IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3825 of 2010 Smt.Meera Devi Versus Rajesh Kumar & Ors ----------- 02. 04.07.2011 Heard Mr. Pushkar Narain Shahi, learned counsel appearing on behalf of the petitioners. The petitioner has challenged a part of the order dated 12.11.2009 passed by Shri Prabhu Nath Prasad, learned Sub Judge-III, Sitamarhi in Title Suit No. 109 of 1996 to the extent that the prayer of the petitioner for impleadment of one Madhurendra Kumar as party to the suit has been refused and consequently the application filed under Order 1 Rule 10 of the Code of Civil Procedure has been rejected. The facts indisputed in the present case are that the petitioner and the respondent no. 28 are own sisters. The suit in question was filed for partition of the scheduled property which has also been described in paragraph-4 to 6 of the present petition. During the pendency of the present suit another partition suit was filed at the instance of the respondent no. 28 giving rise to Title Suit No. 22 of 1997. One of the plots in both the suits is revisional survey plot no. 470 of khata no. 92 having an area of 0.77 decimals and which forms part of the scheduled property in either of the suits. It is indisputed that a preliminary decree has already been passed in Title Suit No. 22 of 2 1997 dividing the landed property in survey plot no. 470 having an area of 0.77 decimals into equal half i.e. the petitioner and the respondent no. 28 have been allotted an equal area of 0.38 ½ decimals. It is further admitted that the preliminary decree has not been challenged by the petitioner who is defendant in the aforesaid suit. During the pendency of the two suits the respondent no. 13 on the basis of a power of attorney executed by the respondent no. 28 has sold 0.38 ½ decimals in favour of one Madhurendra Kumar. Gathering knowledge of the aforesaid sale, a petition under Order 1 Rule 10 of the Code of Civil Procedure was filed by the petitioner for impleadment of the purchasers and for grant of ad interim injunction. By the impugned order dated 12.11.2009 passed in Title Suit No. 109 of 1996, both the petitions were rejected. Learned counsel for the petitioner submits that the order of the Court below insofar as the injunction petition was rejected is subject matter of Miscellaneous Appeal No. 112 of 2010 in which notices have been issued. It is submitted that the second part of the order rejecting the petition filed by the petitioner under Order 1 Rule 10 for impleadment of the purchaser Madhurendra Kumar has been rejected by the Court below is the subject matter of the present proceedings. Learned counsel for the 3 petitioner admits to the position that the property stands partitioned between the contesting parties being the petitioner and the respondent no. 28, insofar as revisional survey plot no. 470 is concerned. The only objection that is being raised in the present petition is that since the demarcation has not yet taken place, hence the sale cannot be completed as the area allotted to the respondent no. 28 is yet to be determined under the final decree to be passed in Title Suit No. 22 of 1997. He thus submits that it is in these circumstances that the petitions aforesaid were filed in the present suit. A perusal of the order passed by the Court below shows that the Subordinate Judge-III, Sitamarhi has rejected the petition filed under Order 1 Rule 10 of the Code of Civil Procedure primarily on grounds that the property in survey plot no. 470 stood partitioned under the preliminary decree passed in Title Suit No. 22 of 1997, in equal half between the respondent no. 28 and the petitioner and each has been allotted an area of 38 ½ decimals from the said plot and hence respondent no. 28 was at liberty to make sale of the said area of the property to the extent of 38 ½ decimals. Although plot no. 470 has been mentioned in schedule-1 of the plaint in Title Suit no. 109 of 1996 but as the title in said plot no. 470 has already been considered and adjudicated upon in Title Suit No. 22 4 of 1997, the issue of title stands concluded and to that extent the petition for impleadment has been rightly rejected by the court below. Insofar as the contention of the petitioner regarding non preparation of a final decree and non-demarcation of plot no. 470 is concerned, she shall be at liberty to bring this fact to the notice of the court below in seisin of Title Suit No. 22 of 1997. With the aforesaid observations this writ petition stands disposed of. S.Sb/- (Jyoti Saran, J.)