learned trial court did not take into consideration this fact and
Patna High Court C.Misc. No.755 of 2024 dt.18-02-2025
refused to implead the petitioners as defendants. Thus,
impugned order is bad and illegal. The petitioners are necessary
party in the suit as the petitioners are descendants of common
ancestor having their house, kitchen and garden on the suit
property appertaining to Plot Nos. 1119, 2065 and 2064. The
plaintiffs with fraudulent intent to deprive the petitioners, did
not implead them as parties in their title partition suit.
5. Perused the records.
6. From perusal of the record it transpires that the
petitioners claimed themselves to be common descendants along
with plaintiffs having a common ancestor. But perusal of
impugned order reflects that the plaintiffs filed their suit making
claim that earlier some partition had taken place between
different branches and now partition was sought only amongst
the plaintiffs and defendants who come fro one of the branches.
The defendants contested the suit and it further transpires that
the matter is travelled up to this Court in second appeal and
judgment and decree of the learned trial court and the first
appellate court, respectively were affirmed. Further, the title
partition suit was filed in the year 1999 and the orders in second
appeal was passed on 04.04.2016. The learned trial court in
impugned order has also mentioned that one of the issues before
Patna High Court C.Misc. No.755 of 2024 dt.18-02-2025
the trial court was about non-joinder of parties and the issue was
decided in favour of the plaintiffs.
7. Now, 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 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"
8. It is left to the wisdom of the court to see whether
a party should be impleaded in the proceeding at any stage if the
court find that the impleadment is necessary for effectually and
completely decide the matter between the parties, and it finds
so, such impleadment could be allowed. But in the present case
though the petitioners claim themselves to be co-sharers but did
Patna High Court C.Misc. No.755 of 2024 dt.18-02-2025
not take up the matter during all the time before any of the
courts. Now when the suit of the plaintiffs attained finality, the
petitioners sought impleadment at the stage of execution and the
same smacks of malafide. Moreover, it cannot be said that
presence of the petitioners is necessary for determinatin of
controversy between the parties. If the petitioners are having
their claim based on denial of claim of earlier partition between
different branches of the common ancestor, they can always
institute their own suit and chart their independent course of
action. But at this stage, the prayer for impleadment on part of
the petitioners does not appear to be bonafide. So the learned
trial court having considered the claim and necessity for
impleadment rightly rejected the petition of the petitioners.
9. In the light of above discussion, I do not find any
infirmity in the impugned order dated 05.08.2023 and hence, the
same is affirmed.
10. In the result, the present petition stands dismissed.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.02.2025
Transmission Date NA
