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Sm. Pengu Bala Dasi Vs. Sm. Nirada Bala Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 1080 of 1964
Judge
Reported inAIR1980Cal106,(1981)1CompLJ252(Cal)
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantSm. Pengu Bala Dasi
RespondentSm. Nirada Bala Dasi and ors.
Appellant AdvocateS.C. Mitter and ;S.P. Roychowdhury, Advs.
Respondent AdvocateJ.M. De, Adv.
DispositionAppeal dismissed
Cases ReferredMustafa Badsha v. Madras Motor Insurance Co. Ltd.
Excerpt:
- .....1 was the widow and heir of mukunda. so the plaintiff and defendants 1 and 2 became owners of the suit properties and had been in possession jointly.3. pro forma defendant was made a party, as he was alleged to have manufactured certain papers in respect of the suit properties in collusion with the husband of defendant no. 1.4. the defendant no. 3 contested the suit by asserting his own title to the suit properties.5. the learned trial judge overruled the defence contention and decreed the suit ex parte against defendants nos. 1 and 2 and on contest against pro forma defendant no. 3.6. the learned additional district judge in appeal held that pro forma defendant no. 3 was not a necessary party in a suit for partition simpliciter. though he claimed independent title in the property the.....
Judgment:

Sudhindra Mohan Guha, J.

1. This is an appeal by the plaintiff whose suit for partition was decreed in preliminary form against the defendants including pro forma defendant No. 3 by the learned Subordinate Judge, Asansol. On appeal by pro forma defendant No. 3 the judgment of the trial Court, was modified and the suit against pro forma defendant No. 3 was dismissed.

2. Properties in suit devolved on Keshudiram, Kunja and Mukunda. Plaintiff was the daughter and heir of Keshudiram and defendant No. 2 was the daughter and heir of Kunja Defendant No. 1 was the widow and heir of Mukunda. So the plaintiff and defendants 1 and 2 became owners of the suit properties and had been in possession jointly.

3. Pro forma defendant was made a party, as he was alleged to have manufactured certain papers in respect of the suit properties in collusion with the husband of defendant No. 1.

4. The defendant No. 3 contested the suit by asserting his own title to the suit properties.

5. The learned trial Judge overruled the defence contention and decreed the suit ex parte against defendants Nos. 1 and 2 and on contest against pro forma defendant No. 3.

6. The learned Additional District Judge in appeal held that pro forma defendant No. 3 was not a necessary party in a suit for partition simpliciter. Though he claimed independent title in the property the allegations in the plaint did not warrant a finding against him or his being impleaded as a party. On the allegations as made in the plaint a suit for partition pure and simple could not be converted into a suit for declaration of title against him. The plaint also did not disclose any cause of action against him.

7. It was further observed that the controversy between the parties could very well be regitated in a regular title suit.

8. Mr. S. C. Mitter, the learned Advocate for the appellant contends that the defence taken by the defendant No. 3 had been negatived by the trial Court and the first appellate Court should have maintained that order by holding that he was a proper party, if not a necessary party. It is further contended that the suit for partition and a decree passed thereon was a declaration of the respective shares of the parties owning the disputed property and assertion of such share by defendant No. 3 having been negatived by the trial Court, the learned Appellate Court should have affirmed that finding.

9. In support of his arguments Mr. Mitter refers to the judgment of this Court in the case of Kanailal Das v. Jiban Kanai Das reported in : AIR1977Cal189 . In this case the plaintiff prayed for declaration that his mother Sidheswari was merely a benamdar in respect of suit properties and the deed of 7th October 1967 was not binding on him. Thus claiming one third share he filed the suit for partition of his share by metes and bounds.

10. It is held by their Lordships that in such case the party who would be otherwise interested in the property in case Sidheswari be found to have a share in such property is a necessary party in the partition suit on declaration. Similar is the case when a stranger also claims to be interested in the property in suit on the basis of document impugned by the plaintiff is not binding on him.

11. Next Mr. Mitter cites the decision in the case of Sm. Siba Rani Devi v. Ramendra Nath Mukheriee, reported in (1962) 66 Cal WN 828. It is held therein that a suit which otherwise satisfies the requirements of Clause (va) of Schedule II Article 17 of the Court-fees Act. would not go out of the purview of that clause, merely, because the plaintiff joins as a defendant a stranger, for enforcing, in his presence, the right to the share in the suit properties, claimed by the plaintiff, even if the determination of the questions, whether the suit properties are joint properties and whether the plaintiff has a right to share therein, involves the construction of some documents in respect of the suit properties, or any of them, in which the stranger is or claims to be interested and/or any adjudication that some such document or transaction is void and/or not binding on the plaintiff. Where determination of such question involves cancellation of such document, suit goes out of the purview of the clause.

12. In our opinion the decisions referred by the learned Advocate for the appellant are of little assistance for ascertaining the controversy between the parties. In the case reported in : AIR1977Cal189 it is needless to say that this was not a case of partition simpliciter-- but one for partition on certain declarations. In the case reported in (1962) 66 Cal WN 828 the suit was instituted by A against 9 defendants claiming declaration of the plaintiff's right to one third share in the suit properties and partition. The question was whether the plaintiff could pay a fixed Court fee of Rs. 15/- on a suit for a declaration of the right to a share in the property in the presence of a stranger and for partition and separate possession of the share.

13. No objection could be taken in impleading defendant No. 3 had the plaintiff sought for a declaration that the paper in respect of the suit properties manufactured by defendant No. 3 in collusion with the husband of defendant No. 1 was void and/or not binding on the plaintiff.

14. It is rightly pointed out by Mr. J. M. De, the learned Advocate for the respondent that the olaint does not disclose any cause of action against defendant No. 3. It is also not the case of the plaintiff that defendant No. 3 denied the plaintiff's title or claimed any title or possession in the disputed land in presence of the plaintiff. It is merely stated that defendant No. 3 has no title or possession in the disputed land.

15. In the facts and circumstances of the case we would hold that in the absence of any averment as to assertion of title by a stranger and in the absence of any relief sought against such a stranger, he cannot be considered as a necessary party to the suit.

16. The impropriety in addition of a party lies in the fact that one has been impleaded who has no connection with reliefs claimed in the plaint. Moreover the exercise of power under Order 1 Rule 10 (2) C. P. Code lies within the discretion of the Court.

17. In reply to the arguments, made by the learned Advocate for the respondent reliance has been placed on behalf of the appellant in the case of Paramasivam Pillai v. Adilakshmi Ammal, reported in . It is held therein that the attempt should be always to make parties all persons who may be necessary in order that there might be a final and complete adjudication of the points involved in the suit.

18. There should not be any quarrel as to the principle enunciated. But the question is whether the Court should enter into the controversy as to the title of the defendant No. 3 in the suit property in the absence of any allegation whatsoever in the plaint or in other words not disclosing any cause of action against him.

19. Similarly the decision in the case of Daitari Prasad Naik v. Umakanta Nayak reported in AIR 1971 Orissa 44 is of little help to the appellant. In this case a third person, who in a suit for partition of property, claims title to property adverse to plaintiff is a necessary party and is entitled to be impleaded in the suit.

20. As stated earlier the facts and circumstances of the case under appeal are quite different. There was no averment that defendant No. 3 had ever asserted any title to the suit property in presence of the plaintiff. The allegation is that he might have manufactured certain papers in respect of suit property in collusion with another.

21. According to Mr. Mitter defendant No. 3 was at least a proper party. A person may be considered as a proper party without whose presence the disputes in the suit cannot be completely and effectively adjudicated upon. It has already been found that in this suit for partition the shares of the parties can be found without any reference to defendant No. 3. It is also pointed out that the plaintiff wanted the suit to be tried in presence of defendant No. 3. But the Court would surely not encourage to implead a party who may be called spectator or dummy defendant. The plea of bringing one on record simply to watch proceedings is not proper. Such was the observation by Ramaswami Gounder, J. of the High Court of Madras in the case of Mustafa Badsha v. Madras Motor Insurance Co. Ltd., reported in : AIR1957Mad779 . In our view the Court has ample jurisdiction to strike out a party under Order 1, Rule 10 (2) C. P. Code.

22. Lastly, the parties have no reason to be prejudiced, as the question of title between the parties was left open. It is observed by the learned Appellate Court that controversy between the plaintiff and defendant No. 3 can be reagitated in a future suit properly framed. In these circumstances no interference with the order is called for.

23. In the result, the appeal fails and is dismissed. The judgment and decree of the first Appellate Court be confirmed.

24. Parties to pay and bear their respective costs in this Court.

N.C. Mukherji, J.

I agree.


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