MUNGESHWAR SAHOO, J.:–Both the first appeals arise out of the common judgment and decree dated 30.06.2012 passed by the learned Subordinate Judge-III, Patna in Title Suit No.234 of 2010. First Appeal No.144 of 2012 has been filed by the intervener defendants whereas First Appeal No.174 of 2012 has been filed by the original defendant M/s Navyug Homes Private Limited.

2. The plaintiffs-respondents have filed the aforesaid Title Suit No.234 of 2010 praying for enforcement of the development agreement dated 29.03.2005 against the appellant of First Appeal No.174 of 2012. It may be mentioned here that the developer defendant, who is appellant in the First Appeal No.174 of 2012 was the sole defendant. The plaintiffs claimed the relief that the developer is liable to deliver possession as per the development agreement, 25% of Schedule II and III properties to the plaintiffs as agreed. It further appears that after institution of the suit the interveners filed application for being added as party defendants whose application was allowed and they were added as party defendants, who are appellants in First Appeal No.144 of 2012.

3. The plaintiffs-respondents alleged that out of 100% of the built up portion, 50% share is of the builder developer whereas 50% belongs to the land owners. The suit property with construction was allotted to the plaintiffs along with the heirs of Jaduvansh Tiwari, Hargovind Tiwari and Abhilakh Tiwari having 20% share each out of 100%. Subsequently there was exchange of shares between the plaintiffs, the heirs of Jaduvansh Tiwari, Hargovind Tiwari and Abhilakh Tiwari with the shares allotted in Kolkata property. The heirs of Jaduvansh gave 10% of their share in exchange to the heirs of Abhilakh and likewise the heirs of Jaduvansh Tiwari gave 10 % share to the heirs of Jagdish Tiwari, i.e. the plaintiff. 20% share of Hargovind Tiwari was also given by him to the heirs of Abhilakh Tiwari in exchange. Thereafter the defendant developer-appellant of First Appeal No.174 of 2012 entered into development agreement with owners of the suit property. After exchange the plaintiffs together have got 25% share out of 50% and the remaining 25% belong to the heirs of Abhilakh Tiwari. The heirs of Hargovind Tiwari and Jaduvansh Tiwari became the confirming party in the development agreement dated 29.03.2005 wherein the plaintiffs with the heirs of Abhilakh Tiwari were the party shown as owners of the property. Thereafter the defendant-builder developer completed the construction pursuant to the said agreement in the name of ‘Sidhi Vinayak Plaza’ within the period prescribed in the agreement but because of price rise the possession of the flats was not given by the developer either to the plaintiffs or to the heirs of Abhilakh Tiwari. Therefore, the plaintiffs filed the suit for enforcement of the said development agreement.

4. The defendant developer filed written statement. The interveners, who were added as party, subsequently also filed written statement. Thereafter an application was filed by the plaintiffs on 14.09.2010 under Order 12 Rule 6 of the Code of Civil Procedure for passing a judgment and decree on admission against defendant developer in favour of the plaintiffs. By the impugned judgment and decree the court below passed the judgment in terms of Order 12 Rule 6 of the Code of Civil Procedure decreeing the plaintiffs-respondents’ suit. Against this judgment and decree passed on admission, both the appeals have been filed.

5. The learned senior counsel Mr. Sukumar Sinha appearing in the First Appeal No.144 of 2012 submitted that the learned court below without applying his judicial mind has decreed plaintiffs’ suit on admission by committing error of record. The interveners-appellants had filed written statement denying the case of the plaintiffs and claiming their share to the extent of 20% and also bringing the fact to the notice of the Court that another title suit filed by them is pending but the court below whi

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