CIVIL REVISION No.1080 OF 2008 ---- 1. Smt. Shyamsundari Devi @ Somundari Devi, W/O Sri Chandeshwar Singh, 2. Smt. Geeta Devi W/O Sri Bijendra Singh, Both residing at Village + P.O.-Bedauli, P.S. Bhagawanganj, District- Patna at present Resident of Mohalla-Mithapur, Ramdas Path, T.T. Colony, P.S. Jakkanpur, District-Patna. -- Applicants-Petitioners. Versus 1. Mukesh Kumar Sinha, Son of Rakesh Kumar Sinha. -- Plaintiff-Decree Holder. 2. Lovely Kumari D/O Rakesh Kumar Sinha, 3. Babli Kumari D/O Rakesh Kumar Sinha, 4. Rita Sinha W/O Rakesh Kumar Sinha, All residents of under C/o Bipin Kumar Sinha, Mohalla Mithapur ‘B’ Area Ram Das Path, P.O. + P.S.- Jakkanpur, District-Patna. -- Defendants-Judgment Debtors-Opposite parties. ---- For the petitioners : M/s Mallika Mazumdar & Prem Kumar, Advocates. For Opposite party no.1 :M/s Jashawir Singh Arora, Ajay Kumar @Srivastava & Ravi Bhatia, Advocates. For opposite parties no.2 to 4: Mr. Ashok Kumar Sinha No.3, Advocate. ----- WITH CIVIL REVISION NO.1162 OF 2008 ----- Mohan Sharma son of Late Kapildeo Sharma, Resident of Village Chatar, P.O. Hati, P.S.-Kako, District-Jehanabad. --Intervenor- Petitioner. Versus 1. Mukesh Kumar Sinha @ Mukesh Kumar, Son of Late Rakesh @ Rakesh Kumar Sinha @ Rakesh Kumar, resident of C/o Vipin Kumar Sinha, Mohalla-Mithapur ‘B’ Area, Ram Das Path, P.O. + P.S. Jakkanpur, District-Patna. -- Plaintiff-Decree Holder. 2. Smt.Rita Sinha wife of Late Rakesh Kumar @ Rakesh Kumar Sinha 3. Lovely Kumari 4. Babli Kumari Nos. 3 and 4 both daughters of Late Rakesh Kumar @ Rakesh Kumar Sinha. All residents of C/o Vipin Kumar Sinha, Mohalla Mithapur ‘B’ Area Ram Das Path, P.O. + P.S.- Jakkanpur, District-Patna. -- Defendants-Judgment Debtors-Opposite parties. ---- For the petitioners : Mr. S.S.Dwivedi, Senior Advocate. M/s Pandit Jee Pandey & Navnit Kumar Tiwary, Advoctes. For Opposite party no.1 :M/s Jashawir Singh Arora, Ajay Kumar @Srivastava & Ravi Bhatia, Advocates. For opposite parties no.2 to 4: Mr. Ashok Kumar Sinha No.3, Advocate. ----- - 2 - P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN ---- S.N. Hussain, J. Heard learned counsel for the petitioners of both the cases and learned counsel for the opposite parties in both the cases. 2. Both the aforesaid civil revisions are taken up together as analogous cases because both the sets of petitioners in the two civil revisions are aggrieved by the same order dated 29.05.2008 passed by the learned Subordinate Judge- I, Patna in Execution Case No.26 of 1999 in which both the sets of petitioners were intervenors, whereas opposite party no.1 of both the civil revisions was plaintiff-decree holder and opposite parties no.2 to 4 in both the civil revisions were defendants-judgments debtors. 3. The petitioners of both the civil revisions are aggrieved by the said order of the learned court below by which the prayer of the plaintiff-decree holder-opposite party no.1 for amendments in the plaint, preliminary decree and final decree of Title Suit No.154 of 1986 as well as in the execution petition of Execution Case No.26 of 1999 arising out of the said Title Suit No.154 of 1986 was allowed. 4. The above mentioned Title Suit No.154 of 1986 was filed on 29.04.1986 by Mukesh Kumar Sinha, namely the plaintiff-opposite party no.1 for partition of his 1/3rd share in the suit property detailed in Schedule-I as well as in paragraph 2 of the plaint, namely Holding No.233/C/417, Circle No.258, Ward No.36, Tauzi No.497, Khata No.50, Khesara No.117 having an area of 2 ¼ katha containing house situated in Mohalla Mithapur ‘B’ Area, Ramdas Path, P.S. Jakkanpur, Patna claiming that it was the ancestral property, but was being misappropriated by his father Rakesh Kumar Sinha, namely defendant no.1, whose wife Smt. Reeta Sinha was defendant no.2 (O.P.No.2). 5. Defendant no.1 contested the suit by filing written statement and claiming that he was the exclusive owner of the suit property and there was no - 3 - unity of title and possession between the parties and that the allegation of waste and negligence was not correct and hence the plaintiff had no right to bring the suit for partition which was not maintainable. During the pendency of the suit, the original defendant no.1 died on 19.07.1990 and his two daughters (opposite parties no.3 and 4) were substituted as his widow was already a party to the suit as defendant no.2. However, the said defendant no.2 as well as the substituted defendants did not raise any objection to the claim of the plaintiff and the suit was decreed on 30.09.1992 without contest and a preliminary decree of partition was passed. Thereafter the proceeding of preparation of final decree started in which Survey Knowing Pleader Commissioner was appointed who submitted his report of Taktabandi etc. which was accepted by the court and on 09.07.1998 final decree was prepared. 6. For execution of the aforesaid final decree, the plaintiff-decree holder filed Execution Case No.26 of 1999 on 23.11.1999 which proceeded and on 01.05.2003 writ of delivery of possession was issued by the Executing Court, whereafter on 19.07.2003, the Nazir reported that delivery of possession had been effected as per the final decree passed in the said suit. 7. It transpires that immediately thereafter in July 2003 itself the petitioners of C.R.1080 of 2008 filed Miscellaneous Case No.19 of 2003, whereas petitioners of C.R.No.1162 of 2008 filed Miscellaneous Case No.17 of 2003, both under the provisions of Order XXI Rule 97 of the Code of Civil Procedure, claiming that although the suit was for Plot No.117, but delivery of possession was sought to be effected on Plot No.104, portions of which had been purchased by both the sets of petitioners from the deceased original defendant no.1 Rakesh Kumar Sinha, vide registered sale deeds dated 29.04.1986 and 05.12.1987 as well as dated 20.07.1989 and 04.09.1989, whereafter they had constructed their house and had resisted delivery of possession which could not be effected by the Nazir on 19.07.2003 due to their obstruction, but a wrong report of delivery of possession was submitted by the Nazir. - 4 - 8. It further transpires that when notices of the aforesaid Miscellaneous Case No.19 of 2003 and Miscellaneous Case No.17 of 2003 were issued to the plaintiff-opposite party no.1 he filed a petition dated 14.08.2003 in the Executing Court praying that Plot No.117 be read as Plot No.104. However, since the said petition was not in accordance with the provisions of law, it was rejected by the Executing Court vide order dated 04.02.2005 giving liberty to the plaintiff to take suitable steps according to the provisions of law. In view of the aforesaid facts, the plaintiff-decree holder filed separate petitions for amendment of the plaint, amendment of the preliminary decree, amendment of the final decree and amendment of the execution petition only with respect to suit plot for changing its number from 117 to 104. 9. On the said petitions, the learned court below appointed a Pleader Commissioner to make inquiries and report, whereafter the Pleader Commissioner made inquiries, prepared his field book dated 17.07.2005 and submitted his report dated 05.08.2005 before the learned court below with the findings that the delivery of possession which was effected was on Plot No.104 and not on Plot No.117 and that the subject matter of the dispute was Plot No.104 and not Plot No.117. The said report of the Pleader Commissioner was confirmed by the learned court below vide its order dated 29.08.2005 and the execution case was accordingly disposed of. However, a petition for review of the said order dated 29.08.2005 was filed by the plaintiff-decree holder stating that unless amendment petitions were allowed, the Executing Court cannot dispose of the matter. In the said circumstances, the Executing Court considered the entire matter afresh giving full opportunity to all the parties concerned to place their respective claims and after considering the matter in detail allowed all the aforesaid amendment petitions by its impugned order dated 29.05.2008. 10. The said order of the learned court below dated 29.05.2008 by which all the amendment petitions of the plaintiff-decree holder-opposite party no.1 were allowed, had been challenged by both the sets of intervenors by filing - 5 - one civil revision each. In the said circumstances, when at the time of hearing of the said civil revisions the learned counsel for the petitioners were confronted by the principle of law that if several petitions are disposed of by one order and any one is aggrieved by all the parts of the said order, he has to file separate civil revisions against the disposal of each of the petition by the impugned order and one civil revision against the order passed on all the petitions was not maintainable, learned counsel for the petitioners in both the civil revisions submitted that they are confining both the civil revisions to only that part of the impugned order by which the learned court below allowed the petition of the plaintiff-decree holder for amendment of his plaint only. The said prayer is allowed and hence both the said civil revisions continue only against that part of the impugned order by which the amendment of the plaint was allowed. Thus, the other parts of the impugned order, by which the petitions for amendment of preliminary decree, final decree and execution petition were allowed are not in issue in these civil revisions and remain unchallenged. 11. Learned counsel for the petitioners in both the civil revisions claimed that although they purchased portions of Plot No.104 from defendant no.1 during the pendency of the title suit in the years 1986, 1987 and 1989, they were not impleaded in the said partition suit bearing P.S.No.154 of 1986 or Execution Case No.26 of 1999 although they were necessary parties as their right was going to be affected and hence the suit itself was non-est and fraud was played not only upon the petitioners, but also upon the learned court below and hence the petitioners were not bound by the judgment and decree, either preliminary or final, passed in the suit, especially when the malafide of the plaintiff and the surviving defendants is clear. In this regard, learned counsel for the petitioners relied upon a decision of the Hon’ble Apex Court in case of S.P.Chengalvaraya Naidu (Dead) by LRs vs. Jagannath (Dead) by LRs and others, reported in 1994 (1) PLJR (SC) 39. - 6 - 12. Learned counsel for the petitioners further submitted in both the cases that the original defendant no.1, who was the father of the plaintiff, had got the suit property by way of partition and hence he was the exclusive owner thereof and the plaintiff could have claimed any share in the said property only after the death of his father leaving behind the suit property, but in the instant case defendant no.1 had already sold the suit property to the petitioners before his death in the year 1990 and hence the claim of the plaintiff was absolutely frivolous. In this connection he relied upon Explanation II of Section 3 of the Transfer of Property Act, 1882 as well as on a decision of Madras High Court in case of The Additional Commissioner of Income Tax Madras- 1. Versus P.L. Karuppan Chettiar, reported in A.I.R. 1979 Madras 1, and also on a decision of the Hon’ble Apex Court in case of Commissioner of Wealth Tax, Kanpur, Versus. Chander Sen etc., reported in A.I.R.1986 Supreme Court 1753. 13. Learned counsel for the petitioners in both the cases also averred that no delivery of possession was ever effected in the execution case as the plaintiff took the Nazir on Plot No.104 and not on the suit Plot No.117 and hence the petitioners threw them out from Plot No.104 which was their purchased land and it was only thereafter that the plaintiff filed his petitions for amendment of the plaint, the preliminary decree, the final decree and the execution petition, but although the executing court had no jurisdiction to amend the plaint or preliminary decree or the final decree, the learned court below by its impugned order allowed all the petitions of the plaintiff. 14. Learned counsel for the petitioners further submitted that the suit was filed by the plaintiff, who was minor in the year 1986, through his maternal grand father, although his parents were alive and there was neither any order of the court appointing the maternal grand father as guardian of the minor plaintiff and hence the suit itself was not maintainable under the provision of Order XXXII of the Code of Civil Procedure as it was filed on behalf of the plaintiff through a - 7 - person who cannot be held to be his guardian under the provisions of Guardian and Wards Act, 1980 or the Hindu Minority and Guardianship Act, 1956. 15. On the other hand, learned counsel for plaintiff-opposite party no.1 in both the civil revisions submitted that petitioners were neither parties to the suit or to the execution case and hence the aforesaid civil revisions filed by them are not maintainable. It was also stated that the petitions of the petitioners filed under Order XXI Rule 97 of the Code of Civil Procedure in the execution case having been rejected by the executing court on merits and having not been challenged by the petitioners, these civil revisions are not maintainable on this ground also. 16. Learned counsel for plaintiff-opposite party no.1 further stated that the petitioners themselves admitted in their miscellaneous case that they were purchasers of portions of the suit properties from original defendant no.1 and hence the petitioners having full knowledge that the property was not of defendant no.1 alone, but was of the joint family including defendant no.1, his wife and children and the petitioners having purchased it during the pendency of the suit, the principles of lis pendens would be applicable. Learned counsel for the plaintiff-opposite party no.1 further averred that Plot No.104 is the only property of the family which had no other property at all and hence it is a simple case of misdiscription of plot number of the property although other details given in the plaint clearly identify it. It was further submitted that this fact has also been considered in detail by the learned court below and had rightly come to the conclusion that, in fact, the plot in suit was Plot No.104 and not Plot No.117. 17. Learned counsel for plaintiff-opposite party no.1 also submitted that the trial court which decided the suit was the learned Subordinate Judge, Patna and the execution case is also pending before the same court and hence the learned court below had full jurisdiction to pass orders on the petitions of the plaintiff-opposite party no.1 for amendments of the plaint, the preliminary decree and the final decree as well as the execution petition. - 8 - 18. Learned counsel for opposite parties no.2 to 4, who were defendants-judgment debtors in the learned court below, appeared in this case and fully supported the contentions of learned counsel for plaintiff-opposite party no.1 in both the civil revisions and averred that the learned court below had rightly allowed the petitions for amendments of the plaint, preliminary decree, final decree and the execution petition which was legal and proper as the family, including original defendant no.1 had no other property except Plot No.104 and, in fact, the suit was filed with respect to the same Plot No.104, but due to oversight and clerical mistake it was mentioned in the plaint as Plot No.117 although other details of the said plot were given correctly. 19. Considering the arguments of learned counsel of all the three sets of parties in both the civil revisions and after perusing the pleadings and materials produced by them, it is quite apparent that the plaintiff Mukesh Kumar Sinha was minor at the time of filing of the plaint in the year 1986 and the said suit was filed against his father and mother, who were defendants no.1 and 2, out of whom, defendant no.1 was contesting the claim of the plaintiff and hence, the plaintiff could not have filed the suit through his parents. Furthermore, Order XXXII Rule 1 of the Code of Civil Procedure is quite clear in that regard as it provides that a suit by a minor shall be instituted in his name by a person who in such suit is his next friend. In the said provision, the natural guardian is not mentioned and in any view of the matter, the natural guardian having interest adverse to the interest of the minor, he cannot legally file a suit on behalf of and in the name of the minor. In these circumstances, there is neither any violation of any law regarding guardianship nor does this court find any illegality in the filing of the suit by the minor- plaintiff through his maternal grand father. 20. From the perusal of the plaint (Annexure-A to the counter affidavit of opposite party no.1), it transpires that the suit was filed only by Mukesh Kumar Sinha who was a minor and it was filed through his maternal grand father who had no concern with the paternal property of the plaintiff and hence there was - 9 - always a chance of misdiscription of the property somewhere, considering which the plaintiff himself in paragraph 7 of the plaint had stated that he being a minor was not aware of the details of the family property and hence he reserves his right to amend the plaint when he comes to know about the details. Furthermore in paragraph 4 of his counter affidavit, the plaintiff-opposite party no.1 had specifically stated that the property in question was the sole property of his family, including his father defendant no.1 and they had no other property. This fact has not been denied by the petitioners in the reply filed by them to the aforesaid counter affidavit. In addition to it the petitioners themselves in paragraph 6 in their miscellaneous petition (Annexure-1 to the civil revision) admitted that they had purchased portions of the suit property from the father of the plaintiff. In the said circumstances, it is quite apparent that this was a simple case of misdiscription of the plot number in the plaint as Plot No.117 although it should have been Plot No.104, although all the other details of the suit property, including the area, the holding number, the circle number, the ward number, the khata number, the tauzi number, the thana number as well as the mohalla, the police station, the road and the town described in paragraph 2 as well as in the schedule of the plaint were correct. 21. Furthermore, the learned court below had taken full care of the matter and before passing any order appointed a Pleader Commissioner to make detailed inquiry and report, whereafter the Pleader Commissioner made on sport verification and prepared a field book on 17.07.2005 and submitted his report on 05.08.2005 after clearly finding that it was a mere case of mistake in the description of the number of the plot as Plot No.117 in the plant although it was not the property of the family, rather Plot no.104 should have been mentioned in the plaint, as it was the property of the family. In the said circumstances it is quite apparent that till the filing of the execution case the plaintiff had no inkling that there was such a mistake in the plaint, hence the learned court below rightly - 10 - confirmed the report of the Pleader Commissioner on 29.08.2005 and the said confirmation has never been challenged by the petitioners. 22. In the aforesaid circumstances the learned court below by its impugned order had rightly come to the conclusion that the property in dispute was Plot no.104 and not Plot No.117. Furthermore in such a glaring case regarding identification of the property, the hands of the court are not fettered, rather if the court fails to discharge its duty with respect thereto, it would be deemed to have failed to exercise the jurisdiction vested in it. Reference may be made to a decision of this court in case of Ram Jiwan Rai and others Vs. Deoki Nandan Rai and others, reported in 2004(3) P.L.J.R 31, as well as two decisions of the Hon’ble Apex Court in case of Pratibha Singh and another vs. Shanti Devi Prasad and another, reported in A.I.R. 2003 Supreme Court 643, and in case of Bhavan Vaja and Ors Vs. Solanki Hanuji Khodaji Mansang and another, reported in A.I.R. 1972 Supreme Court, 1371. 23. So far Explanation II of Section 3 of the Transfer Property Act, 1882 is concerned, it only provides that any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who for the time being in actual possession thereof, but in the instant case, the said provision is not at all applicable because admittedly the suit was filed on 29.04.1986 at 7.30 a.m., as transpires from the affidavit of the plaint (Annexure-A to the counter affidavit), and all the alleged purchases made by the petitioners from original defendant no.1 were made thereafter during the pendency of the suit and the petitioners have nowhere claimed that they were purchasers from defendant no.1 for value without notice of the aforesaid suit. Thus the petitioners got those sale deeds knowing fully well that the suit property was under litigation and hence the principle of lis pendens would be clearly applicable to the facts and circumstances of the case and the petitioners cannot take any advantage thereof. In the said circumstances, neither the case of The Additional Commissioner of Income Tax, Madras-1 - 11 - (Supra), nor the case of Commissioner of Wealth Tax, Kanpur (Supra), nor even the case of S.P.Chengalvaraya Naidu (Supra) relied by the petitioners are applicable to the facts and circumstances of the case. 24. So far the petitions of the petitioners filed in the Executing Court under the provision of Order XXI Rule 97 of the Code of Civil Procedure are concerned, it is quite apparent that those petitions were in the teeth of provision of Order XXI Rule 98 (2) of the Code of Civil Procedure which prohibits a transferee from a party to the suit to take recourse to Order XXI Rule 97 of the Code of Civil Procedure. Furthermore, the said petitions filed by the petitioners having not been allowed by the learned court below, the petitioners have got no ground or locus to challenge the impugned order, especially when the defendants- judgment debtors have specifically stated before this court that they had no objection to the learned court below allowing the amendment petitions of the plaintiff-decree holder. 25. So far the question of right, title, interest and share of the plaintiff in the suit property is concerned the learned trial court has decided the same after considering the pleadings and evidence of the parties and its decree has not been challenged by any one. Furthermore the defendants, who are opposite parties 2-4 in these civil revisions, do not raise any objection, rather they have supported the claim of the plaintiff who is opposite party no.1. Even the petitioners who claim on the basis of alleged purchase from original defendant no.1 (since deceased) during the pendency of the suit had not raised any objection, nor appeared in the suit nor even challenged the decree of the trial court and hence he genuineness of their claim and their alleged deeds have not been tested before any court of law. Thus on that basis the plaintiff cannot be non-suited at this stage. 26. So far the jurisdiction of the learned court below with regard to allowing the petitions for amendments of the plaint, preliminary decree and final decree is concerned, it is apparent from the record that the trial court which decided the suit was the learned Subordinate Judge and the impugned order was - 12 - also passed by the learned Subordinate Judge and hence both