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1984 Supreme(Pat) 341
PATNA HIGH COURT
Chaudhary Sia Saran Sinha, J.
Bharosi Sao
Versus
Manik Chand Gupta
Appeal from Original Decree No. 264 of 1976 ;
Decided On : SEPTEMBER 18, 1984
The Court can allow the addition of a co-plaintiff in a suit where the entire interest in the subject matter of the suit has been transferred to the co-plaintiff and there is no material to show that the defendant challenged the order of the trial Court allowing the addition of the co-plaintiff.
Headnote:
CIVIL PROCEDURE CODE - Order XXII Rule 9(2) and Order XXII Rule 10(1) - Addition of co-plaintiff - Effect of abatement or dismissal - Assignment, creation or devolution of any interest during the pendency of a suit - Suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
Fact of the Case:
Plaintiff Ful Kuer instituted Title Suit No.25 of 1973 for declaration of subsisting title, confirmation of possession and, in the alternative, for recovery of possession over plot No.161 Khata No.192 of mauza Bara Gandhar having an area of 1.61 acres. Ful Kuer again fell in necessity of money and by a registered sale deed dated 30-1-1974 (Exhibit-1/A also marked as Exhibit-X for identification), she sold the property of plot No. 161, abovementioned, to one Manik Chand Gupta for a consideration of Rs.10,000/-. On 29-5-1974, Manik Chand Gupta filed a petition for being added as a co-plaintiff. This prayer was objected to by the defendant. By order No.21 dated 15-7-1974 and for the reasons stated therein, the trial Court granted the permission for addition of Manik Chand Gupta as a co-plaintiff and he was so added.
Finding of the Court:
The Court held that the trial Court did not act illegally in allowing Manik Chand Gupta to be added as a co-plaintiff in the facts and circumstances of this case. The Court further held that the plaintiff has miserably failed to establish the story of fraud. Plot No. 161 having been already transferred under Exhibit-1 plaintiff Manik Chand Gupta cannot but be said to have purchased only a bag of wind under the sale deed Exhibit-1/A and as such he is not entitled to any relief claimed by him.
Issues: 1. Whether the trial Court acted illegally in allowing Manik Chand Gupta to be added as a co-plaintiff? 2. Whether the finding of the trial Court that the sale deed Exhibit-1 was void so far as it related to the lands of plot No. 161, was unsustainable in law?
Ratio Decidendi: 1. Order XXII Rule 9(2) and Order XXII Rule 10(1) of the Code of Civil Procedure (C.P.C.) deal with the effect of abatement or dismissal and the assignment, creation or devolution of any interest during the pendency of a suit, respectively. These provisions allow for the addition of a co-plaintiff in certain circumstances. 2. In the present case, the entire interest in the subject matter of the suit, namely, plot No. 161 was transferred to Manik Chand Gupta, co-plaintiff, under Exhibit-1/A. He applied for addition as a co-plaintiff. The trial Court allowed the prayer in spite of objection by the defendant. There is no material to show that the defendant challenged this order of the trial Court at any stage before any higher Court. It cannot be said in the facts and circumstances of this case, that the order of the trial Court allowing Manik Chand Gupta to be added as a co-plaintiff has affected the decision of the case so as to attract the operation of sec. 105 C.P.C. 3. The Court further held that the plaintiff has miserably failed to establish the story of fraud. Plot No. 161 having been already transferred under Exhibit-1 plaintiff Manik Chand Gupta cannot but be said to have purchased only a bag of wind under the sale deed Exhibit-1/A and as such he is not entitled to any relief claimed by him.
Final Decision: The appeal is allowed and the judgment and decree of the trial Court, declaring the title of plaintiff Manik Chand Gupta over the suit land and confirming his possession thereon are set aside and the plaintiffs suit is dismissed. In the facts and circumstances of this case, however, there shall be no order for costs and the parties are directed to bear their own costs both of this First Appeal as also of the trial Court.
1. Defendant No.1 Bharosi Sao is the appellant in this First Appeal which is directed against the judgment dated 22-3-1976 of the learned Subordinate Judge, Second Court, Gaya, passed in Title Suit No.25 of 1973, by which he decreed the suit filed by the plaintiff for declaration of subsisting title, confirmation of possession and, in the alternative, for recovery of possession over plot No.161 Khata No.192 of mauza Bara Gandhar having an area of 1.61 acres.
2. Facts, relevant for disposal of the limited contentions raised before this Court, may be stated as follows :-
One Mosst. Ful Kuer, a widow, as a plaintiff, instituted Title Suit No.25 of 1973 on 3-2-1973 against appellant Bharosi Sao for the declaration, abovementioned. The plaintiff, besides the plot in suit, abovementioned, also owned and possessed plot No.144 of Khata No.69 of the same mauza, bearing an area of 50 decimals. There was a negotiation at her instance for sale of plot No.144 with the appellant through the intervention of one Ramsaran Sao, the plaintiff Ful Kuer being a pardanasin lady. The negotiation materialised for sale of plot No. 144 for a consideration of Rs.7000.00 and the sale deed Exhibit-1, dated 24-6-1972, was executed by her. It is alleged that the plaintiff Ful Kuer came to know some time in 1973 that in spite of the agreement being only to sell plot No.144, the appellant and Ramsaran, in collusion with one another, surreptitiously, fraudulently and illegally got plot No. 161 also inserted in the said sale deed. She, therefore, filed the instant suit. Ful Kuer again fell in necessity of money and by a registered sale deed dated 30-1-1974 (Exhibit-1/A also marked as Exhibit-X for identification), she sold the property of plot No. 161, abovementioned, to one Manik Chand Gupta for a consideration of Rs.10,000/-. On 29-5-1974, Manik Chand Gupta filed a petition for being added as a co-plaintiff. This prayer was objected to by the defendant. By order No.21 dated 15-7-1974 and for the reasons stated therein, the trial Court granted the permission for addition of Manik Chand Gupta as a co-plaintiff and he was so added. The initial valuation of the suit was Rs.7000.00 but the consideration of the sale deed Exhibit-1/A was Rs.10,000/-. The trial Court, therefore, asked the plaintiff to pay an additional Court fee on the remaining amount of Rs.3000.00 which was paid.
3. Although no paper has been brought on record to show what was the subject matter of Miscellaneous Appeal No.61 of 1974 but it is undisputed that from some order passed in the instant Suit, Miscellaneous Appeal No.61 of 1974 was preferred. Plaintiff Ful Kuer died during the pendency of the instant Miscellaneous Appeal, abovementioned, leaving behind Malti Devi and Rajmani Devi, both wives of Ramchandra Sao. The lower appellate Court, in seisin of Miscellaneous Appeal No.61 of 1974, substituted the names of these two ladies in place of plaintiff Ful Kuer in the said appeal. It is not in dispute that this substitution was made in the Miscellaneous Appeal, abovementioned, within the time allowed by law. On 13-12-1975, Manik Chand Gupta, co-plaintiff, filed a petition in the instant Title Suit stating that the said two heirs of Ful Kuer, abovenamed, did not appear in the suit nor did they care to figure as plaintiff and so they should be transposed as pro forma defendants. By order dated 24-2-1976, this prayer of Manik Chand Gupta was allowed and these two ladies were ordered to be transposed as pro forma defendants. The hearing of the suit then proceeded.
4. The trial Court held that Ful Kuer was a pardanasin lady. Issue No. 4, framed by the trial Court, ran as follows :-
"Is the kewala executed by Mosst. Phool Kuer in favour of Bharosi Sao in respect of the lands in suit vitiated by fraud?"
The finding of the trial Court was that the sale deed Exhibit-1, so far as it related to plot No. 161, was vitiated by fraud and it was void to that extent. On a further finding that Manik Chand
