JUDGMENT

Shree Chandrashekhar, J. – Aggrieved of order dated 13.08.2009 passed in Title Suit No. 36 of 2007 whereby the application filed under Order 1, Rule 10(2) r/w section 151 CPC has been allowed, the petitioners have approached this Court.

2. The petitioners are plaintiffs in Title Suit No. 36 of 2007, which was instituted for a decree of declaration that the schedule ''A'' property is raiyati land and the plaintiffs are occupancy raiyats who held intermediary rights over Khewat No. 4/1 at Village-Kud, District-Hazaribagh. The plaintiffs have pleaded that they are descendants of Jagarnath Mahto and Baijnath Mahto and the suit schedule properties were used by their ancestors. Over the suit properties their ancestors dug a tank more specifically, over plot No. 210. The State of Jharkhand and its authorities are made defendants in the suit. They objected to the claim of raiyati rights of the plaintiffs pleading that the suit schedule ''A'' land is recorded as Gairmajurwa khas land. Over the suit schedule property there is a tank which has been settled by the State in favour of different persons. In the pending suit, five villagers filed application for intervention pleading that the plaintiffs'' ancestors never came in possession over the suit properties nor did they apply for correction of record of rights after its publication. Over the suit schedule property there is a temple which is used by the villagers and the tank is used by the villagers for different purposes. This application was opposed by the plaintiffs and the defendants both. Applicants'' locus-standi was seriously challenged by the parties to the title suit. It was pleaded that previously an application filed by one Mahavir Sao for his impleadment on similar grounds in the pending suit was already dismissed, however, this application has been allowed by the trial court vide impugned order dated 13.08.2009.

3. The issue who is a proper party or a necessary party in a suit has long before decided by the Supreme Court in "Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar and Another" reported in AIR (1963) SC 786 . A necessary party is the one in whose absence the suit cannot be decided effectively and a proper party is the one whose presence is necessary for deciding the suit fully, effectively and completely. In Title Suit No. 36 of 2007, plaintiffs'' claim is that their ancestors came in possession over the suit schedule properties and they constructed a tank which has been used by them. They have further pleaded that settlement of tank by the State in favour of different persons was illegal. The stand of the intervenors that the suit property is public land recorded as Gairmajurwa khas in the record of rights would only confer upon the general public a right to use, which right can be exercised only when it is found that the suit land is Gairmajurwa khas land and, thus, it can be protected by the paramount owner, that is, the State which is defendant in Title Suit No. 36 of 2007. Evidently, the intervenors cannot claim that they are necessary parties to the suit. They also cannot claim that they are proper parties.

4. Finding serious infirmity in the impugned order dated 13.08.2009, it is set-aside. Intervenors shall be deleted from the array of parties in the pending Title Suit No. 36 of 2007 and the suit shall proceed expeditiously, in accordance with law. Interim order dated 05.05.2010 stands vacated.