The main legal point established in the judgment is the significance of impleading necessary parties in a partition suit, as mandated by Order I Rule 10(2) CPC, and the court's interpretation of the provision in line with the object behind it.

The petitioners were appellants in Appeal from Original Order No. 281 of 2002 which was filed against the order passed in Title Appeal No. 28 of 2000. In the Title Appeal they are respondents. They are aggrieved of order dated 24.12.2004 passed in the Title Appeal whereby now the application under Order I Rule 10(2) CPC filed by the appellants for impleading legal heirs of Bishun Gope has been allowed.

2. Appellants in Title Appeal No. 28 of 2000 are the plaintiffs in Title (Partition) Suit No. 79 of 1995. The suit was instituted for a preliminary decree for partition of Schedule-A properties to the extent of half share for the plaintiffs in the property and for a declaration that registered deed of gift dated 15.04.1988 executed by defendant no. 1 in favour of defendant no. 2 is void, collusive and not binding on the plaintiffs. Defendant no. 2 in the partition suit is wife of the defendant no. 1. The plaintiffs have pleaded that Chamu Gope was common ancestor of the parties. He had four sons, one was Khedan Gope. Lands comprised under khata nos. 2 and 6 of village-Lodahama were recorded in the name of Khedan Gope who at the time of his death was in jointness with his brother Balak Gope. On his death his brother Balak Gope has inherited 1.71 acres land comprised under Plot No. 902 of Khata No. 6 and Plot Nos. 903 & 907 of Khata No. 2 in village-Lodahma, District-Hazaribagh. Balak Gope had three sons namely, Jhutan Gope, Bansi Gope and Bishun Gope. Legal heirs of Jhutan Gope are plaintiffs in the partition suit.

3. According to the plaintiffs Bishun Gope died in the year, 1940 leaving behind his daughters who are married now. Jhutan Gope and Bansi Gope were in joint possession of the suit lands. Bansi Gope is defendant no. 1 and his wife is defendant no. 2 in Title (Partition) Suit No. 79 of 1995.

4. Plea set-up by the plaintiffs is that Bansi Gope has illegally and fraudulently transferred the undivided joint family property in favour of his wife through registered deed of gift dated 15.04.1988. The defendant no. 1 has claimed exclusive possession over the suit land on the basis of settlement from Maharani of Ramgarh, Padma in Samvat 2003, who had acquired the suit land in auction sale in Case No. 41 of 1947-48. However, the plaintiffs have claimed that the suit land was never sold in auction sale in the aforesaid case. It is further claim of the plaintiffs that hukumnama and other documents on the basis of which defendant no. 1 has claimed exclusive possession over the suit land were manufactured, forged and fabricated.

5. One of the issues framed in the partition suit was on non-joinder of necessary parties. The trial court has answered this issue against the plaintiffs. Partition suit was dismissed on contest vide judgment dated 24.04.2000. Aggrieved, the plaintiffs have preferred Title Appeal No. 28 of 2000. The appellate court by judgment dated 18.10.2002 set-aside the judgment and decree in Title (Partition) Suit No. 79 of 1995, however, the suit was sent back to the trial court to pass a fresh order after granting opportunity to the legal heirs of Bishun Gope to file written statement. This order was taken in appeal before the High Court by the defendants. One of the grounds of challenge was that the remand order by the appellate court was not an order under Rule 23 or Rule 23A and Rule 25 of Order XLI CPC. It was contended on behalf of the defendants that the order of remand for a fresh decision by the trial court after impleading the legal heirs of Bishun Gope would amount to permitting the plaintiffs to fill-up lacuna in the case. The Appeal from Original Order No. 281 of 2002 was allowed by the High Court by an order dated 22.06.2004 with a direction to the appellate court to decide Title Appeal No. 28 of 2000 on merits, in accordance with law.

6. After this order, in Title Appeal No. 28 of 2000 an application was filed by the appellants for impleading Smt. Munia Devi, Smt. Dano Devi and Smt. Mohini Devi who are