IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18345 of 2011 Prabhakar Das & Ors Versus Prabhunath Prasad & Ors ----------- 06. 22.11.2011 I have heard the learned senior counsel, Mr. S.S. Duivedi on behalf of the petitioner and the learned counsel, Mr. Anshuman on behalf of the respondent. (2) This application has been filed by the petitioners under Article 227 of the Constitution of India against the order dated 18.07.2008 passed by 1st Additional District Judge, Gopalganj in title appeal no.186 of 1973 whereby the application filed by the respondent no.12 to 34 for being added as co-appellant in the title appeal has been allowed by the Appellate Court. (3) The learned senior counsel, Mr. Duivedi appearing on behalf of the petitioner submitted that the respondent nos.12 to 34 who have been added as party are not at all necessary party and, therefore, the learned Court below could not have added them as party in the appeal because it will delay the matter. The plaintiffs filed the suit praying for declaration that he was in possession of the suit property which was Garmajarua Malik. The Hathua Raj Estate vested in the State of Bihar and he acquired tenancy right. The plaintiff claimed to be the purchaser whereas the defendant claimed the said land on the basis of khas possession on the date of vesting. 2 Therefore, according to the learned counsel for the petitioner, so far this question is concerned, the respondent nos.12 to 34 are not necessary party at all and in their absence this question will very well be answered by the Court below. (4) On the other hand, the learned counsel for the respondent submitted that the petitioner was defendant- respondent. The plaintiff never raised objection nor the plaintiff has challenged the impugned order nor the plaintiff is objecting to the addition of the respondent nos.12 to 34 as co-appellant. (5) From perusal of the record, it appears that the original plaintiff, Shyam Sunder Prasad died and in his place, the respondent nos.1 to 11 were substituted. During the pendency of the appeal the present application for being added as co-appellant was filed by the respondent nos.12 to 34 on the ground that the original plaintiff, Shyam Sunder has purchased the property out of joint family fund and the respondents have interest in the said property which is involved in the suit. So far this question is concerned that the respondent nos.12 to 34 are heirs of original plaintiff, is not disputed by the defendant. On the other hand, the co-appellant admitted this fact. Considering these facts and circumstances of the case, the learned Court below has allowed them to be added as co- appellant. It may be mentioned here that the plaintiff’s 3 suit has been dismissed and the plaintiffs are the appellants. According to the learned Court below, since they have got interest in the property, they are necessary party. (6) Therefore, I find no jurisdictional error in the impugned order. Only because earlier, the application was either dismissed for default or permitted to be withdrawn, in my opinion, it will not operate as resjudicata. (7) I, therefore, find no reason to interfere with the impugned order. Accordingly, this writ application is dismissed. Saurabh ( Mungeshwar Sahoo, J.)