IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1312 of 2008 CHUNCHUN PRASAD KESHARI Versus SMT.SULOCHANA DEVI & ORS ----------- 3 16/10/2008 Heard counsel for the petitioner and counsel for the opposite parties. In the opinion of this Court the impugned order dated 16.7.2008 impleading Binod Kumar Chaurasiya, opposite party herein, as party to the suit, is not sustainable on two reasons. Firstly, it is a suit of partition and Binod Kumar Chaurasiya admittedly is not a family member, who can have share, muchless, a share in the suit property in the aforesaid partition suit, which has to be definitely decided amongst the family members only. That apart, intervener Binod Kumar Chaurasiya had also filed his own independent title suit claiming title to the part of the property which is subject matter of partition suit and had lost both in the trial court and also in the lower appellate court. Second Appeal, however, being S.A. No. 317 of 2004 is still pending and therefore whatever rights that he can have as with regard to the suit 2 property of the partition suit, can definitely be protected by him by pursuing his pending second appeal, S.A. 317/2004. The plea taken by counsel for the opposite parties that the opposite party Binod Kumar Chaurasiya is still in possession of the suit property and therefore his intervention is necessary, has to be only noticed for its being rejected, in as much as, Mr. Ashok Kumar Keshari, learned counsel appearing on behalf of the petitioner would submit that the prayer for stay in the second appeal, S.A. No. 317 of 2004 at the instance of Binod Kumar Chaurasiya, the intervener, has been rejected by this court. Counsel appearing on behalf of the opposite parties also does not dispute this position. That being so, this Court would not find any reason to allow intervention of Binod Kumar Chaurasiya in a partition suit, as has been done by the impugned order. Consequently, the impugned order is set aside and this application is allowed. Abhay Kumar ( Mihir Kumar Jha, J.)