Dismissed

Krishna Kumar v. Birendra Kumar Singh and Ors.

Patna HC8 Oct 2012CWJC/22023/2011

Case brief

AI extract

What is this about?

Writ application questioning an order allowing intervention by heirs of a deceased brother in a partition suit was dismissed. The court held the trial court correctly exercised its power to add parties for effective disposal despite the petitioner being dominus litis.

What did the court decide?

Application under Article 227 dismissed; order under appeal placed on CWJC No.22023 of 2011 by court below dated 9.3.2009 not interfered with.

Krishna Kumar Vs Birendra Kumar Singh and Ors. — Partition | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22023 of 2011

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====================================================== Krishna Kumar, son of Hardeo Prasad Yadav, resident of Village- Nipania, P.S.Barhara Kothi, District- Purnia.

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.... Plaintiff .... Petitioner/s

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Versus

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Birendra Kumar Singh, son of Hardeo Prasad Yadav. 2. Tarni Prasad Yadav, son of Hardeo Prasad Yadav. 3. Jai Kumar Josi, son of Hardeo Prasad Yadav. 4. Chandra Shekhar Azad, son of Hardeo Prasad Yadav. 5. Vijay Kumar Pawan, son of Hardeo Prasad Yadav. 6. Hardeo Prasad Yadav, son of late 7. Yashoda Devi, wife of Sri Hardeo Prasad Yadav. 8. Kundan Kunal Kishore, son of Krishna Kumar. 9. Asha Sinha, wife of Krishna Kumar. 10. Rekha Devi, wife of Birendra Kumar Singh. All are residents of Village & P.O. - Nipania, P.S. Barhara Kothi,

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District- Purnia. ….Defendant…Respondents.

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Sada Nand Prasad Yadav, son of late Gundeo Yadav, resident of Village & P.O.- Nipania, P.S.- Barhara Kothi, District- Purnia.

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Mahendra Prasad Yadav, son of late Kunji Lal Yadav, resident of VillageKosikapur Tola Barakh, P.O.- Koshikapur, District- Araria. …..Defendants……Respondents

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Shiv Narayan Yadav (deceased) 13(a) Adya Devi, w/o late Shiv Narayan Yadav.

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(b) Ashok Kumar Yadav, S/o late Shiv Narayan Yadav

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(d) Kiran Kumari, D/o Late Shiv Narayan Yadav.

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All are residents of Village & P.O. - Nipania, P.S. Barhara Kothi, DistrictPurnia.

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(e) Raju Kumari, W/o Deepak Kumar Yadav, D/o late Shiv Narayan Yadav, Village + P.O.-Mirchaibari, P.S.- Janki Nagar, District- Purnea.

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(f) Punam Kumari, W/o Sri Rajeev Ranjan Yadav, D/o late Shiv Naryan Yadav, resident of Binoba Gram, P.O.- Janki Nagar, District- Purnea. .... Intervener-defendants .... Respondent/s

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====================================================== Appearance :

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For the Petitioner/s : Mr. Ranjan Kumar Dubey For the Respondent/s : Mr. Ajay Kumar Singh,

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====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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9 08-10-2012 Heard learned counsel appearing on behalf of the petitioner and Mr. Ajay Kumar Singh, learned counsel appearing on behalf of the respondents.

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This application under Article 227 of the

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Patna High Court CWJC No.22023 of 2011 (9) dt.08-10-2012

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Constitution of India questions the order dated 9.3.2009 passed by the learned Sub-Judge-V, Purnea in Title Suit No.121 of 2005, whereby the prayer of respondent no.13 seeking intervention in the proceedings has been allowed.

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The only issue that is sought to be raised before this Court is that the plaintiff-petitioner being dominus litis and thus the master of the pleadings, he is at liberty to choose the contesting parties and no stranger to the proceedings should be forced upon him.

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The suit in question is a partition suit seeking 1/6^th share in the schedule property. It is the case of the petitioner that the schedule property sought to be partitioned, is the property which devolved upon the respondent no.6 who happens to be the father of the petitioner, as a consequence of the partition of the joint family property, in the year 1977 as also such property which was purchased by respondent no.6 from his own funds. It is thus sought to be canvassed that considering the nature of the schedule property which consists only of the property belonging exclusively to respondent no.6, the respondent nos.13 who happens to be the brother of respondent no.6 and since deceased, does not have any right, title and interest in the property so as to seek intervention in the proceedings.

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Mr. Singh, learned counsel appearing for the legal

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Patna High Court CWJC No.22023 of 2011 (9) dt.08-10-2012

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heirs of the respondent no.13 has contested the position and submitted that respondent no.6 was the Karta of the family. While admitting that a partition took place on 14.1.1977, it is stated that the petitioner having faith and belief in the Karta accepted the position that there was no other property left for partition. It is stated that it is only when the suit in question was filed that it came to the knowledge of the intervenors that certain properties had been purchased by respondent no.6, in the name of the maternal uncle as also in the name of cousin brother in the year 1969 and 1974 i.e. prior to partition. It is stated that these properties in all fairness, ought to have been mentioned in the partition deed which took place on 14.1.1977 but were not mentioned by respondent no.6 and being purchased from the joint family funds it needs to be partitioned amongst the cosharers including the intervenor.

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The learned court below after considering the rival contentions of the parties and considering the nature of the objection raised, has allowed the intervention. Although there is no denial to the submission of learned counsel that the petitioner is the dominus litis of the pleadings and has a legal right to choose the contesting parties in a suit but it is equally true that the learned trial court is the master of the proceedings and is vested with powers under Order I rule 10(2) of the Code of Civil

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Patna High Court CWJC No.22023 of 2011 (9) dt.08-10-2012

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Procedure to allow addition or deletion of parties, for effectual disposal of the matters arising in a suit proceedings. No interference is called for in the order passed by the learned court below.

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This application is dismissed.

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(Jyoti Saran, J)

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SKPathak/-

Krishna Kumar v. Birendra Kumar Singh and Ors.

Case brief

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Krishna Kumar v. Birendra Kumar Singh and Ors.

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