FIRST APPEAL No.132 OF 1978 Against the judgment dated 13.12.1977 and the decree following thereupon signed on 4.1.1978 by Sri B.B. Prasad, Sub Judge, Biharsarif in Title Suit No. 151 of 1971. SMT. PANO DEVI & ORS. ………… Plaintiffs & Defendants/Appellants Versus ISHWAR MAHTO & ORS .……….. Interveners-Defendants/ Transposed Plaintiffs, Respondents ******** For the appellants : Mr. Umesh Lal Verma, Advocate For the contesting respondents : Mr. Alok Kumar Sinha No. 1 Mr. Bhola Kumar. Advocates Dated : 3rd day of November, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. This first appeal has been filed against the judgment dated 13.12.1977 and the decree signed on 4.1.1978 by Sri B.B. Prasad, the learned Sub Judge, Biharsarif in Title Suit No. 151 of 1971 decreeing ex parte the interveners-defendants transposed as plaintiffs’ suit for partition. 2. It appears that the original plaintiff, who is one of the appellants in this appeal, filed the said partition suit against the original defendants, some of them are appellants in this appeal. The defendants appeared and thereafter a compromise application was filed jointly by the plaintiffs and the defendants. The interveners filed Mungeshwar Sahoo, J. -2- an application for being added as party in the partition suit which was rejected by the trial court. Against the said rejection order revision application was field before this Court which was allowed. Thereafter the interveners filed an application for being transposed as plaintiffs before the trial court which was allowed and then the suit has been decreed ex parte. 3. The original plaintiff Binda Devi filed the aforesaid partition suit alleging that one Umrao Mahto had five sons namely Ganpat Mahto, Ram Saran Mahto, Lal Chandra Mahto, Fakira Mahto and Somar Mahto. Out of them Somar Mahto died issueless in the state of jointness. Fakira Mahto separated himself from the other three brothers after taking his 1/4th share. The other three brothers remained joint. The further case is that Ganpat Mahto died in 1932 before coming into force of the Hindu Woman Right to Property Act, 1937 and, therefore, the remaining two brothers namely Ram Saran and Lal Chandra only remained in possession of the suit property. The second son Ram Saran Mahto had three sons namely Damodar Prasad, Ambika Prasad and Kapil Deo Prasad. The original plaintiff Binda Devi is the daughter of Ambika Prasad. On the death of Ganpat Mahto his share devolved on the heirs of other two brothers by law of survivorship. His widow was entitled only for maintenance. His wife also died 26-27 years ago. The defendants represent the branch of Lal Chandra Mahto. 4. It appears that the interveners Ishwar Mahto, Rameshwar Mahto, Rajendra Mahto and Siddheshwar Mahto appeared and filed an application under Order 1 Rule 10 C.P.C. for impleading them as party defendants in the said partition suit. According to the interveners, Ganpat Mahto died in 1942 leaving behind his widow Masumat Somari and a daughter Masumat Sukhiya. After death of Ganpat Mahto his -3- widow inherited the interest of Ganpat Mahto in the property. She died in 1949 leaving behind her daughter Sukhiya Devi and Sukhiya’s sons are the interveners. On the death of Somari her daughter Sukhiya came in joint possession with plaintiffs and defendants and she died in 1973 and thereafter the interveners are in joint possession and therefore, they are necessary party. 5. The plaintiffs as well as defendants filed separate rejoinders to the applications under Order 1 Rule 10 C.P.C. They made out a case that Ganpat Mahto died in the year 1934-35 issueless leaving behind only widow Masumat Somari who died in 1944-45. 6. After hearing the parties by terms of the order dated 25.3.1975 application was allowed and the interveners were added as party defendants. 7. It appears that in the meantime, the plaintiffs and defendants filed a compromise application and prayed before the court below for disposing of the suit in terms of the compromise. When the interveners’ application was allowed the parties filed Civil Revision No. 635 of 1975 challenging the order dated 25.3.1975. The said revision application was dismissed by the High Court. 8. It appears that thereafter the interveners filed an application before the court below for being transposed as co-plaintiffs. The defendants and the plaintiffs did not appear in the court below. By terms of order dated 1.12.1977 the interveners were transposed as co-plaintiffs. Thereafter on 9.12.1977 one witness was examined and thereafter on 13.12.1977 the impugned judgment/order was passed decreeing the co-plaintiffs’ partition suit for 1/3rd share of the suit property. -4- 9. The learned counsel for the appellants submitted that the learned court below hastily without giving notice to the original plaintiff and the defendants transposed the interveners as co-plaintiffs and got the witness examined and decreed the suit. The learned counsel further submitted that according to the original plaintiff Binda devi and the defendant Ganpat Mahto died issueless. The interveners claimed that they are the sons of Ganpat Mahto’s daughter. In such circumstances, the parentage of Sukhiya Devi was in issue. According to the original plaintiff Binda Devi, Ganpat Mahto died issueless, whereas according to the interveners Ganpat had a daughter Sukhiya Devi and they are sons of Sukhiya Devi. The learned counsel submitted that there are conflicting claims between the plaintiffs themselves i.e. the original plaintiff Binda Devi and the interveners- co-plaintiffs but the interveners were only added as co-plaintiffs and no amendments were made in the original plaint. Even Binda Devi who was the original plaintiff was not transposed as defendant and the learned court below has decreed the suit of the co-plaintiffs. The learned counsel further submitted that there was no pleading in support of the claim of the co-plaintiffs in the original plaint. Even there is also no order that the written statement filed by the interveners is treated as their plaint. Therefore, the impugned judgment/order is liable to be set aside. 10. The learned counsel for the appellants next submitted that in the present situation when the question about the relationship of Ganpat with Masumat Sukhiya was in dispute the learned court below should have considered the evidence of PW 1 according to provisions of Section 50/60 of the Indian Evidence Act. The learned court below without discussion the evidence of PW, as to whether his evidence about the relations of Ganpat and Masumat Sukhiya is admissible, has accepted his evidence only on the ground that there is no contrary -5- evidence and the suit is proceeding ex parte. On these above grounds, the learned counsel for the appellants submitted that the impugned judgment and decree are liable to be set aside and the matter should be remanded to the court below for a fresh decision according to law. 11. On the other hand, the learned counsel appearing on behalf of the interveners-respondents submitted that there is no illegality in the impugned judgment and order. The learned court below has rightly allowed the intervention application and when the parties compromised the learned court has rightly transposed the interveners as co-plaintiffs and therefore, the written statement of the interveners was treated as plaint and on the basis of the evidence in support of the said plaint the learned court below has rightly decreed the plaintiffs’ suit finding that Masumat Sukhiya was not the daughter of the Ganpat Mahto. On these grounds, the learned counsel submitted that the first appeal is liable to be dismissed. 12. From perusal of the lower court record, it appears that the interveners were transposed as co-plaintiff but the pleading remained the same. No amendments were made. There was no prayer on behalf of the interveners either to amend the plaint or to treat their written statement as their plaint and there is also no order of the Court if their written statement is treated as plaint then court fee is payable. Now therefore, there is conflicting interest between the original plaintiff and the subsequently transposed interveners co-plaintiffs. In the original plaint, there is no case that Ganpat Mahto died leaving behind his daughter Sukhiya Devi and the interveners are her sons. From perusal of the impugned judgment/order, it appears that the learned court below has accepted the evidence of PW 1 on the ground that it is ex parte without discussing as to whether his evidence is admissible in view of section 50 of the Indian Evidence Act particularly, when there -6- is no dispute between the parties that Ganpat died issueless whereas according to the interveners Ganpat died leaving behind a daughter Masumat Sukhiya. 13. It further appears that while transposing the interveners as plaintiffs no order was passed by the court below regarding the party position of original plaintiff. When the plaintiff was not taking any interest in pursuing the appeal she should have been transposed as defendants because in this case the claim of original plaintiff and the claim of interveners were in direct conflict and they could not stand together. 14. Considering the above facts and circumstances, in my opinion the impugned order and decree are unsustainable in the eye of law. Accordingly the impugned order and decree are set aside and the suit is remanded to the court below for a fresh decision according to law. Any opinion made in this judgment about the merit of the case shall not prejudice any party in the proceedings before the court below. It may be mentioned here that both the parties are present before this court and therefore, no further notice be issued to them. Both the parties are directed to appear before the court below on the 6th December 2010 when the court will inform them about the next date for proceeding ahead. 15. In the result, this first appeal is allowed and the matter is remanded to the court below to proceed ahead according to law as indicated above. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 3rd November, 2010 S.S./N.A.F.R.