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2010 Supreme(Pat) 2425
PATNA HIGH COURT
Mungeshwar Sahoo, J.
Pano Devi
Versus
Ishwar Mahto
First Appeal No. 132 of 1978
Decided On : NOVEMBER 03, 2010
The legal principle established is that transposition of parties and acceptance of evidence without proper discussion on admissibility must be in accordance with the law.
Headnote:
Partition Suit - Transposition of Interveners - Order 1 Rule 10 Code of Civil Procedure - Section 50/60 of the Indian Evidence Act
Fact of the Case:
The appeal was filed against the decree in a partition suit where interveners were transposed as co-Plaintiffs and the suit was decreed ex parte. The original Plaintiff and Defendants challenged the transposition and decree, citing conflicting claims and lack of pleading in support of the interveners' claim.
Finding of the Court:
The court found that the transposition of interveners as co-Plaintiffs without amending the pleading and the acceptance of evidence without discussion on admissibility were unsustainable in the eye of law.
Issues: Conflicting claims between original Plaintiff and interveners, admissibility of evidence, transposition of parties
Ratio Decidendi: The court held that the transposition of interveners without amending the pleading and acceptance of evidence without discussion on admissibility were unsustainable.
Final Decision: The impugned order and decree were set aside, and the suit was remanded to the court below for a fresh decision according to law.
Mungeshwar Sahoo, J.
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 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 Code of Civil Procedure 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 widow inherited the interest of Ganpat Mahto in the property. She died in 1949 leaving behind her daughter Sukhiya Devi and Sukhiyas 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 Code of Code of Civil Procedure 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 e
