Patna High Court
Meena Devi vs Kailash Devi on 6 May, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.185 of 2023
======================================================
Meena Devi, Wife of Late Kapildeo Singh, Resident of Village- Nuruddinpur,
P.S.- Khushrupur, District- Patna, Presently residing at Chak Chanda, P.S.-
Khushrupur, District- Patna.
... ... Petitioner/s
Versus
1. Kailash Devi Wife of Late Bhagwat Prasad, Resident of Khushrupur, P.O.
and P.S.- Khushrupur, District- Patna.
2. Gauri Shankar Prasad Son of Late Bhagwat Prasad, Resident of Khushrupur,
P.O. and P.S.- Khushrupur, District- Patna.
3. Smt. Geeta Devi Wife of Rajeshwar Prasad Daughter of Late Bhagwat
Prasad, Resident of Murcha Road, Begampur P.S.- Begampur, Patna City,
District- Patna.
4. Smt Reeta Devi Daughter of Late Bhagwat Prasad, Resident of Saidpur,
P.S.- Kadamkuan, and District- Patna.
5. Smt. Sunita Devi @ Munni Wife of Sri Sharan Sah, Daughter of Late
Bhagwat Prasad, Resident of Jamui Bazaar, P.S.- Jamui, District- Jamui.
6. Smt. Ranjana Devi Wife of Late Vijay Shankar, Resident of Chak Husain,
P.S.- Khushrupur, District- Patna.
7. Vishal Kumar Son of Late Vijay Shankar, Resident of Chak Husain, P.S.-
Khushrupur, District- Patna.
8. Vishwash Kumar Son of Late Vijay Shankar, Resident of Chak Husain, P.S.-
Khushrupur, District- Patna.
9. Vivek Kumar Son of Late Vijay Shankar, Resident of Chak Husain, P.S.-
Khushrupur, District- Patna.
10. Indu Devi Wife of Late Mulshankar Prasad, Resident of Chak Husain, P.S.-
Khushrupur, District- Patna.
11. Manish Kumar Son of Late Mulshankar Prasad, Resident of Chak Husain,
P.S.- Khushrupur, District- Patna.
12. Nisha Kumari Wife of Sri Ashish Kumar, Daughter of Late Mulshankar
Prasad, Resident of Chak Husain, P.S.- Khushrupur, District- Patna.
13. Ranu Kumari Wife of Ravi Shankar Gupta, Daughter of Late Mulshankar
Prasad, Resident of Chak Husain, P.S.- Khushrupur, District- Patna.
14. Rani Kumari Daughter of Mulshankar, Resident of Chak Husain, P.S.-
Khushrupur, District- Patna.
15. Sri Thakur Satyadeo Swami Ji Thakurwari, Village- Chakchanda, Baikatpur,
P.S.- Khushrupur, District- Patna,
16. Lakshmi Devi Wife of Krishna Dutta, Resident of Chak Husain, P.S.-
Khushrupur, District- Patna.
17. Sunil Kumar @ Papu Son of Sofa Late Krishna Dutta, Resident of Chak
Husain, P.S.- Khushrupur, District- Patna.
18. Sudhir Kumar @ Munna Son of Sofa Late Krishna Dutta, Resident of Chak
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
2/27
Husain, P.S.- Khushrupur, District- Patna.
19. Vinod Kumar Son of Sofa Late Krishna Dutta, Resident of Chak Husain,
P.S.- Khushrupur, District- Patna.
20. Punam Devi Wife of Late Sharwan Kumar, Daughter of Late Krishna Dutta,
Resident of Chak Husain, P.S.- Khushrupur, District- Patna.
21. Vivek Kumar Son of Late Sharwan Kumar Grand Son of (Nati) of Late
Krishna Dutta, Resident of Chak Husain, P.S.- Khushrupur, District- Patna.
22. Nikhil Kumar Son of Late Sharwan Kumar Grand Son of (Nati) Late
Krishna Dutta Resident of Chak Husain, P.S.- Khushrupur, District- Patna.
23. Barsha Kumari @ Babli Daughter of Late Sharwan Kumar Grand Daughter
of (Natni) of late Krishna Dutta, Resident of Chak Husain, P.S.- Khushrupur,
District- Patna.
24. Smt. Manju Devi Wife of Amarnath Sah Daughter of Late Krishna Dutta,
Resident of Mohall- Dalu Chalk, P.S. Khagoal, District- Patna.
25. Munni Kumari Wife of Sunil Kumar Daughter of Late Krishna Dutta,
Resident of Chailly Tal Maharajganj P.S.- Alamganj, District- Patna.
26. Guriya Kumari Wife of Ajay Kumar Sah Daughter of Late Krishna Dutta,
Resident of Chaily Tal Mahrajganj, P.S.- Alamganj, District- Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jitendra Kishore Verma, Advocate
Ms. Pratibha Gupta, Advocate
For the Respondent 2 : Mr. Anupam Prabhat Shrivastava, Advocate
For the Respondents 1,5 to 10, 13 & 14 : Mr.Ram Anuj Prasad Singh, Advocate
Mr. Ashok Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 06-05-2025
The present petition has been filed under Article 227
of the Constitution of India challenging the order dated
12.12.2022
passed in Misc. Case No. 227/1996 by learned
Additional District Judge-XIV, Patna whereby and whereunder
the petition of the intervener/petitioner dated 30.07.2010 filed
under Order 1 Rule 10 (2) read with Section 151 of the Code of
Civil Procedure (hereinafter referred to as 'the Code') has been
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
rejected along with another petition filed by some other persons
under Section 151 of the Code.
2. Shorn of unnecessary details, the case of the
petitioner is that she had purchased the land bearing Khata No.
145, Khesra No. 3205 area 4275 sq.ft. (3 decimals), Khata No.
763, Khesra No. 3206 area 5 decimals and Khata No. 145,
Khesra No. 3207 area 6 decimals on 16.10.2008 from one
Krishna Dutta, son of Late Shiv Lal Sao vide a registered sale
deed. The petitioner came to know about Misc. Case No.
227/1996 between Bhagwat Prasad and Krishna Dutta, which
has been going on with regard to partition of joint family
property in the light of judgment/order dated 10.10.1996 passed
in Civil Appeal No. 7475/1994 by the Hon'ble Supreme Court
wherein the Hon'ble Supreme Court modified the decree passed
by the High Court with certain directions. The land in question
purchased by the petitioner fell in share of Krishna Dutta being
part of Schedule II property of Partition Award and the nature of
land is 'ditch'. The petitioner claims as per schedule of Partition
Award and direction of the Hon'ble Supreme Court, the land
came in possession and ownership of Krishna Dutta and the
petitioner purchased the same after payment of consideration
amount and came into possession of said land. After coming to
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
know about the pendency of Misc. Case No. 227/1996, the
petitioner filed a petition under Order 1 Rule 10 (2) of the Code
for adding her as party in Misc. Case No. 227/1996. A rejoinder
to the petition was filed on behalf of the respondents opposing
the prayer of the petitioner. The learned Additional District
Judge after hearing the parties dismissed the petition dated
30.07.2010 finding no merit in it vide order dated 12.12.2022.
The said order is under challenge before this Court.
3. Prior to entering into the submission of the parties,
it would be beneficial to take stock of chronology of the events
leading to institution of Misc. Case No. 227/1996.
4. It appears from the records that there was dispute
over partition of joint family property amongs the sons of Late
Benga Sao, namely Bhagwat Prasad and Krishna Dutta. With
the intervention of well wishers of the family, the matter was
referred to arbitration and, accordingly, the arbitrators (Panchas)
delivered the award on 26.06.1970 and the same was registered
on 04.08.1970. Thereafter, Bhagwat Prasad and Sri Thakur
Satyadeo Swami Jee Maharaj under the Sewait Bhagwat Prasad
filed Title Suit No. 54 of 1977/58 of 1978 in the court of learned
Sub Judge-2nd, Patna to make the registered award rule of the
court and Bhagwat Prasad got ex-parte decree dated 25.07.1978.
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
Krishna Dutta filed Misc. Case No. 71/1979 for setting aside the
ex-parte decree dated 25.07.1978, which was subsequently set
aside vide order dated 13.12.1980 and Title Suit No. 54 of
1977/58 of 1978 was restored. Thereafter, vendor of the
petitioner, namely Krishna Dutta filed Misc. Case No. 383 of
1986 in the High Court against the judgment of learned trial
court making award as part of decree, but the same was
dismissed by the High Court vide judgment and decree dated
28.04.1994. Then Krishan Dutta filed Civil Appeal No.
7475/1994 before the Hon'ble Supreme Court against the order
of the High Court.
5. It further appears a compromise petition was filed
before the Hon'ble Supreme Court and the terms of compromise
were accepted and the Hon'ble Supreme Court passed the order
dated 10.10.1996 with following stipulations :
"The parties have agreed that the award or
the decree in terms of award should be
modified, in that (i) all the house/building
under the award of February, 1970 shall be
divided equally i.e., 50:50 between the two
brothers (ii). all lands which are the subject
matter of the award will remain divided as
per the schedules in the award, meaning
thereby the award in that behalf will be
implemented fully, (iii) the right of
Shebaitship conferred under the award in
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
favour of one party will be altered and will
now be divided half and half, i.e., one party
will have six months in a year and another
party will have the remaining six months in a
year subject to hereditary rights in relation to
schedule (III) of the award. This is the extent
to which the decree under award will stand
modified. Since the parties have agreed that
all houses /buildings under the award shall
be divided half and half between the two
brothers, the division by metes and bounds
will have to be effected through a person who
may be nominated by District judge, Patna.
We, therefore, direct the District Judge, Patna
to nominate a person whom be considers
proper to give effect to the decree in regard to
the division of houses /buildings. Insofar as
lands are concerned, we are told some of the
lands have been sold by one party or the
other and some remain which are subject
matters of the award. As far as those lands
are concerned, the person to be nominated by
District Judge will also ensure that
possession of those lands is transferred to the
respective parties as per the stipulation in the
decree made pursuant to the award. This is
the modified decree which will have to be
implemented and settles the rights of the two
brothers. The partition should be effected as
soon as possible and at the latest within a
period of three months. Both parties will
deposit the cost of effecting and implementing
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
the partition under the modified decree on
50:50 basis as may be directed by the District
Judge Patna.
The parties have signed the terms of the
modified decree. On behalf of the appellant,
his son, who has authority, has signed the
terms. His counsel also states that the terms
were explained to him and he has agreed to
the same. He is present in person and so is
the respondent, Bhagwat Prasad. Their
counsel have also signed the terms. In regard
to third party rights, if any, if parties desire to
take any legal action against the third parties,
they would be free to do so, if so advised."
6. The Misc. Case No. 227/1996 has been instituted
before the learned District Judge, Patna in compliance of the
directions of the Hon'ble Supreme Court contained in the order
dated 10.10.1996 passed in Civil Appeal No. 7475/1994.
7. It further transpires that both Krishna Dutta and
Bhagwat Prasad died and the litigation is being carried forward
by heirs/legal representatives of the above-named two brothers.
8. The learned counsel for the petitioner submitted
that the award delivered by the panchas/arbitrators on
26.06.1970 put the properties in two schedules. The immovable
property described in Schedule I was allotted to Bhagwat Prasad
and immovable property described in Schedule II was allotted to
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
Krishan Dutta. The land in question which has been purchased
by the intervener/petitioner fell in Schedule II property of the
award and as per direction/modified decree of the Hon'ble
Supreme Court, the Schedule-II land was in possession and
ownership/share of Krishna Dutta who partitioned it by metes
and bounds with his sons and daughters and the land in question
came in exclusive possession of Krishna Dutta. The
intervener/petitioner is bonafide purchaser of the land in
question and after her purchase, she is coming into its
possession.
9. The learned counsel for the petitioner further
submitted that the petitioner came to know that the Pleader
Commissioner, who was earlier appointed in Misc. Case No.
227/1996, submitted a report in terms of directions of the
Hon'ble Supreme Court and the land in question was shown in
the share of Krishna Dutta but the said Pleader Commissioner
left the job without completing the commission. Thereafter,
another Pleader Commissioner was appointed. Even this Pleader
Commissioner filed an incomplete report with objectionable
material and this incomplete report was objected by Krishna
Dutta. Before the report could be accepted, the Pleader
Commissioner died. Krishna Dutta also died during the
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
pendency of Misc. Case No. 227/1996 and as he has already
partitioned by metes and bounds with his children during his life
time and he has already sold his share to the petitioner, no one
was willing to take interest in prosecuting Misc. Case No.
227/1996 and no one was ready to protect the interest of the
petitioner, the petitioner validly claimed her impleadment in
Misc. Case No. 227/1996. However, the learned Additional
District Judge did not take this fact into consideration that
vendor of the petitioner has already died and there is no person
to protect the interest of the petitioner and wrongly dismissed
the application for impleadment filed by the petitioner observing
that the petitioner was at liberty to take appropriate legal
recourse as far as her rights against her vendor.
10. The learned counsel for the petitioner further
submitted that the learned Additional District Judge did not
further consider the provisions of Order 26 Rule 10 (2) of the
Code in the facts of the case that after death of Pleader
Commissioner, he could not be examined on the point of his
report which had already been challenged and the said report
could not be accepted. For this reason, Misc. Case No. 227/1996
itself is liable to be dismissed.
11. The learned counsel for the petitioner further
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
submitted that the learned Additional District Judge has wrongly
held that as per award/decree any transfer of land which are
subject matter of the suit by any party shall be declared void and
there was no prohibition on vendor from selling the property.
The learned counsel also pointed out the fact that the first
Survey Knowing Pleader Commissioner was not removed but
he left. The report of the first Pleader Commissioner was not
challenged and it became final as objections were also rejected.
Thereafter, appointment of second Pleader Commissioner was
only for delivering the possession and, therefore, any report
prepared by the second Survey Knowing Pleader Commissioner
which is in contravention to the first report of the Pleader
Commissioner could not be sustained as res judicata would
come into play and the second report is barred by constructive
res judicata, if the second report tried to change the earlier
report of first Pleader Commissioner. The learned counsel
reiterated that the land in question was in share of Krishna Dutta
and, therefore, Krishna Dutta was well within his rights to
alienate the property in favour of the petitioner.
12. To buttress the claim of the petitioner for her
impleadment, learned counsel relied on the decisions of the
Hon'ble Supreme Court in the case of Dhanlakshmi and Ors.
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
vs. P. Mohan and Ors. reported in (2007) 10 SCC 719 wherein
the Hon'ble Supreme Court held that the appellants having
purchased the undivided share of respondent nos. 2, 3, 4 & 6,
the co-owners, are entitled to come on record in order to work
out the equity in their favour in the final decree proceedings and
the appellants were held to be necessary and proper parties to
the suit.
13. The learned counsel further relied on the decision
of the Hon'ble Supreme Court in the case of Smt. Saila Bala
Dassi vs. Smt. Nirmala Sundari Dassi and another reported in
AIR 1958 SC 394= 1958 SCC OnLine SC 140 wherein the
purchaser, who sought to intervene in a proceeding arising out
of execution of a mortgage decree, was permitted to be brought
on record as additional appellant.
14. The learned counsel further relied on the decision
of the Hon'ble Supreme Court in the case of Khemchand
Shankar Choudhary and another vs. Vishnu Hari Patil and
others reported in (1983) 1 SCC 18 wherein it has been held
that a transferee pendente lite of an interest in an immovable
property which is the subject matter of a suit is a representative
in interest of the party from whom he has acquired that interest.
The transferee has a right to be impleaded as a party to the
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
proceedings and to be heard before any order is made by virtue
of Rule 10 of Order 22, CPC. It has also been held that a
transferee from a party of a property which is the subject matter
of partition can exercise all the rights of the transferor.
15. The learned counsel further relied on the decision
of the Hon'ble Supreme Court in the case of Amit Kumar Shaw
and another vs. Farida Khatoon and another reported in AIR
2005 SC 2209 wherein the Hon'ble Supreme Court while
dealing with the applicability of doctrine of lis pendens, held
that a transferee pendente lite of an interest in immovable
property is a representative-in-interest of the party from whom
he has acquired that interest and he is entitled to be impleaded in
the suit or other proceedings where the transferee pendente lite
is made a party to the litigation, he is entitled to be heard in the
matter on the merits of the case.
16. The learned counsel further relied on the decision
of the Hon'ble Supreme Court in the case of Dhurandhar
Prasad Singh vs. Jai Prakash University and others reported in
(2001) 6 SCC 534 wherein it has been held that if devolution of
any interest occurs during pendency of a suit, seeking leave of
court to continue the suit was held not obligatory. Rule 10 of
Order 22 is based on principle that trial of a suit cannot be
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
brought to an end merely because the interest of a party in the
subject matter of the suit has devolved upon some other person
or entity. It has further been held that even if no step is taken to
seek leave of the court to continue the suit, the suit may be
continued by or against the original party and the successor-in-
interest will be bound by and will get the benefit of the decree.
It has further been held that leave to continue suit after
devolution of any interest during pendency of a suit can be
sought not only by person on whom interest has devolved but
also by plaintiff or any other party or person interested. Thus,
the learned counsel submitted that the petitioner being a vendee
from the co-owner is undoubtedly a successor-in-interest as his
vendor has died and heirs/legal representatives of the vendor are
not taking any interest in prosecuting the Misc. Case No.
227/1996.
17. The learned counsel further relied on the decision
of the Hon'ble Supreme Court in the case of Savitri Devi vs.
District Judge, Gorakhpur and others reported in AIR 1999
SC 976 wherein the Hon'ble Supreme Court allowed the
impleadment of persons, who purchased the property despite the
order of injunction and the transferees were held to be necessary
and proper party.
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
18. Lastly the learned counsel relied on the decision
of the Hon'ble Supreme Court in the case of Sharadamma vs.
Mohammed Pyrejan (dead) through Legal Representatives
and another reported in (2016) 1 SCC 730 wherein the Hon'ble
Supreme Court held that there cannot be dismissal of the suit or
appeal, as the case may be, on account of failure of assignee to
file an application to continue the proceedings.
19. Thus, learned counsel for the petitioner submitted
that the impugned order needs interference by this Court and the
same be set aside and the application of the petitioner be
allowed.
20. The contention of the learned counsel for the
petitioner has been vehemently opposed by the learned counsel
appearing on behalf of the respective respondents. The learned
counsel submitted that the present civil miscellaneous petition
filed by the petitioner is not entertainable on facts as well as on
law and the same is liable to be dismissed. The impugned order
dated 12.12.2022 is a well considered and well discussed order
and needs no interference.
21. At the outset, learned counsel for the respondent
nos. 2, 5 to 7, 9, 10, 13 and 14 submitted that the petitioner
purchased the property which was never in share of Krishna
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
Dutta as it is residential property of the respondents. The Survey
Knowing Pleader Commissioner, who was appointed for giving
delivery of possession and house as per award and modified
decree of the Hon'ble Supreme Court, submitted his report on
various dates including 03.03.2001 and on perusal of the said
report, it is clear that eastern portion of Plot Nos. 3204, 3205,
3206 and 3207 were allotted to Bhagwat Prasad, who was given
delivery of possession on 31.12.2000 and western portion of the
aforesaid plots have been given to Krishna Dutta. In these
circumstances, the intervener/petitioner has no right to claim
impleadment in the proceeding.
22. The learned counsel for the respondents further
submitted that some properties allotted in award in the share of
Bhagwat Prasad had been sold by Krishna Dutta during the
pendency of the litigation and even after delivery of possession.
Krishna Dutta set up a number of persons in order to frustrate
the award. One such instance was setting up one Sri Paswan and
his son by filing a petition for making them parties to
miscellaneous case and to decide their claim over Plot No.529,
but the same was dismissed by the learned District Judge on
27.11.1998. Krishna Dutta filed another petition in the present
Misc. Case No. 227/1996 through his second wife, namely
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
Urmila Devi, on 11.04.1997 regarding Plot Nos.3204, 3205,
3206 and 3207 with claim that these plots belong to her and
again the said petition was dismissed vide order dated
03.04.1999. Thereafter, Krishna Dutta filed a petition on
08.01.2001 with objection to carving out separate takhta on Plot
Nos.3204, 3205, 3206 and 3207. Another petition was filed on
14.03.2001 making allegation against Survey Knowing Pleader
Commissioner with regard to Plot Nos. 3204 to 3207. Bhagwat
Prasad filed rejoinder to both the applications and both the
applications were heard and disposed of on 08.08.2003 with
direction to the Advocate Commissioner to submit a clear report
at once and without further delay.
23. The learned counsel for the respondents further
submitted that after failing in several attempts to claim
exclusive possession of household Plot Nos. 3204 to 3207,
Krishna Dutta mischievously and dishonestly sold the property
to the petitioner in the year 2008 and the intervener/petitioner
knowingly purchased the property and she has, thus, purchased
the litigation.
24. The learned counsel for the respondents further
submitted that it is settled principle of law that if the vendor has
no right, title, interest and possession of the land and house then
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
vendee has also no right, title, interest and possession of such
property. The learned counsel further submitted that as per
direction of the Hon'ble Supreme Court, the Survey Knowing
Pleader Commissioner has already effected delivery of
possession of all immovable properties including Plot Nos. 3204
to 3207. So far as third party interest is concerned, it is clear
from the order of the Hon'ble Supreme Court that the learned
District Judge has nothing to do even in case of any third party
claim unless parties to this proceeding so desire. In these
circumstances, learned subordinate court has no jurisdiction to
entertain any application or claim of any third party interest.
Therefore, the impugned order passed by the learned Additional
District Judge, XIV, Patna is legal, valid and as per stipulation
of the Hon'ble Supreme Court.
25. The learned counsel for the respondents further
submitted that Bhagwat Prasad was given delivery of possession
in terms of report of Survey Knowing Pleader Commissioner
dated 03.03.2001 and his name was mutated in the State record
vide order dated 09.11.2005 and he started depositing the rent to
the Government of Bihar since 2006-07 till 2017-18. Therefore,
the claim of the petitioner that after purchase of the land, she
has come in possession of the property in question is false and
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
baseless. The learned counsel next submits that the heirs of the
deceased brothers have come on record in Misc. Case No.
227/1996, but the learned subordinate court has no jurisdiction
to add party in the proceeding of delivery of possession because
it has to comply the orders of the Hon'ble Supreme Court in
terms of the award and modified decree. The learned counsel
further submitted that delivery of possession to the parties has
already taken place and Misc. Case No. 227/1996 is pending
only for acceptance of the reports submitted by the Pleader
Commissioner. The objection of the opposite party was already
rejected on 05.03.2016. So there is no scope of any third party
to be impleaded in the present proceeding or to challenge the
same.
26. The learned counsel referred to the decision of
this Court in the case of Dera Sahi Samadan Patiala vs. The
State of Bihar and anr. (Civil Misc. No.343 of 2023) wherein
this Court did not allow the impleadment of a third party entity
in execution proceeding who claimed to represent the interest of
the decree-holder.
27. Thus, learned counsel submitted that the
impugned order dated 12.12.2022 is in consonance with law and
there is no requirement of interference in the impugned order
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
and the same be affirmed.
28. I have given my thoughtful consideration to the
rival submission of the parties and also perused the records.
29. 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."
30. The aforesaid provision confers discretion upon
the court to make any person a party at any stage of the
proceeding of a suit, but this discretion is to be exercised
judiciously and can never be arbitrary or whimsical.
31. 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 relevant to quote paragraphs 13, 14, 15, 22, 25 & 27 of the
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
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
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,
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
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
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.
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
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
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
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
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".
32. The learned trial court has declined to entertain
the prayer of the petitioner on the grounds that the delivery of
possession has already taken place and further delivery to the
petitioner could not be given. The learned trial court further
observed that any transfer of land which are subject matter of
suit by any party shall be declared void as per terms of
award/decree, which attained finality vide the order of the
Hon'ble Supreme Court dated 10.10.1996 passed in Civil
Appeal No. 7475/1994. On these two grounds, the learned trial
court dismissed the petition of the petitioner seeking
impleadment in the miscellaneous case. Now, the claim of the
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
petitioner is only on the ground that the land she purchased was
part of Schedule II property, which was allotted to Krishna
Dutta and it was not a house which was to be divided in terms of
modified decree dated 10.10.1996 passed in Civil Appeal No.
7475/1994. However, this claim of the petitioner does not
appear to be sustainable in the light of report of learned Survey
Knowing Pleader Commissioner. The documents relied on by
the learned Survey Knowing Pleader Commissioner Mr.
Shivanand Singh showed that Plot Nos. 3205 to 3207 contained
houses. If this finding of fact is there, there is no occasion for
this Court to take a contrary view. The submission of the
petitioner that the report of earlier Pleader Commissioner was
not taken into consideration or that there has been objection to
the report of subsequent Pleader Commissioner are not of much
significance. If delivery of possession had already taken place
and the same was not challenged, any claim that objection to the
report of Survey Knowing Pleader Commissioner is still
pending would be without any merit. In any case, if such
objection is pending, the person, who has filed the objection,
can raise the matter before the court concerned and the court
could dispose of such petition by passing an order. The
petitioner cannot take advantage of this fact. However, from
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
perusal of report, it is evident that a petition filed by Krishna
Dutta dated 10.11.2003 challenging the report of Advocate
Commissioner Shivanand Singh has been rejected by the court
of learned Additional District Judge-III, Patna vide order dated
05.03.2016, though on the ground that it was neither signed nor
supported with the affidavit. If the property purchased by the
petitioner was not in share of Krishna Dutta and was partitioned
in ratio of 50:50 in terms of the orders of the Hon'ble Supreme
Court dated 10.10.1996 passed in Civil Appeal No. 7475/1994,
being a third party, such transfer lis pendens is void and confers
no right upon the petitioner. It is also to be taken note of petition
of some other persons to be made party on the ground that they
were purchasers from Krishna Dutta was rejected by the learned
trial court vide order dated 03.12.2003 and their objections were
disposed of.
33. Further, the mandate of the modified decree is also
not to be lost sight of. From the tone and tenor of the order
dated 10.10.1996 passed in Civil Appeal No. 7475/1994, it is
apparent that rights of only those third partied were protected
which was created prior to passing of the modified decree and
subsequent transfer did not confer any right to any third party
and if a third party is aggrieved, such party can take action
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
against their vendor, if so advised. For this reason, the plaintiff
has been agitating a right which she never has, to begin with.
Thereafter, after effecting delivery of possession with regard to
Khesra Nos. 3205 to 3207 in terms of the report of the Pleader
Commissioner dated 17.09.2003, so there remained nothing in
the matter for the petitioner to agitate and support her claim.
34. Therefore, the fact becomes apparent that the
petitioner has not even a semblance of right to intervene in the
subject matter which arises out of an execution proceeding and
her claim for impleadment would fail for being without any
substance. In the execution proceedings, the petitioner is merely
an interloper and being a busybody, she could not seek
impleadment in Misc. Case No.227/1996. Further, as the
miscellaneous case has been instituted to execute the award,
there is no scope for a third party to seek impleadment in such
proceeding and reference could also be made to the decision of
this Court in the case of Dera Sahi Samadan (supra). If the
petitioner claims right, title and possession over the suit
property, she can have recourse of law in appropriate proceeding
but not in the instant miscellaneous case.
35. In the light of these facts and circumstances as
discussed hereinabove, I am of the considered opinion that the
Patna High Court C.Misc. No.185 of 2023 dt.06-05-2025
petitioner has failed to make out a case in her favour for
impleadment in Misc. Case No. 227/1996 arising out of
Execution case No. 08/1987. For this reason, the authorities
cited by the petitioners are of no help as the facts and
circumstances of the present case are quite different from the
facts of the cases cited by the learned counsel for the petitioner.
36. Therefore, I do not find any jurisdictional error in
the order dated 12.12.2022 passed in Misc. Case No. 227/1996
by learned Additional District Judge-XIV, Patna and the same is
affirmed.
37. According, the present petition stands dismissed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR
CAV DATE 11.02.2025
Uploading Date 07.05.2025
Transmission Date NA
