IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17581 of 2011 Rajgrihi Singh & Ors Versus Yogendra Prasad Singh & Ors ---------------------------------- 10. 21.12.2011 I have heard the learned counsel, Mr. Ashutosh Kumar on behalf of the petitioners and the learned counsel, Mr. Rajkumar on behalf of the plaintiffs- respondents. The interveners have filed this application under Article 227 of the Constitution of India against the order dated 05.09.2008 passed by Civil Judge III, Buxar in Title Partition Suit No.85 of 2007 whereby the learned Court below rejected the application filed by the petitioners under Order 1 Rule 10 read with Section 151 C.P.C. for being impleaded as defendant in the suit. The learned counsel for the petitioners submitted that the plaintiffs as well as the defendants have admitted that the petitioners are the descendants of Heera Singh i.e. brother of Sukhdeo Singh. The granddaughters of Sukhdeo Singh i.e. the daughters of Chhabi Singh have been made party in the partition suit but the petitioners have not been made party. The petitioners have direct interest in the subject matter of the suit and, therefore, the learned Court below could not have rejected the application filed by the petitioners. The learned counsel placed the genealogy table mentioned in Schedule-I of the plaint which has 2 been annexed as Annexure-I to the writ application to show the relationship of the petitioners with the plaintiffs and defendants. On the basis of this genealogy table, the learned counsel submitted that they are necessary parties in the suit. On the other hand, the learned counsel for the respondents submitted that the partition suit has not been filed by the plaintiffs for partition of the joint family property. In fact, the partition suit has been filed for partition of the property which has been purchased jointly through 5 registered sale deeds in the name of late Bishwanath Singh, late Ramsundar Singh, Kedar Singh, late Chhabi Singh, late Ram Govind Singh and Radha Mohan Singh and Chandrashekhar Singh. Neither the father of the petitioner nor grandfather of the petitioner is co-purchaser and, therefore, they are not required to be made party in the suit because they have no interest in the suit property. Moreover, the plaintiffs are not praying any relief against the interveners. In such circumstances, the plaintiff cannot be compelled to made them party in the suit and, therefore, the learned Court below rightly rejected the application. From perusal of the impugned order, it appears that the learned Court below found that none of the sale deeds through which the properties have been acquired are in the name of either the father of the 3 petitioner or grandfather of the petitioner or even the petitioner. The descendants of the purchasers are already on record. The suit has been filed for partition of the purchased property through 5 registered sale deeds and not for partition of the joint family property and, therefore, rejected the application. In Mumbai International Airport Private Limited vs. Regency Convention Centre, (2010)7 SCC 417, the Apex Court has held that Order 1 Rule 10(2) C.P.C. makes it clear that a Court may at any stage of the proceedings either upon or even without any application and on such terms as may appear to it to be just, direct that any person who ought to have been joined as plaintiff or defendant but not added as such or whose presence before the Court may be necessary in order to enable the Court to effectively and completely adjudicate upon and settle the questions involved in the suit direct that such person be added as party. The Apex Court also held that the general rule in regard to impleadment of parties is that the plaintiff in a suit, being domimus litis may choose the person against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10 (2) C.P.C. In the present 4 case at our hand, according to the plaintiffs, the interveners are not necessary party because the persons in whose names the property has been purchased and/or their descendants who are necessary party have been added as defendant in the suit. Admittedly, the plaintiff is not claiming any relief against the petitioners. The defendant’s case is also not that the interveners have a direct share or interest in the property. Their defence is only that in the genealogy, the names of the interveners have been omitted. In such circumstances, if the interveners are added then they have to prove their title with respect to the property. Only because they are descendants of brother of Sukhdeo Singh as a matter of right they cannot be added as party. In such circumstances, a new dispute will arise between the parties and the present interveners. This question is not the issue involved in the present partition suit. In Kasturi vs. Iyyamperumal, (2005) 6 SCC 733, the Apex Court has held that the expression “all the questions involved in the suit” used in Order 1 Rule 10(2) C.P.C. is abundantly clear that the legislature clearly meant that only the controversies raised as between the parties to the litigation must be gone into, i.e. to say controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies 5 which may arise between the plaintiffs or between the defendants inter se or questions between the parties to the suit and third party. Now, therefore, in view of this decision, the question which is being raised by the petitioners is between the parties to the partition suit and the interveners. Therefore, this dispute does not come within the expression “all the questions involved in the suit”. In the case of Mumbai International Airport Private Limited(supra), the Apex Court has given some guidelines and at paragraph 24.3, it has been held that if a person makes an application for being impleaded contending that he is a necessary party, and if the Court finds that he is a necessary party it can implead him. If the plaintiff opposes such impleadment then instead of impleading such a party, who is found to be necessary party, the Court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence, the plaintiff was not entitled to any relief in the suit. In the present case at our hand, the learned Court below after considering the facts of the case came to the conclusion that the petitioners are not necessary party. In view of the law laid down by the Apex Court referred to above and the conclusion arrived at by the trial court, I do not find any illegality or impropriety or jurisdictional error in the impugned order. In my opinion, therefore, the 6 impugned order cannot be interfered with in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Accordingly, this application is dismissed. Saurabh (Mungeshwar Sahoo,J.)