IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19339 of 2011 Laliteshwar Prasad Sinha Versus Ram Dayal Sah & Ors ---------------------------------- O R D E R 10. 30.11.2011. 1. I have already heard the learned counsel, Mr. Waliur Rehman on behalf of the petitioner and Mr. Gopal Govind Mishra, the learned counsel on behalf of the respondent. 2. This application under Article 227 of the Constitution of India has been filed by the intervener- petitioner against the order dated 23.09.2008 passed by Munsif IInd Ara in Title Suit No.15 of 2003 whereby the learned Court below dismissed the application of the petitioner dated 19.08.2008 which was filed for being added as party in place of plaintiff No.4 and the learned Court below held that the suit has abated as against plaintiff No.4. 3. Admittedly, the suit was filed for declaration of title and possession on the ground that the suit land belonged to the ancestor of the plaintiff and they have got joint possession. During the pendency of the suit, plaintiff No.4, Dineshwary Prasad Srivastava died on 16.09.2006 and a substitution application was filed. However, widow of plaintiff No.4 had sold her husband’s - 2 - share in the joint family property to the intervener- petitioner by registered sale deed dated 13.08.2007. Thereafter, the intervener filed the application for being added as party. 4. In view of the above facts and circumstances of the case, it is clear that during the pendnecy of the suit, the intervener-petitioner had purchased the share of plaintiff No.4. The plaintiffs filed the suit claiming title and possession over the lane only and for confirmation of their possession and in the alternative for recovery of possession after removing the encroachment. Since after purchase, the share of plaintiff No.4, the intervener became the co-sharer of the plaintiff regarding the house. It further appears that since the widow of plaintiff No.4 had already sold the property, the intervener filed the application for being added as party. 5. It is well settled principle of law that the purchasers as a matter of right cannot claim for being added as party but the purchasers during the pendency of the suit should be allowed to be added party generally, as has been held by the Apex Court in A.I.R.2005 (Supreme Court) 2209 Amit Kumar Shaw & Anr Vs. Farida Khatoon & Anr. In my opinion, therefore, the learned Court below has gravely erred in not allowing the application of the intervener- - 3 - petitioner for being added as party and, therefore, the learned Court below has failed to exercise a jurisdiction vested in it by law. In my opinion, therefore, so far this part of the impugned order is concerned is liable to be set aside. 6. So far the other part whereby the learned Court below held that the suit has abated is concerned also in my opinion, is against the law because the estate of the deceased plaintiff No.4 was being sufficiently represented by the intervener-petitioner as she has already purchased the share of deceased plaintiff No.4. In such circumstances, it cannot be said that the suit has abated so far it relates to plaintiff No.4 because of non-substitution of his widow and daughter. Order 22 Rule 3 provides for substitution of the legal representatives and in view of the definition of “legal representatives” it will include any person who for the time being intermeddles with the property of the deceased. Therefore, the intervener-petitioner being the purchaser is a legal representative of the deceased plaintiff No.4 who had filed the application for being added as party in place of plaintiff No.4. Labeling of the application is not very material. The substance of the relief claimed by the intervener is required to be considered. The widow and the daughter of plaintiff No.4 are not claiming for being added as party because - 4 - they have parted with their interest in favour of the present intervener. So far Section 52 of the T.P. Act is concerned, it is a matter that may be decided at the time of final hearing of the suit but at this stage the purchaser should be added as party in the suit to enable him to protect his interest as has been held by the Apex Court referred to above. 7. In view of the above facts and circumstances of the case, the impugned order is not sustainable in the eye of law. Accordingly, it is set aside. This writ application is thus allowed and the intervener-petitioner is added / substituted in place of the deceased plaintiff No.4 and it is held that the suit has not abated for non- substitution of widow of the daughter as the estate of the deceased plaintiff No.4 is sufficiently represented by the present interveners. Patna High Court, Patna The 30thday of November 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)