Arun Kumar Jha, J.—Present learned counsel for the petitioners however, no one appears on behalf of the respondents despite service of notice upon the respondents.

2. Heard learned counsel for the petitioners and I intend to dispose of the present petition at the stage of admission itself.

3. The instant petition has been filed on behalf of the petitioners for quashing the order dated 04.03.2017 passed in Title Appeal No. 26 of 2009 by learned Additional District Judge-II, Samastipur whereby and wherein the learned Additional District Judge rejected the petition filed by the petitioners under Order 1 Rule 10 of the Code of Civil Procedure (in short “the Code”).

4. Learned counsel for the petitioner submits that the appellants are respondents before this Court and they filed Title Suit No. 59 of 1996 for declaration of their Title over the suit property which include part of lands bearing Tauzi No. 3968, Khata No. 334(old)/1179(new), Khesra No. 5497 part old/new 8748 measuring 12 kathas 2 dhurs 15 dhurki and also part of land bearing khata no. 1, khesra no. 5379(old)/8803(new) measuring 9 katha 3 dhurs, both situated in Village Kalyanpur Bambaiya, P.S. - Bibhutipur, District Samastipur. After hearing the parties, the Title Suit No. 59 of 1996 was dismissed against the appellants vide order dated 29.11.2008 passed by learned Civil Judge, Senior Division No. II, Rosera, Samastipur. Accordingly, a decree was prepared on 06.12.2008. Thereafter, the appellants/respondents preferred an appeal bearing Title Appeal No. 26 of 2009 before the learned Additional District Judge, Samastipur. During the pendency of the said Title Appeal, the defendant in the title suit, Ram Nandan Poddar executed a registered deed of Will in favour of petitioners on 18.08.2009 in respect of the aforementioned part of the suit land and only that part was subject matter of appeal. Ram Nandan Poddar died issueless on 05.07.2010 and thereafter the petitioners on the basis of the registered Will came in peaceful possession of the land in question. The petitioners after coming to know about pendency of the appeal on 21.09.2016, obtained the relevant documents and filed a petition dated 23.09.2016 under Order 1 Rule 10 read with Section 151 of the Code praying therein that petitioners might be impleaded as parties in title appeal as they are necessary parties and their interest would be affected with the outcome of the said appeal. Thereafter, the appellants/respondents filed a rejoinder on 22.10.2016 to the petition dated 23.09.2016 opposing the same on the ground that late Ram Nandan Poddar has not been contesting the appeal and the Will dated 18.08.2009 has not been probated and the petitioners have no right to be substituted in his place. The learned Additional District Judge-II, Samastipur after hearing the parties, vide order dated 04.03.2017 rejected the petition filed by the petitioners and the said order is under challenge in this Court.

5. Learned counsel for the petitioners submits that the impugned order is illegal, improper and arbitrary. The learned 1st Appellate Court failed to appreciate that petitioners have got interest in the part of the suit property which is also subject matter of the appeal by way of registered Will executed by late Rama Nandan Poddar. The learned trial court did not consider this fact as well that petitioners are in possession of the part of the suit property without any hindrance. Learned counsel further submits that the petition of impleadment was rejected mainly on the ground that petitioners have sought impleadment on the basis of Will which is an unprobated Will and such document has no legal value. Learned trial court also did not take into consideration the fact that petitioners are still in possession of the part of the suit property. On these grounds, the impugned order is arbitrary and shows non-application of judicial mind. Learned counsel referred to the decision of the Calcutta High Court in the case of Ajit Kumar Ha