The court emphasized the importance of specific pleading and evidence when challenging the non-joinder of necessary parties, and held that the suit was not bad for non-joinder of necessary parties.

JUDGMENT :

This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Sundargarh in R.F.A. No. 35 of 2011 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Sundargarh in C.S. No. 166 of 2008.

The respondent no. 1 as the plaintiff has filed the suit for partition of the land described in the schedule of the plaint amongst the parties. It is his case that one Saheb Miyan had two sons namely, Sekhayat and Chhedi, both of whom are dead. They had the joint properties at mouza Rajgangpur under Khata no. 449 measuring Ac. 0.45 decimals over which they were having the residential houses and the land stood jointly recorded in their names. It is further stated that Sekhayat, besides the above property had got his separate landed property under Khata no. 448. They had constructed their separate residential houses where they used to reside with family and now their legal heirs are residing over there. But there was no partition of the said lands between them and their separate possession was merely for convenience which state has been continuing. The plaintiff claims to have approached the defendants on 25.08.2008 for partition and allotment of half share to him and as it was denied, the suit has been filed.

2. The appellant being the defendant no. 1 to 6 contested the suit by filing joint written statement. Similarly, defendant no. 7 to 10 and 13 have filed their written statement jointly, whereas the defendant no. 1 and 12 have submitted separate written statements. The defendant no. 1 to 6 in their written statement have given their genealogy saying that all the legal heirs of Saheb Miyan have not been made parties, though they are necessary parties to the suit. So, maintainability of the suit is challenged on the ground of non-joinder of necessary parties. According to them, Saheb died in the year 1996. They admit that the land under Hal Khata no. 449 stood jointly recorded in the name of Sekhayat and Chhedi which measures Ac. 0.45 decimals. Sekhayat’s share is said to be to the extent of Ac. 0.225 decimals. It is further stated that land under Hal Khata no. 448, is having total area of Ac. 0.50 decimals and under Hal Plot No. 46, the land measures Ac. 0.45 decimals. Thus total extent of land of Sekhayat in both the khatas is said to be of Ac. 0.725 decimals which stand for division amongst the heirs of Sekhayat. According to them, the plaintiff-respondent no. 1 has been in occupation of more land than what is due to him. They deny the plaintiff-respondent no. 1’s entitlement as half share over the land under both the Hal khatas.

They say that Sekhayat had not died leaving behind his two sons i.e., Mehebub and plaintiff but he had four sons namely, Sefayat, Mehbub, Zinat and Rafiq (plaintiff). Sefayat died leaving behind his widow, six sons and four daughters whereas Zinat died leaving four sons. It is further stated that all the legal heirs of Sefayat and Zinat are alive and they have not been impleaded as parties though they are necessary parties.

The respondent no. 7, 8 to 10 and 13 challenge the locusstandie of the plaintiff-respondent no. 1 to file the suit since he having taken possession of his share of land, has already constructed his house covering more than the area which he is entitled to get as of his share. The defendant no. 10 and 11 practically admit the case of the plaintiff.

3. The trial court on such rival pleadings, framed five issues. Going to answer issue no. 4, the decision has been returned that legal heirs of Sekhayat are entitled to half share over the suit land whereas the legal heir of Chhedi are entitled to the other half and that half share of Sekhayat is to be partitioned amongst the plaintiff, his brother and sister, when rest are to be partitioned amongst legal heirs of Chhedi. Similarly, the land under Khata no. 448 has been held as liable for the partition amongst legal heirs of Sekhayat. Next going to the issue relating to the no