(1.) THIS is an application under Article 227 of the Constitution of India preferred against Order No. 9 dated July 24, 2006 passed by Mr. S.A. Ansari, learned Single Judge (Junior Division) at jalpaiguri in Title Suit No. 148/2006.

(2.) BRIEFLY, petitioners case is that he brought Title Suit No. 148 of 2006 against opposite party Nos. 2 and 3 as defendant Nos. 1 and 2 and opposite party Nos. 4 to 12 as proforma defendant Nos. 3 to 11, for declaration of tile, perpetual injunction and consequential reliefs. On June 20,2006, the petitioner jointly with opposite party Nos. 2 and 3 (proforma defendants there) filed an application for compromise of the suit under Order 23 Rule 3 of the Code of civil Procedure for passing a compromise decree. On the same day, the petitioner also filed another application under order 6 Rule 17 of the Code of civil Procedure for amendment of the plaint and on the other hand, the proforma defendant Nos. 3 to 12 also filed another application under Order 1 rule 10 (2) of the Code of Civil Procedure for their transposition to the category of co-plaintiffs. Subsequently, on July 14, 2006, the present opposite party no. 1, Shri Sudama Majhi filed an application under Order 1 Rule 10 (2) of the Code of Civil Procedure for adding him as a defendant in that suit. The petitioner and the proforma opposite party Nos. 4 to 12 filed written objection against that application of Sri Sudama Majhi. Ultimately, the learned Civil judge (Junior Division) at Jalpaiguri passed order No. 9 dated July 24, 2006 allowing the said application of Sri Sudama Majhi adding him as a defendant together with a direction to serve amended copies of summons and plaint to the said added defendant and also the learned Trial Judge rejected the application of proforma defendant nos. 3 to 11 (opposite party Nos. 4 to 12) for their transposition as plaintiffs.

(3.) THE said Order No. 9 dated July 24, 2006 is under challenge in the present revisional application as the exercise of jurisdiction not vested on the learned Trial Judge and claimed that a miscarriage of justice has been done by adding present opposite party No.1 as a defendant in that suit though he is neither a necessary nor proper party to the suit.

(4.) MR. Sabyasachi Bhattacharya, representing the petitioner, submitted that opposite party No. 1 cannot be called a necessary party in the suit concerned which was filed for declaration of title by the present petitioner against opposite party Nos. 2 and 3 in the suit concerned for declaration of his title together with proforma opposite party Nps. 4 to 12 and the present opposite party No. 1 had no title over the suit property in any capacity though he has claimed that he held an agreement to sale with the petitioner and others. According to Mr. Bhattacharya, the present opposite party No. 1 has no cause of action against the claim of the petitioner for declaration of his title along with opposite party Nos. 4 to 12 in the suit property concerned and that an agreement to sale is not sufficient for his claim to be impleaded as a party in the suit filed by the present petitioner against opposite party nos. 2 and 3. It is claimed that opposite party no. 1 is neither a necessary party nor a proper party and for that reason he is not in a position to claim any right of impleadment as per provision of Order 1 Rule 10 (2) of the Code of Civil Procedure, and he submitted that at best, the present opposite party no. 1 can bring a suit for specific performance against the petitioner if there had been any such agreement to sale though the petitioner denies of any such existence.

(5.) MR. Jiban Ratan Chatterjee, learned Senior Counsel for the opposite party No. 1, submitted that the suit filed by the petitioner before the learned trial Judge is nothing but a suit in camouflage for creating title of opposite party Nos. 2 and 3 (defendant Nos. 1 and 2 there)by way of a compromise decree though the opposite party Nos. 2 and 3 have go