IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7844 of 2010 1. Rakesh Roshan S/O Late Shashi Bhusan Prasad Thakur R/O Vill.- Rahua, P.S.- Warish Nagar, Distt.- Samastipur 2. Nitesh Kumar S/O Sanjay Prasad Thakur R/O Vill.- Rahua, P.S.- Warish Nagar, Distt.- Samastipur Versus 1. Smt. Chandrakala Devi @ Chandar Devi W/O Sri Madheshwar Prasad Tiwary R/O Vill. And P.O. Radhaur, P.S. Sursand, P.S. And Distt.- Sitamarhi Daughter Of Sri Yogendra Prasad Thakur, R/O Vill.- Rahua, East Police Station Varish Nagar, Distt.- Samastipur 2. Smt. Suniti Singh W/O Sri Arun Kumar Singh R/O Vill.- P.O. Agari, P.S. Anjariya, Distt.- East Champaran Daughter Of Sri Yogendra Prasad Thakur, R/O Vill.- Rahua, East Police Station Varish Nagar, Distt.- Samastipur 3. Smt. Sudha Rai W/O Brajendra Kumar Rai R/O Vill. And P.O. Kalyanpur Basti, P.S. Moinudin Nagar, Distt.- Samastipur. Daughter Of Sri Yogendra Prasad Thakur, R/O Vill.- Rahua, East Police Station Varish Nagar, Distt.- Samastipur 4. Sri Chandra Mohan Sharma R/O Vill. And P.O. Pathsara, P.S. Pipar, Distt.- Samastipur 4A. Ans Kumar Sharma S/O Sri Chandra Mohan Sharma R/O Vill. And P.O. Pathsara, P.S. Pipar, Distt.- Samastipur 4B. Madhurendra Kumar S/O Sri Chandra Mohan Sharma R/O Vill. And P.O. Pathsara, P.S. Pipar, Distt.- Samastipur 5. Smt. Nilam Singh @ Chandrasan W/O Purushottam Kumar Singh, D/O Sri Yogendra Prasad Thakur R/O Vill.- Rahua, P.S. Warish Nagar, R/O Vill. And P.O. Kalyanpur, P.S. And Distt.- Samastipur --------------------------- 3 20.09.2011 Heard Mr. Satish Kumar, learned counsel for the petitioner and Mr. Pramod Kumar Sinha, learned counsel appearing on behalf of the respondents. The writ petition has been filed for quashing the order dated 03.02.2010 passed by Sub-Judge-1, Samastipur in Partition Suit No. 191 of 2007 whereby the learned Court below has rejected the petition filed by the petitioner under Order 1 Rule 10(2) of the Code of Civil Procedure for adding him as a party to the suit. Facts of the case are not in dispute. The plaintiff- 2 respondent 1st set had filed the partition suit in question claiming 4/6 share in the suit property. Whereas the plaintiff-respondent No.1 to 3 and 5 are daughters, the defendant No.1, Yogendra Prasad Thakur is the father of these daughters and who has since deceased on 01.09.2008, during the pendency of the proceedings. The defendant No.1, has contested the claim and has filed his written statement denying the claim of the plaintiffs. As all the heirs of the defendant No.1, Yogendra Prasad Thakur were already on record of the proceedings hence no substitution did take place. The petitioners herein claim to be a legatee on the basis of a Will said to have been executed by the defendant No.1 late Yogendra Prasad Thakur on 27.06.2007 and for which he has filed a probate case giving rise to Probate Case No. 4 of 2009, which is pending before the District Judge Samastipur. The prayer of the petitioner for impleadment, has been rejected by the order impugned dated 03.02.2010 inter alia on the grounds that neither the name of the petitioner appears in either of the pleadings placed on the record of the suit i.e in the plaint or the written statement nor the so called Will is under challenge in the partition suit, hence the petitioners were not necessary party. A counter affidavit has also been filed on behalf of the plaintiff-respondents enclosing the copy of the written statement filed by the deceased, Yogendra Prasad Thakur. Learned counsel for the petitioners while referring to the statement made in the written statement submits that the father 3 Yogendra Prasad Yadav while denying the claim of the plaintiffs- respondents has also stated that the property belonged to somebody else. He thus submits that the reference of the third person is to him and which fact is substantiated by the Will dated 27.06.2007 for which the probate case in question has been filed by him. Having heard learned counsel for the parties and upon consideration of the materials available on the records of the proceedings it is very clear that the petitioner is in no way related to the parties to the suits nor does his name finds mention in the written statement filed by the deceased, Yogendra Prasad Yadav, who also does not whisper about any Will executed by him in favour of the present petitioners. In that view of the matter, I find no infirmity in the order passed by the Court below. The writ petition is dismissed. Bibhash (Jyoti Saran, J.)