Intervenors cannot be impleaded in a partition suit without a direct interest in the property, as mere genealogy disputes do not justify their inclusion.

JUDGMENT :

(Arun Kumar Jha, J.)

Heard learned counsel for the petitioners as well as learned counsel for the respondents.

2. The instant petition has been filed under Article 227 of the constitution of India for setting aside the order dated 08.08.2018 passed by learned Sub- Judge 1st Kaimur in Title Suit No. 122 of 2012, whereby and whereunder the learned trial court allowed the petition dated 23.07.2018 filed on behalf of the intervenor/respondent nos. 20 to 23 under Order 1 Rule 10 of the Code of Civil Procedure (hereinafter as ‘the Code’).

3. The learned counsel for the petitioners submits that the petitioners are plaintiffs before the learned trial court who have filed Title Suit No. 122 of 2012 against the defendants/ respondent nos. 1 to 5 for partition of the suit land. During pendency of the suit, the plaintiffs filed an amendment petition praying therein to delete some plots from the suit land. Further, during the pendency of the suit, intervenor/ respondents 20 to 23 filed another application under Order 1 Rule 10 of the Code but the same was withdrawn on 25.05.2018. After lapse of two months, the intervenors/respondents filed an application on 23.07.2018 under Order 1 Rule 10 of the Code making a prayer to implead them as party in the suit on the ground that they were necessary parties in the suit. After hearing the parties, the learned trial court allowed both the petitions, i.e., amendment petition and intervenor petition by common order dated 08.08.2018. The said order of impleadment has been challenged before this Court.

4. Learned counsel further submits that while allowing the intervenor’s petition, the learned trial court has completely failed to appreciate the fact that the basis of claim of the intervenor was some property which was, though earlier incorporated in the suit property in the plaint, but it was subsequently deleted from the plaint by the aforementioned amendment application. As the intervenors/respondents have been claiming interest in the property which has been subsequently deleted from the plaint and not form part of the suit property anymore, the intervenors cease to have any interest in the subject matter of the suit. Learned counsel further submits that therefore the intervenors are neither necessary party nor proper party so far as suit of the plaintiffs/petitioners is concerned. The learned trial court allowed the intervention application making the observation that only because of removal of the property, the interest of the intervenors/respondents would not come to an end. It further observed that since there is dispute over the genealogy in which the intervenors are interested party. But the learned trial court failed to appreciate that the plaintiffs/petitioners have no dispute with regard to genealogy nor any reliefs have been sought against the plaintiffs by the intervenors/respondents. For these reasons, the impugned order is not sustainable and it shows the error of jurisdiction on the part of the learned trial court and that part of the impugned order by which the prayer of intervenors/ respondents has been allowed needs to be set aside.

5. The learned counsel appearing on behalf of the intervenors/respondents submits that the intervenors are necessary party and the learned trial court has rightly allowed their prayer for implead them as party. Learned counsel further submits that earlier Title Suit No. 79 of 2002 was filed by the intervenors as plaintiffs which was dismissed by the court of learned Sub Judge and thereafter, the intervenors filed Title Appeal No. 23 of 2009 before the court of learned District Judge and the appeal was allowed in part. Thereafter, the other side came before this Court filed second appeal vide Second Appeal No. 300 of 2011 which is still pending. Part of the suit property of Title Suit No. 122 of 2012 consisted of some of the suit property of Title Suit No. 79 of 2002 on which the intervenors’ right was declared. In Title Suit No. 79 of 2002, the pet