Patna High Court
Sri Prakash @ Shree Prakash vs Arun Kumar Ashana on 1 July, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1095 of 2024
======================================================
Sri Prakash @ Shree Prakash S/o Late Ramchandra Rai, Resident of
Sundarpur Kharauna, P.O. - Mahuasia, P.S.+ Anchal+Sub Division and
District- Sheohar.
... ... Petitioner/s
Versus
1. Arun Kumar Ashana S/o Late Nageshwar Prasad, Resident of village-
Sundarpur Kharauna, P.O.- Mahuasia, P.S., Anchal, Sub Division and
District- Sheohar.
2. Mukul Kumar, S/o Ajay Kumar, Resident of village- Sundarpur Kharauna,
P.O.- Mahuasia, P.S., Anchal, Sub Division and District- Sheohar.
3. Manoranjan Devi, D/o Late Ambika Prasad, W/o Krishnanand Prasad,
Resident of Village- Sonaul Subba, P.O. - Gharwara, P.S. - Anchal-
Majorganj, Sub Division - Sitamarhi Sadar, District - Sitamarhi.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Alok Kumar Jha, Advocate
For the Res Nos. 1 & 2 : Mr.Vivek Prasad, Advocate
Ms. Roona, Advocate
For the Res. No. 3 : Mr. Pratyush Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 01-07-2025
The petitioner has preferred the instant civil
miscellaneous petition being aggrieved by the order dated
28.08.2024
passed by learned District Judge, Sheohar in LA
Case No. 21 of 2004, whereby and whereunder the learned trial
court rejected the petition filed by the petitioner under Order 1
Rule 10(2) of the Code of Civil Procedure (in short 'the Code').
2. Shorn of unnecessary details, the facts of the case
are that the respondent nos. 1 and 2 filed one LA Case No. 21 of
2004 for granting Letters of Administration in their favour with
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
respect to land bearing S.P. No. 683 under Khata No. 71 area 72
decimals. The aforesaid LA case has been filed on the basis of
an unregistered Will dated 17.09.2000 executed by testator
Most. Lalit Kishori Devi. The testator was the wife of one
Krishna Prasad and her sisters-in-law are Manoranjan Devi and
Sarojan Devi and Manoranjan Devi is one of the objectors in the
LA case. The father of the petitioner purchased the aforesaid suit
land from Manoranjan Devi and got it mutated his name and
started paying rent to the Govt. of Bihar. The father of the
petitioner died in the year 2022 and thereafter the property was
partitioned amongst the brothers of the petitioner and the suit
property came into share of the petitioner. The petitioner, who is
a Central Government employee, filed an application under
Order 1 Rule 10(2) of the Code for being impleaded as a party
in the aforesaid LA case. The applicants/respondents nos. 1 and
2 filed their objection. The learned trial court, after hearing the
parties, dismissed the petition of the intervenor and the said
order is under challenge before this Court.
3. Learned counsel for the petitioner submitted that
respondent no. 3 Manoranjan Devi has filed objection in the LA
case and has been contesting the matter. But as she has been
getting old she was gained over by the applicants/respondents 1st
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
set. The petitioner being a Central Government employee has
been posted at different places and performing his duties. For
this reason he could not know about pendency of the LA case
and only after death of his father when the property came in his
share, the petitioner came to know about the litigation. As
Manoranjan Devi was neither contesting the LA case nor was
having any interest, the petitioner realized that he needs to
protect his interest being the purchaser of the land. Manoranjan
Devi did not even appear as witness in the case. Her grandson
appeared as OPW 5 and recorded his deposition contrary to the
objection filed by Manoranjan Devi and this witness rather
supported the case of the applicants/respondents. At the same
time, he also asserted that Manoranjan Devi would not come to
depose before the court. It goes on to show that Manoranjan
Devi was totally gained over. However, the learned trial court
did not consider this fact and rejected the application of the
intervenor-petitioner on erroneous grounds. The learned trial
court further failed to take into consideration this fact that the
intervenor-petitioner has a right to protect his interest as he has
now stepped into shoes of Manoranjan Devi and being a
purchaser prior to the filing of the LA case, the petitioner has
got every right to contest the case and challenge the genuineness
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
of the Will as the same stand was taken earlier by his vendor
Manoranjan Devi. Learned counsel further submitted that the
learned trial court committed an error of jurisdiction in passing
the impugned order as the intervention application of the
petitioner was rejected on the ground that it was filed at much
belated stage and the vendor is still contesting the case. Learned
counsel further submitted that another ground for rejection taken
by the learned trial court is that earlier the father of the
petitioner filed an application for impleadment which was
rejected and the petitioner is claiming his title through his father,
but the same is not a valid ground. The said order was not
challenged as Manoranjan Devi had been contesting the LA case
and interest of the father of the petitioner was being protected
but now the situation has changed and facts are sufficient to
show that Manoranjan Devi has not been contesting the suit
rather she is now favouring the applicants. Learned counsel
relied on a decision of learned Single Judge of this Court passed
in C.W.J.C. No. 10415 of 2011 dated 30.01.2013 wherein the
learned Single Judge upheld the order of the learned trial court
by which the learned trial court reviewed its own order in the
probate proceedings and added the intervenor as a party though
his petition for impleadment was earlier rejected. The
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
intervenor purchased the land from the objector before the
probate case was instituted and under such circumstances the
learned Single Judge has held that he has a right to protect his
interest. On the point of impleadment of a party, learned counsel
next referred to a decision of learned Single Judge of this Court
dated 05.09.2023 passed in Civil Miscellaneous Jurisdiction
No. 1303 of 2018 wherein it has been reiterated that with
respect to one subject matter the determination of interest of all
the parties shall be done in one suit and thus impleadment
petition of respondent no. 1 was allowed and learned Single
Jude upheld the order of learned trial court. Learned counsel
also referred to a decision of Hon'ble Supreme Court in the case
of Mumbai International Airport (P) Ltd. Vs. Regency
Convention Centre and Hotels (P) Ltd., reported in (2010) 7
SCC 417 about who are the necessary and proper parties.
Learned counsel also referred to a decision of Hon'ble Supreme
Court in the case of Ramesh Hirachand Kundanmal Vs.
Municipal Corporation of Greater Bombay and Others,
reported in (1992) 2 SCC 524 wherein the Hon'ble Supreme
Court has held that the court has judicial discretion which it has
to exercise having regard to facts and circumstances of the case
and in exercise of this discretion court can direct a plaintiff,
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
though dominus litis, to implead a person as a necessary party
defendant. Learned counsel lastly referred to a decision of this
Court in Ekta Sahkari Grih Nirman Samiti Ltd. Patna Vs. The
Estate of Late Ram Pancham Singh & Ors., C.W.J.C. No.
16881 of 2011 dated 08.12.2011 submitting that in the similar
circumstance, learned Single Judge of this Court held that the
petitioner stepped into the shoes of the vendor and he has got
interest in the said property and was required to be heard in
support of the objection filed by the petitioner predecessor.
Thus, learned Single Judge held that the petitioner is a proper
party in the proceeding and he should be impleaded as a party
by the learned trial court. Thus, learned counsel submitted that
the learned trial court did not consider the facts in proper
perspective and did not consider the proposition of law
propounded by the superior courts and passed an erroneous
order which could not be sustained.
4. Learned counsel appearing on behalf of respondents
contended that there is no infirmity in the impugned order and
the same is proper and valid. Learned counsel at the outset
submitted that the petition filed earlier by the father of the
petitioner seeking impleadment has been rejected by the learned
trial court and the said order has attained finality since it has not
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
been challenged. Since the petitioner has stepped into the shoes
of his father and has been claiming through him, the decision
would act as res judicata. Learned counsel further submitted
that since the issue already stands settled, the petitioner cannot
re-agitate the same issue again and again. Learned counsel
further submitted that in the present case only the validity of the
Will is to be tested to see whether the Will has been executed or
not and the scope of the same cannot be enlarged to decide title
over the subject matter of the lis. The petitioner has been
claiming the right and title through a bogus document as
Manoranjan Devi had no authority to execute any sale deed with
respect to the land for the testator had executed the Will. The
petitioner is a complete stranger to the LA case and cannot be
made party in a probate proceeding. Learned counsel further
submitted that the sale deed was brought into existence during
the pendency of the probate proceeding and is hit by provisions
of lis pendense. Considering this aspect of the matter, the
intervention application filed by the father of the present
petitioner was rightly rejected by the learned trial court vide
order dated 26.09.2016 and the same has attained finality
inasmuch as it has not been disturbed by any superior court. As
this issue has already been settled by the competent court, the
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
present petitioner cannot be allowed to reopen this issue.
Learned counsel further submitted that, moreover, it is a
proceeding for grant of Letters of Administration and it is not a
title suit. For this reason, the remedy of the petitioner to get his
claim decided in a proper title suit. Learned counsel further
submitted that the learned trial court has discussed the entire
matter at length and finding no substance in the petition of the
intervenor/petitioner, it has rightly rejected the said petition of
the intervenor. The impugned order is a well discussed, reasoned
and speaking order and needs no interference by this Court
under the supervising jurisdiction of this Court under Article
227 of the Constitution. Learned counsel next referred to the
case of Bikrama Prasad Vs. Bharat Prasad & Anr., reported in
2002(1) PLJR 176 and relied on paragraphs 7, 8 and 9 of the
said decision which read as under:-
"7. So far as the legal position is
concerned, it is well settled that in case of
threat of dispossession of any person not
bound by the judgment and decree, if an
objection is filed under Order XXI Rule 97 of
the Code, then that has to be considered and
disposed of under the relevant provision and
remedy of appeal or revision is provided
under the said Order. Suit is not remedy in
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
such matter and the same is barred. But the
question in this case is as to whether the
objector/opposite party no. 2 is bound by the
decree or not?
8. Admitted fact is that the suit was
filed by the petitioner/plaintiffs against the
father of the objector. It was contested by
the father of the Opp. party No. 2 who lost
up to the High Court. The objection petition
filed by Opposite Party N. 2 in substance
amounts to challenging the validity of the
decree on the ground that his father was
gained over by the plaintiff/decree holder, on
that account, thus his claim is independent
of the claim of his father. In my view, for
such relief the remedy is elsewhere and not
an application under Order XXI Rule 97 of
the Code. The objector is bound by the
decree unless it is set aside on the ground
taken by him. His case is not covered by
Order XXI Rule 97 of the Code. This apart,
the Court has to consider that the
proceeding of the Court is not abused by a
party by taking recourse to the pure
technical view of the matter. The eviction
suit was lost by the father of Objector. The
Objector does not have any independent title
over the suit land and as such entertainment
of his objection is an abuse of the process of
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
the Court.
9. In this civil revision application,
it has been specifically stated that even the
sale deed which has been produced by the
Khesra No. 449 area one Katha five dhurs,
whereas the decree was with regard to lands
of plot bearing Khata no. 359 Khesra No.
446 area 9 dhurs. No rejoinder has been
filed to the aforesaid statement made in the
civil revision. Thus, on that ground also it
can be safely said that the Court below
could not have entertained the objection and
stayed the execution case."
Learned counsel also referred to another decision of
a learned Single Judge of this Court in the case of Lalit Prasad
Sah and Ors. vs. Mahendra Sah and Ors., reported in 2007(4)
PLJR 427 wherein the learned Single Judge held that when the
petitioner's father was held to be a person set up then it will be
travesty of justice, if the decree-holder, now at the instance of
his sons, are deprived of the fruits of the decrees only on the
gorund that petitioners have chosen to file application under
Order 21 Rule 97 of the Code. Learned counsel thus submitted
that the petitioner has been trying to put up a claim for which
there is no basis and he can seek his remedy with regard to title
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
and possession before a court of competent jurisdiction and
petitioner is not remedyless.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
Admittedly, the father of the petitioner tried to intervene in the
matter and failed. The learned trial court while rejecting the
application of the father of the petitioner vide order dated
26.09.2016 observed that it is not a title suit and question was
whether Will was executed by the testator in favour of the
applicants or not and it has been held by learned trial court that
intervenor/objector was not a necessary party and intervention
petition has no legal weight. This order has not been challenged
and as the petitioner claims through his father, the finality
attained by the order should also act against the interest of the
petitioner.
6. Though it has been held time and again that a
person having semblance of interest could be allowed to
intervene in the matter and the courts allow such application,
but power under provision of Order 1 Rule 10(2) of the Code is
a discretionary power and the discretion is to be exercised
judicially and completely and effectively to adjudicate the
dispute between the parties. On this proposition, the petitioner
Patna High Court C.Misc. No.1095 of 2024 dt.01-07-2025
might have a good case considering the fact that the vendor of
the father of the petitioner has become indisposed and is not in a
position to depose before the learned trial court but considering
the legal position that the present petition is hit by principles of
res judicata, I am not inclined to entertain the challenge to the
impugned order. Moreover, the impugned order has been passed
after due consideration of all the facts and it is a speaking order
and while exercising jurisdiction under Article 227 of the
Constitution, this Court could not lightly interfere with such
orders.
7. Hence, in the light of discussion made hereinbefore,
I do not find any infirmity in the impugned order dated
28.08.2024 and the same is affirmed. Accordingly, the present
petition stands dismissed.
8. However, the petitioner is liberty to have recourse
of law in appropriate proceeding before a court of competent
jurisdiction to establish his rights, if so advised.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR NAFR
CAV DATE 13.05.2025
Uploading Date 01.07.2025
Transmission Date NA
