Anil Kumar Pathak And Ors vs Umesh Bhagat And Ors
2025 Latest Caselaw 2037 Patna

Patna High Court

Anil Kumar Pathak And Ors vs Umesh Bhagat And Ors on 28 February, 2025

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

          IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.1126 of 2017
     ======================================================
1.    Anil Kumar Pathak Son of Late Jai Ram Pathak.
2.   Ankit Kumar Pathak, Son of Anil Kumar Pathak.
3.   Sushant Kumar Pathak, Son of Late Abhay Kumar Pathak. All are resident
     of Mauza- Kalyanpur, P.O. P.S. District- Jamui.

                                                                   ... ... Petitioner/s

                                         Versus


1.   Umesh Bhagat Son of Late Kamleshwary Bhagat, resident of Mouza-
     Kalyanpur, P.S. District- Jamui.
2.   Geeta Devi, Wife of Late Ramjee Prasad Bhagat, Daughter of Late Kapildeo
     Bhagat, resident of Mouza- Kalyanpur, Tola- Shivandih, P.O. P.S.- Jamui.
3.   Satyanaryan Bhagat, Son of Late Shiv Prasad Bhagat.
4.   Dharmendra Kumar.
5.   Ajay Kumar, Both are sons of Satynarayan Bhagat. All are resident of
     Mouza- Kalyanpur, Tola- Mahrajganj, P.O. P.S.- Jamui, District- Jamui.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s    :      Mr. Ganpati Trivedi, Sr. Advocate
                                    Mr.Sanjay Kumar Mishra, Advocate
                                    Mr. Ashok Kumar, Advocate
     For Respondent Nos. 1 & 2:     Mr. Prabhat Ranjan Singh, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
     CAV JUDGMENT

      Date : 28-02-2025

                        The present petition has been filed for setting aside

      the order dated 28.04.2017 passed by learned Munsif, Jamui in

      Title Suit No. 95 of 2016, whereby and whereunder the petition

      filed under Order 1 Rule 10(2) of the Code of Civil Procedure
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         (in short 'the Code') by the intervenors has been allowed.

                       2. Briefly stated, the facts leading to the institution of

         the present civil miscellaneous petition are that the petitioners

         are plaintiffs in Title Suit No. 95 of 2016. The plaintiffs claimed

         Khesra Nos. 219 and 220 of Khata No. 36 are the land of the

         plaintiffs. 2 decimal of land of Khesra No. 220 came in

         possession of the predecessor of the plaintiffs through sale

         certificate issued in auction proceeding in Execution Case No.

         35 of 1939 in the name of Rameshwar Pathak, who was

         grandfather of plaintiff/petitioner no. 1 and great grandfather of

         plaintiffs/petitioner nos. 2 and 3. After the death of Rameshwar

         Pathak, property belonging to him was partitioned between his

         two sons, namely Jairam Pathak and Bishunath Pathak, in

         Partition Suit No. 37 of 1979 and accordingly, Khesra No. 220

         (entire) along with other khesras came in possession of Jairam

         Pathak, the father of petitioner no. 1 and grandfather of

         petitioner nos. 2 and 3, respectively. The father of petitioner no.

         1 in his life time merged the land of Khesra Nos. 219 and 220

         and constructed house/shops over the aforesaid land. Four shops

         were constructed upon Khesra No. 220 and their direction was

         from East to West and have been let out on rent to different

         tenants. There is a boundary wall of length 38 feet and height 15
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                                            3/20




         feet and from north side of Khesra No. 220 which acts a

         boundary mark between Khesra Nos. 220 and 221. The

         defendant no. 1/respondent no. 3 is in possession of Khesra No.

         221. The defendant no. 1/respondent no. 3 with an intention to

         grab the land of the petitioners, constructed a concrete pillar by

         cutting the wall of the petitioners situated on Khesra No. 220.

         Coming to know about the act of respondent no. 3, the

         petitioners moved before learned Sub-divisional Magistrate,

         Jamui for initiation of a proceeding under Section 144 of the

         Code of Criminal Procedure (in short 'Cr.P.C.) but the same was

         dropped vide order dated 14.06.2016 passed in Case No. 1035M

         of 2016 with observation that nature of dispute is about the

         demarcation of the land and as such it could be decided only by

         the competent court. The defendant no. 1/respondent no. 3 again

         tried to disturb the possession of the petitioners by constructing

         the house by merging part of the land of the petitioners and the

         petitioners again took shelter of law by filing a petition under

         Section 144 Cr.P.C. During the proceeding under Section 144

         Cr.P.C., a petition was filed by intervenor Umesh Bhagat,

         respondent no. 1 of the present case, who prayed to make him a

         party in the proceeding in Case No. 1975M of 2016 which has

         been disposed of vide order dated 09.11.2016, whereby the
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         learned Executive Magistrate rejected the intervenor petition of

         respondent Umesh Bhagat and the matter was dropped

         observing that the dispute between the parties is for demarcation

         of the land and the same could be decided by a competent court.

         Thereafter, the petitioners filed Title Suit No. 95 of 2016 making

         defendant nos. 1, 2 and 3 who are respondent nos. 3, 4 & 5 in

         the present petition as party since dispute was between the

         petitioners and respondent 2nd set. During pendency of the suit

         and after appearance of all the 3 defendants, respondent nos. 1

         and 2 filed a petition under Order 1 Rule 10(2) of the Code for

         impleading them as intervenors/defendants on the ground that

         the land is of their ancestor by way of a Hukumnama dated

         26.07.1941

issued in the name of one Aganu Bhagat. The

plaintiffs/petitioners filed their objection against the intervenor

petition and filed a rejoinder on 20.12.2016. The learned trial

court, after hearing the parties allowed the petition filed by the

intervenors. The said order is under challenge before this Court.

3. Learned senior counsel Mr. Ganpati Trivedi,

appearing on behalf of the petitioners, submitted that the learned

trial court has wrongly allowed the petition of the intervenors by

ignoring the law. The learned trial court has not considered that

according to law no person could be added against the wishes of Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

the plaintiffs and the plaintiffs are masters of their own suit and

no person can be allowed to intervene against the wish of the

plaintiffs. The learned trial court has not considered that how the

intervenors could be permitted to participate in the dispute

between the others which is confined only to erection of a wall.

The intervenors/respondent nos. 1 and 2 are neither necessary

party in dispute between the plaintiffs and the original

defendants nor proper party. Learned senior counsel further

submitted that the whole claim of the intervenors is based on a

Hukumnama dated 26.07.1941 issued by the then landlord Babu

Keshav Prasad Goyanka in favour of one Aganu Bhagat but

prior to that the ancestor of the petitioners purchased the suit

land in auction in Execution Case No. 35 of 1939 in which

Aganu Bhagat, the ancestor of the intervenors was a party.

Learned senior counsel further submitted that the learned trial

court has recorded a completely erroneous finding that the

intervenors filed Register-II in support of their claim. It is an

error of record and no Register-II has been file before the

learned trial court. Learned senior counsel further submitted that

since respondent nos. 1 and 2 are having no concern with the

land in question and they are in collusion with other defendants,

their impleadment in the suit is unwarranted, illegal and against Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

the law. Learned senior counsel referred to a decision of

Hon'ble Supreme Court in the case Vidur Impex and Traders

Private Limited and others Vs. Tosh Apartments Private

Limited and others with Bhagwati Developers Private Limited

Vs. Tosh Apartments Private Limited and others, reported in

(2012) 8 SCC 384 to stress the point that the intervenors are

neither necessary nor proper parties and their conduct and

collusion with other defendants make them unfit for

impleadment.

4. However, the learned counsel appearing on behalf

of respondent nos. 1 and 2 submitted that there is no infirmity in

the impugned order and the same needs to be affirmed. Learned

counsel for the respondents submitted that the answering

respondents have based their claim on a valid document, i.e.,

copy of return (Register-I) submitted by Ex-landlord/Khaira

Estate. In this return, the name of ancestor of the answering

respondents namely, Aganu Bhagat has been clearly mentioned

as the Ex-landlord submitted return in the name of ancestor of

respondent nos. 1 and 2, which proves that ancestor of

respondent nos. 1 and 2 was owner of the suit land at the time of

vesting of Zamindari. For this reason under no circumstance the

suit land was the subject matter of any auction sale. Learned Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

counsel further submitted that the sale certificate is a fraudulent

document produced by the petitioners. It is a forged and

fabricated document. From the sale certificate it appears that the

land of village Mauza Maharajganj @ Shivganj, Pargana

Gidhaur, P.S. & P.S. - Jamui has been referred but the suit land

falls under Mauza Kalyanpur, adjacent Mauza of Maharajganj.

The alias name of Shivganj is completely false. Mauza

Maharajganj has no alias name like Shivganj. Even the thana

number mentioned in the sale certificate is wrong. The thana

number of Mauza Kalyanpur is 40 whereas sale certificate has

been mentioned as Thana No. 39. Moreover, the sale certificate

refers to 5 decimal of land whereas in the plaint and also in the

present writ petition, the plaintiffs/petitioners are claiming that

they have purchased 2 decimal land. It shows the petitioners are

not sure as to which land they have been claiming through the

sale certificate. Moreover, there is no record of Execution Case

No. 35 of 1939. Further, the story of auction sale in Execution

Case No. 35 of 1939 is totally false and concocted. There is no

such record available in the Civil Court. Learned counsel

stressed the fact that Copying Department of Civil Court, Jamui

had clearly reported that there is no record of Execution Case

No. 35 of 1939. If there was no execution proceeding then how Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

the auction sale could have taken place. Learned counsel further

submitted that the petitioners have been trying to set up their

claim over the suit land with the help of defendants and no

creation of jamabandi for a long time could not be used to deny

the title of a land owner. The ancestor of respondent nos. 1 and 2

did not record their name in the register of the State though the

return of Ex-landlord was in favour of the ancestor of

respondent nos. 1 and 2. Merely on the ground that jamabandi

was not created in the name of the respondents 1 and 2, the

petitioners cannot take advantage of this fact and on that basis

cannot deny the title of the respondent nos. 1 and 2. Learned

counsel further submitted that the petitioners claimed that the

sale certificate was issued by the Civil Court but it has been

issued by the office of Sub-Registrar, that too on 16.12.2016 and

there is no explanation from the petitioners as to how Civil

Court did not provide them the copy of sale certificate. Learned

counsel further submitted that the sale certificate on which the

petitioners have placed their reliance refers to 5 decimal of land

where in the entire pleading, petitioners have pleaded that they

have purchased only 2 decimal in auction sale. If pleading of

petitioners is correct, there is no occasion for them to rely on

sale certificate of 5 decimal land. Learned counsel reiterated that Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

the Ex-landlord submitted return of the said land appertaining to

Khesra No. 220, Mauza Kalyanpur, area 2 decimal in the name

of their ancestor and as such there would have been no occasion

of auction sale of the same land and as such the claim of the

petitioners is totally false and concocted and have no legal force

and therefore, they are not entitled to any relief.

5. Learned senior counsel for the petitioners in reply

submitted that perusal of sale certificate would make it clear that

Rameshwar Pathak had purchased Plot No. 220 under Khata

No. 36, area 5 decimal along with house in execution of

mortgage decree in Suit No. 05 of 1935 on 31.07.1939 for

consideration of Rs.1923 and 14 Aana which was being

executed against Shivdeni Bhagat, Son of Ganga Bishun Bhagat

and Beni Bhagat, Son of Agnu Bhagat and Janhavi Bhagat and

Dudhwa Bhagat minor son of Beni Bhagat, resident of

Maharajganj alias Shivganj, Pargana Gidhour, P.O. and P.S. -

Jamui, District - Munger. Learned senior counsel further

submitted that the sale certificate was issued in favour of

Rameshwar Pathak under Order 21 Rule 94 of the Code. After

confirmation of sale, copy thereof was forwarded to Sub-

Registrar, Jamui for being filed in Book-I as required under

Section 61 of Registration Act, 1908 for being copied into the Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

margin of register book because registration of such documents

become complete thereafter. From perusal of certified copy of

the sale certificate it appears that the said sale certificate was

copied in Book-I at page no. 227-228 in the year 1940 and

therefore, the question of challenging the genuineness of the

certified copy of sale certificate does not arise. Learned senior

counsel further submitted that there is presumption of

correctness attached to registered document and the same can be

challenged before the competent Civil Court in separate

proceeding. Learned senior counsel further submitted that there

is no confusion over the alias name of Maharajganj because

Shivganj is alias name of Maharajganj as in a copy of sale deed

executed in the year 1970 by one Bishwanath Prasad Bhagat,

Son of Ramdahin Bhagat, address has been mentioned as

resident of Mauza - Shivganj alias Maharajganj. Learned senior

counsel next submitted that even if any old order or documents

are not available or not provided by the learned Civil Court, the

same is not surprising since as per rule after a certain period

there is provision for destroying the documents/record, which is

apparent from the certified copy of application/chirkut filed to

obtain the certified copy of order dated 24.11.1939 passed in

Execution Case No. 35 of 1939. The same has been rejected Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

with report that the case record has been destroyed in

accordance with law. That means case was in existence but

record of the same has been destroyed. Learned senior counsel

further submitted that respondent nos. 1 and 2 have produced a

copy of return but the same is completely forged and fabricated

document. Learned senior counsel further submitted that the

claim of respondents 1st set is completely false that Agnu

Bhagat had taken the suit land on settlement through

Hukumnama from Keshav Prasad Goyanka. Moreover, Agnu

Bhagat had already lost his right, title and interest in the land in

question. Therefore, respondent nos. 1 and 2 would not have any

locus to get impleaded in the suit, more so when no relief has

been sought against them.

6. I have given my thoughtful consideration to the

submission of the parties and have perused the record.

7. 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 Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

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. 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 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:

"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 Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

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 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 Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

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 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 Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

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 in dispute".

9. Further, the Hon'ble Supreme Court in the case

of Kasturi v. Iyyamperumal, reported in (2005) 6 SCC 733, Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

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.

10. 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. Here a number of persons

had purchased the property and it was an admitted fact.

11. Therefore, at any stage, if the court is of the

view that a person is necessary or proper party, it could order for

his impleadment if it is found that presence of such person is

necessary to effectually and completely decide the matter. Now

the petitioners have brought their suit claiming title and

possession on the basis of sale certificate of Execution Case No.

35 of 1939 against the defendants as the petitioners claim that

the defendants have been making encroachment upon their land Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

and the suit has been filed for declaration of their right,

confirmation of possession and also for recovery of possession

if they are dispossessed during the pendency of the suit. It is

also evident that the petitioners have not sought any relief

against the intervenors/respondents 1 and 2. Whatever might be

the claim of the intervenors over the suit property, the same has

not been touched by the plaintiffs/petitioners. The plaintiffs

have set up their claim based on a certificate of sale whereas the

intervenors want to get impleaded in the matter on the basis of

some Hukumnama. It is also apparent that the petitioners have

not been in possession of the suit land. In the light of these facts,

the intervenors might have their independent claim over the suit

property and can agitate the same in an independent proceeding

and not in a proceeding instituted by the plaintiffs/petitioners.

Being masters of their lis, the petitioners cannot be made to

contest or fight against an opponent who, in the eyes of

plaintiffs, has no concern with the suit land and has not been

causing any disturbance to the plaintiffs/petitioners. So far as

the challenge to the genuineness of the documents of the

plaintiffs by the respondents 1 and 2 is concerned, the same is

quite surprising as intervenors could not seek impleadment

claiming it to be a forged document as it is for the plaintiffs to Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

prove the authenticity of the sale certificate before the learned

trial court and the intervenors cannot challenge the right of

plaintiffs to bring the suit on the basis of such document at this

stage. At the same time, the claim of the intervenors for their

impleadment is allowed, there would be no stopping for any

person to seek impleadment in the suits of other because no

relief has been sought against the intervenors and an effective

decree can be passed even in absence of the intervenors.

Similarly it does not appear that the presence of the intervenors

is required to enable the court to completely, effectively and

properly adjudicate upon all matters and issues before it.

Reference could be made to Para 41 of the Vidur Impex and

Traders Private Limited & Ors. (supra) which reads as under:-

"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:

41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2. A necessary party is the person who ought to Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.

41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment".

12. Further, in Mumbai International Airport (P)

Ltd. (supra), the Hon'ble Supreme Court held that under Order

1 Rule 10(2) the court has the discretion either to allow or reject Patna High Court C.Misc. No.1126 of 2017 dt.28-02-2025

the application of person claiming to be a necessary party or

proper party. It is the judicial discretion of the court to strike out

and add party at any stage of the proceeding. If a person seeking

impleadment is not necessary or proper party, the court cannot

direct for impleadment of such party. Moreover, as already

discussed, the intervenors have set up their independent claim

over the suit property and cannot be allowed to intervene in the

matter on the basis of such claim. However, it is open for the

intervenors to chart independent course and institute their own

suit for asserting their rights.

13. In the light of discussion made hereinbefore, I

am of the considered opinion that the intervenors cannot be

allowed to get impleaded in Title Suit No. 95 of 2016 and the

impugned order has been passed by the learned trial court

exceeding its jurisdiction. Hence, the impugned order dated

28.04.2017 is set aside and accordingly, the present petition

stands allowed.

(Arun Kumar Jha, J)

DKS/-

AFR/NAFR                NAFR
CAV DATE                21.01.2025
Uploading Date          28.02.2025
Transmission Date       NA