CRP 401/2010 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (CAV) The instant revision petition is directed against the order dated 28.07.2010 pas sed in Misc. (J) case No. 180 of 2008 arising out of Title Suit No. 161 of 2007 by the learned Munsiff No.1, Cachar, Silchar, whereby and whereunder the learned trial Court allowed the opposite parties (herein) to be impleaded as 3rd party defendants in the suit in exercise of power under Order I Rule 10 (2) of the Cod e of Civil Procedure (hereinafter referred to as ’the Code’). 2. The subject matter of revision petition in a nutshell is summarized here inbelow- The petitioner as plaintiff has instituted a suit being Title Suit No. 161 of 2007 in the court of Munsiff No.1, Cachar at Silchar seeking a decree of part ition against the principal defendants (who are arrayed as pro forma defendant Nos.9 to 13 herein) in respect of land measuring 2B 8 K 12 Ch 18 Gondas being h is share for partition as described in the schedule of the plaint and for a prel iminary decree and thereafter the matter be referred to the Collector for prep aration of allotment and a final decree be passed therefor. 3. The Schedule of the land as described in the plaint is quoted hereafter which has relevancy in deciding the controversy raised between the parties- Schedule District- Cachar, Ph. Barakpar, Mouja; Silchar town, 2nd R.S. Patta No. 1265 com prising an area of 13 B 10 K 5 Ch of land in which the plaintiff’s share for p artition and allotment is of 2 B 8 K 12 Ch 18 Gondas of land only. 4. While the suit was pending before the learned trial Court, an applicatio n under Order I Rule 10(2) of the Code has been filed by eight (8) petitioners b eing registered as Misc. (J) Case No. 180/2008 arising out of T.S. No. 161/07 c ontending inter alia that though the plaintiff sought a decree for partition in the suit being his share against the defendants in the suit he has no right, title and interest and/or possession over any portion of the suit patta land c omprising of 13 Bighas 10 Kathas 5 chataks as their predecessor-in-interest Fa tebi Bibi purchased the entire land of the suit patta by deed of purchase vide N o.397 dated 04.02.1929 registered on 13.02.1929 being 2nd R.S. Patta No. 1265 an d accordingly, the name of Fatebi Bibi was mutated and the petitioners of Misc.( J)Case No.180/2008 being the sole successor-in-interest of the said Fatebi Bibi are now in continuous possession over the suit land and accordingly prayed be fore the court to make them as party defendants in order to enable the court ef fectually and completely to adjudicate upon and settle all the questions involve d in the suit. 5. Against the application filed under Order I Rule 10 (2), which was regi stered as Misc. (J) Case No.180/2008, an objection was filed contending inter a lia that the suit property appertains to 13 B 10 K 5 Ch of land of 2nd R.S. Patta No. 1265 was the subject matter of Title Suit No. 85 of 1972 in the cour t of the Assistant District Judge No. 2, Cachar, Silchar along with some other land. The said suit was filed by Mustt. Rihibun Nessa Bibi, wife of late Abdul J alil Mazumdar alongwith her sons and daughters as plaintiffs. In the said suit a ll the co-sharers were made parties but none contested save and except the defen dant No.1, Abdul Oddud Mazumdar and the defendant No. 52, Abdul Rasid Mazumdar. The suit was decreed in favour of the plaintiffs on 23.03.1978. The matter was t aken up in Appeal being Title Appeal No. 7 of 1978 which was culminated in dismi ssal on 12.01.1981. The defendants took up the matter in Second Appeal. The cour t remanded the matter upholding the judgment of the lower court determining the share of the defendant No.1 Abdul Oddud Mazumdar. 6. It has further been averred in the objection petition that the impleadme nt as sought for in the suit are the heirs of Gazanfor Ali Mazumdar whose int erest in the R.S. Patta No. 561 (Renumbered as 2nd R.S. Patta No. 1265) along wi th his father’s other heirs and the heirs of Fatebi Bibi were taken into consid eration in the Title Suit No. 85 of 1972 where a registered deed of partition da ted 02.06.1947 was proved and marked as Ext. 21 which proved that Fatebi Bibi an d her sons interest in the suit dag were not existed and the mutation of names of the petitioners in the impleadment petition are not required to be altered after 40 years and prayed for rejection of the petition. 7. The aforesaid Misc. (J) Case No. 180 of 2008 arising out of Title Suit No. 161 of 2007 came up for consideration on 28.07.2010 before the learned tri al Court. The learned trial Court after perusal of the pleadings of the partie s alongwith the submissions so made considered the following points while allowi ng the impleadment of the petitioners as 3rd party defendants in the suit, viz., a) The judgment of the Title Suit No. 85 of 1972 would show that the suit was fo r declaration of title of the plaintiffs as well as principal defendants in resp ect of land measuring 22 B 15 K 9 Ch 1 Gonda of land appertaining to entire land in R.S. Patta No. 561 whereby there is no decision by which court declared that Fatebi Bibi had no interest in the suit land, more so, when Fatebi Bibi was not arrayed as a party to the suit. Moreover, there is no such finding where the interest of the predecessor of present petitioners were considered and the refore, whether there is any consideration of the court in T.S. No. 85 of 1972 r egarding the interest of the present petitioners or their predecessor is a subst antial question to be decided during the trial holding that the petitioners have interest in the suit patta land and the order dated 28.07.2010 is now under cha llenge before this Court under revisional jurisdiction. 8. Heard Mr. N Choudhury, learned counsel appearing for the petitioner. Als o heard Mr. B Banerjee, learned counsel appearing for the opposite party Nos.1 t o 8. 9. Drawing the attention of the Court, Mr. Choudhury, learned counsel appea ring for the petitioner would contend that the learned Munsiff in the impugned o rder passed under Order I Rule 10 (2) of the Code has not made any observation a s to whether the opposite parties herein are either necessary party or proper pa rty in the pending suit while allowing the petition for impleadment, more so, wh en there was no observation and/or discussion relating to partition deed execute d on 02.06.1947 (vide Ext 21 in TS No.85/1972) whereby and whereunder Fatebi Bib i and/or her predecessor-in-interest had no semblance of right, title and inter est in regard to the suit land where partition amongst the petitioner-plaintiff and pro forma opposite parties Nos. 9 to 13 were sought which require interferen ce under revisional jurisdiction. 10. Mr. Choudhury, learned counsel has further submitted that the decree obt ained in Title Suit No. 85 of 1972 cannot be set at naught wherein the partiti on has been sought in Title Suit No. 161 of 2007 amongst the co-sharers of the suit land and if the opposite parties are allowed to implead in the suit it wo uld change the nature and character of the suit which would mean amendment of t he plaint incorporating the right, title and interest in respect of the suit la nd though there was a valid decree passed in his favour which require interfer ence under revisional jurisdiction. 11. Countering the attack, Mr. Banerjee, learned counsel appearing for the o pposite party Nos.1 to 8 has drawn the attention of the Court to the revision pe tition being Criminal Revision No. 364 of 2009, record of which has been called for, wherein the opposite party Nos.9, 11 and 12 initiated a proceeding under Se ction 144 of the Criminal Procedure Code against the opposite parties restrainin g them to enter into the disputed land before the Sub-Divisional Magistrate (Sad ar), Silchar which was converted into Section 145 of the Code being case No. 49 9 of 2007. In the meantime, the opposite party No. 10, Md. Abdul Wadud Mazumdar in Title Suit No.161 of 2007 appeared before the Magistrate for inclusion of his name as 3rd party defendant which was allowed on 21.01.2008. During pendency of the proceeding, the disputed land over which the parties harvested, was put on auction and was also sold on auction, sale proceed of which was kept in the cust ody of the court. The court vide order dated 3.12.2007 converted the proceedings to one under Section 145 of the Code and attached the disputed land under Secti on 146 (1) of the Code. Ultimately, the sale proceed was handed over to the 2nd party as directed by the court vide order dated 4.11.2008. Against which a revis ion petition was filed and the learned Additional Sessions Judge (FTC) allowed t he petition being Criminal Revision No. 6 of 2009 on 16.07.2009. Aggrieved by th e said order, the 2nd party came to this Court by filing a revision petition bei ng Crl Revn. (P) No.364/09. This Court vide order dated 15.6.2010 remanded the e ntire matter to the learned Sub-Divisional Judicial Magistrate, Cachar, Silchar to decide as to which of the parties is entitled to get the auction money realiz ed from selling the paddy grown over the disputed land and to pass appropriate o rder in this respect. In the schedule of lands wherefrom the opposite parties have been sought to be r estrained reads as follows: Schedule of land PH. Barakpar, Mouza- Silchar town, 2nd R.S. Madhurbond, Part II, Patta No. 1265 , Dag No. 9393/9398/9404/9405/9406. Totaling land-13 Bighas 10 kathas and 8 Ch. Mr. Banerjee thus contended that the partition as sought for in T.S. No. 161 of 2007 and the Schedule of land in criminal case No. 499 of 2007 before the learne d Sub-Divisional Magistrate, Cachar wherein the opposite parties, the power of a ttorney holders are necessary parties to enable the court to effectually and co mpletely to adjudicate upon and settle all the questions involved in the suit be added whose presence before the court are necessary, therefore, impugned order is not required to be interfered with as held by the learned trial Court. 12. Mr. Banerjee has further drawn the attention of this Court to another Title Suit No. 140 of 2010 pending in the court of Munsiff No.1, Cachar, Silch ar against the opposite parties as defendant Nos.6 to 13 by the petitioner as plaintiffs seeking declaration that the mutation of names of defendant Nos. 6 to 13 be declared as unauthorized, illegal and void. Mr. Banerjee has also place d before this Court copy of the plaint of TS No.140/2010 wherein the schedule of land reads as follows: District Cachar, Ph. Barakpar, Mouja: Silchar Town 2nd R.S. Patta No. 1265 where in the mutation of the names of defendant Nos. 6 to 13 appears by mutation dated 16.10.2007 by order of defendant Nos. 2 and 3. Therefore, Mr. Banerjee would urge that the schedule of land in T.S. No. 161/07 , Criminal Case No. 499/07 and Title Suit No. 140/2010 being the same, the opp osite parties are necessary parties in the suit as held by the learned court b elow which do not require to be interfered with under revisional jurisdiction. 13. Mr. Banerjee has further contended that a reading of Ext 21 referred to in Title Suit No. 85/72 would disclose that the land in question in Schedule of the plaint in Title Suit No. 161 of 2007 were sold out to Fatebi Bibi, the pre decessor-in-interest of the opposite parties by deed of purchase vide No.397 da ted 04.02.1929 registered on 13.02.1929. Therefore submitted that partition deed dated 02.06.1947 vide Ext 21 as claimed by the petitioner is subsequent to deed of purchase dated 04.02.1929 and hence, no illegality has been committed by the learned court in impleading the opposite parties in Title Suit No. 161 of 2007 requiring interference in exercise of power under Article 227 of the Constitutio n of India. 14. Heard the arguments advanced by the learned counsel appearing for the pa rties. Also perused the materials on record including Criminal Revision (P) No. 364 of 2009 alongwith T.S. No. 140 of 2010. The Schedule of land in all the thre e cases are same though partition amongst the co-sharers has been sought for in Title Suit No. 161 of 2007 only. Order I Rule 10(2) of the Code empowers the Cou rt at any stage of the proceedings, either upon or without the application of ei ther party, that the name of the parties who ought to have joined, whether as pl aintiff or defendant, or whose presence before the Court may be necessary in ord er to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 15. Perusal of the materials on record as well as the impugned order would r eveal that, the learned trial Court has rightly exercised the power under Order I Rule 10(2) of the Code in allowing the opposite parties to be impleaded as 3rd Party defendants in the suit in order to enable the court to determine and adju dicate all the questions involved in the suit. 16. Moreover, the schedule of the land appertains to R.S. Patta No. 1265 is involved in Title Suit No. 161/07, Criminal Case No.499/07 and Title Suit No. 14 0/2010 wherein the opposite parties were made parties save and except T.S. No. 1 61 of 2007 and there is interest involved in the suit which require the court to adjudicate the issues and accordingly, opposite parties have rightly been added as 3rd Party defendants. 17. In view of the above discussions, this Court is not inclined to interfe re with the order dated 28.7.2010 passed by the learned Munsiff No.1, Cachar, S ilchar in Misc. (J) Case No. 180 of 2008 arising out of Title Suit No. 161 of 2 007. 18. The revision petition is devoid of any merit and accordingly, the same i s dismissed. The parties are left to bear their own costs.