IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.54 of 2008 ---- Rajneesh Kumar Rai @ Rajnish Kumar, S/O Sri Vidyanand Rai Resident of Village and P.O. Dharmpur, P.S. Sahar (Chouri), District-Bhojpur. Proposed defendant-petitioner. Versus 1. Rajkeshwar Rai son of Late Ram Raj Rai 2. Sharad Nand Rai 3. Vidyanand Rai 4. Hridyanand Rai 5. Anil Kumar Rai All (O.P.Nos. 2 to 5) are sons of Late Kesho Rai 6. Krishna Kuwar, widow of Late Satya Narain Rai 7. Tapeshara Devi, wife of Musaheb Rai Defendants- Opposite Party 1st Set. 8. Musaheb Rai S/o Late Ram Raj Rai 9. Agrenand Rai S/o MusahebRai All (O.P.Nos. 1 to 9) are residents of Village/ P.O.- Dharmpur, P.S. Sahar (Chouri), District-Bhojpur. Plaintiffs-Opposite Party 2nd Set. ------- For the petitioner : Mr. Sidhendra Narayan Singh, Advocate For the opposite parties: None. ---- 04. 04.11.2009 Heard learned counsel for the petitioner. 2. This civil revision has been filed by the intervenor- petitioner challenging order dated 03.12.2007 by which the learned Subordinate Judge-IV, Bhojpur rejected his application under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure for being added as intervenor-defendant in F.D. Proceeding No.267 of 1992 on the basis of his Probate Case no.46 of 2007 which is pending. 3. The matter arises out of Title Suit No.267 of 1992 which was filed by the plaintiffs-opposite parties 2nd Set for partition of their 1/3rd share in the suit property which was claimed as joint family property and for other ancillary reliefs. The said suit was - 2 - decreed on 29.03.1997 and accordingly a preliminary decree was prepared. Thereafter, the plaintiffs filed an application for preparation of the final decree and thereafter F.D. Proceeding No.267 of 1992 started. 4. The claim of the petitioner is that one Chanakiya Devi was the member of the same joint family to which the parties to the suit belong, but she was wrongly not impleaded in the said suit, nor the applicant-petitioner was impleaded although the said Chanakiya Devi had executed a Will in the year 1990 in favour of the applicant-petitioner. He has also stated that at the time of the said Will the petitioner was a minor and after attaining majority he had filed Probate Case No.46 of 2007 for probate of the Will with respect to the properties involved in the partition suit. It is also stated that immediately after the filing of the probate case the petitioner had filed an application in the Final Decree Proceeding No.267 of 1992 for being added as a party, but the said application was rejected by the learned court below vide its order dated 03.12.2007 which is under challenge in the instant civil revision. 5. Although learned counsel for the petitioner vehemently argued on merit against the impugned order, but it is quite apparent from the affidavit that the age of the petitioner in January, 2008 was 29 years and hence he was born in the year 1979 and had attained majority in the year 1997, but for eight years, the petitioner neither filed any probate case, nor filed any application for being added as party to the suit, nor even he challenged the judgment - 3 - and preliminary decree of the trial court. Furthermore, the final decree proceeding has not yet concluded and no order has been passed therein till date and hence the claim of the petitioner and the genuineness of his will claimed by him and the right and title of the testator have also not been established. Thus, there was no occasion for the learned court below to add the applicant-petitioner as parties to the final decree proceeding. Furthermore, the rights of the parties are decided in a preliminary decree, whereas mere Takhta-bandi is done in the final decree proceeding and hence mere impleadment of the applicant-petitioner in the final decree proceeding cannot be for any contrary purpose as the final decree has to be prepared in accordance with the rights given to the parties to the suit in the preliminary decree. 6. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the learned court below, nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed. However, if the aforesaid Probate Case No.46 of 2007 is allowed in his favour he will be at liberty to file an appropriate case before an appropriate court for the redressal of his grievance, including setting aside the judgment and decree of the trial court. Sunil (S. N. Hussain, J.)