M.Y. Eqbal, J.

1. In this application under Article 227 of the Constitution of India the petitioner who is one of the defendants has challenged the order dated 7.3.2006 and 9.5.2006 passed by the sub-Judge, IInd, Koderma in Title Suit No. 17/01, whereby he has rejected the application filed by the petitioner for transposing her as plaintiff at the stage when plaintiff files petitioner for withdrawal of the suit.

2. The facts of case lie in a narrow compass:

Plaintiff/respondent Nos. 1 and 2 filed partition Title Suit No. 17 of 2001 seeking preliminary decree for partition of 1/6th share each in the suit property fully described in the schedule of the plaint and also for appointment of survey knowing Pleader Commissioner for survey out of their share and preparation of final decree. In the said suit, petitioner was not impleaded as defendant although, she is sister of the plaintiff and have share in the suit property. When petitioner came to know about the suit, she appeared and filed application under Order 1, Rule 10 of the Code of Civil Procedure for adding her as defendant in the suit. The said application was allowed by the Court below and, thereafter, petitioner filed her written statement claiming that she is entitled to get 1/4th share of the suit property. The Court below framed issues and fixed the suit for hearing. But all of a sudden, plaintiff in connivance with other defendants filed another petition under Order XXIII, Rule 1 of the Code of Civil Procedure for withdrawal of the suit on the ground that suit will fell due to some formal defect. Petitioner filed rejoinder opposing the said prayer stating therein that just to defeat the right of the petitioner, plaintiff has filed petition for withdrawal of the suit. It was also stated by the petitioner that she came to know that the plaintiff and other defendants have entered into an agreement to sell the property in order to deprive the petitioner-co-sharer for getting her share. Petitioner, therefore, filed application under Order XXIII, Rule 1A of the Code of Civil. Procedure praying therein that she may be ordered to be transposed as plaintiff in the said partition suit. The Court below after hearing the parties, rejected the petition filed by the petitioner taking notice of Section 6 of the Hindu Succession Act. Since the Court below has committed error apparent on face of the record petitioner filed application for review of the order dated 7.3.20Q6 which was also rejected by the Court below. Hence, this application.

3. I have heard, learned Counsel for the parties and perused the record.

4. The undisputed fact as stated by the petitioner in the transposition petition is that one Baijnath Diwan died before the institution of the suit leaving behind plaintiff and defendant Nos. 1 to 4 and defendant Nos. 16 and 2 sisters as heirs and legal representatives. Petitioner is daughter of the defendant No. 1. The suit property is an ancestral property of the parties. Petitioner being grand-daughter claimed share in the suit property.

5. The Court below while passing the order on the transposition petition has virtually proceeded to decide the claim of the petitioner in the suit property. The Court below held that admittedly, petitioner is grand-daughter of Baijnath Diwan and she is not class-I heir and further that interest of Mitakshara Coparcener shall be deemed to have share in the property that would have been allotted to him if partition of property had taken place immediately before his death.

6. Prima facie, I am of the view that the Court below has not correctly appreciated the provisions of Hindu Succession Act, vis-a-vis Order XXIII, Rule 1-A of the Code of Civil Procedure. As noticed above, the Court below allowed the application of the petitioner under Order 1, Rule 10 of the Code of Civil Procedure on the ground that she being the sister of the plaintiff has interest in the suit property. In such circumstances, the Court below out not to have rejected applica