S.J. Mukhopadhaya, A.C.J.

1. Defendant No. 3 petitioner has challenged the order dated 23rd February, 2005 passed in Partition Suit No. 153 of 2002, whereby and whereunder, the learned Sub-Judge-IX, Ranchi, while rejected the petition, filed by defendant No. 3-petitioner under Section 23 of the Hindu Succession Act, 1956 read with Order VIII, Rule 11(d) and Order XIV, Rule 2(B) of the Code of Civil Procedure, has also allowed the petition, filed by the defendant/2nd and 4th respondents under Order I, Rule 10(2) of the Code of Civil Procedure for transposing them as plaintiffs in the suit, in question.

2. Before deciding the issue, as raised in the writ petition, it is necessary to notice the relationship in between the petitioner and respondents. The plaintiff/1st respondent, Juthika Das Gupta, wife of late Paritosh Das Gupta, is the mother of defendant No. 3/petitioner and other defendant/ 2nd, 3nd and 4th respondents.

3. The plaintiff/1st respondent filed Partition Suit No. 153 of 2002 in the Court of learned Sub-Judge, Ranchi, against her one daughter and three sons (all defendants), praying therein, for a decree for partition of the suit properties, claiming 1/5th share in the said suit property and prayed for appointment of Pleader Commissioner to allot separate Takhta to her (plaintiff).

4. The case of the plaintiff/1st respondent is that the suit property is the joint family property of the plaintiff and defendants. According to the plaintiff, her husband (late Paritosh Das Gupta) had purchased the suit property in the year, 1966 in his own name and thereafter, constructed house and other structures over the same. Said Paritosh Das Gupta died on 5th October, 1994, leaving behind the plaintiff as his widow, one daughter and three sons, being his legal heirs and representatives. It has been further alleged that after the death of Paritosh Das Gupta, a dispute arose amongst the parties as defendant No. 3/petitioner is in possession of more than 500 sq. ft., out of the total constructed portion, measuring 1825 sq. ft, over the suit property and the plaintiff is facing difficulty in accommodation and is in acute financial crisis and that the plaintiff is entitled for 1/5th share in the suit property.

5. Defendant No. 3/petitioner filed written statement and contested the suit. He also filed a separate petition under Section 23 of the Hindu Succession Act, 1956 read with Order VIII, Rule 11 (d) and Order XIV, Rule 2(b) of the Code of Civil Procedure on 2nd February, 2005, praying therein, to dismiss the suit, filed by the plaintiff/1 st respondent, on the ground that the suit property is a dwelling house in which the plaintiff, being the Hindu female, can not claim partition, in view of bar contained in Section 23 of the Hindu Succession Act, The plaintiff filed rejoinder to it and alleged that the objection has been preferred by defendant No. 3/petitioner only with a view to delay the suit. 2nd and 4th respondents (two other sons of the plaintiff) also filed their rejoinder to the petition, filed by defendant No. 3/petitioner and prayed to reject the objection.

6. A separate petition under Order I, Rule 10(2) of the Code of Civil Procedure was filed by defendants/2nd and 4th respondents on 16th February, 2005, praying therein, to transpose them as plaintiffs to the suit. Both the aforesaid petitions were taken up together and by the impugned order dated 23rd February, 2005, while the learned Sub-Judge-IX, Ranchi, allowed the petition, preferred by defendants/2nd and 4th respondents under Order I, Rule 10(2) of the Code of Civil Procedure and transposed them as plaintiffs to the suit, rejected the petition, preferred by defendant No. 3/petitioner under Section 23 of file Hindu Succession Act read with Order VIII, Rule 11(d) and Order XIV, Rule 2(b) of the Code of Civil Procedure.

7. Learned counsel for defendant No. 3/petitioner submitted that a suit for partition at the instance of female heir, being not maintainable in view o