The main legal point established in the judgment is the distinction between a necessary party and a proper party in the context of impleadment in civil proceedings.

JUDGMENT :

A.K. Rath, J.

By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 25.1.2019 passed by the learned Civil Judge (Sr.Division), Balasore in C.S.No.993 of 2017, whereby and whereunder, learned trial court rejected the application of the petitioner under Order 1 Rule 10 CPC for impleadment.

2. This case has a chequered history. The petitioner as plaintiff instituted O.S.No.1 of 1968 in the court of the learned Subordinate Judge, Balasore for partition for carving out his share claiming to be the son of Bipra. According to him, Netra, Saturi, Bikram and Mathuri were the four sons of Ainthu Rout. Netra died leaving behind his widow Chanda. Bipra left behind him. The contesting defendants took a plea that he was the illegitimate son of Chanda, the widow of Netra. Learned trial court decreed the suit. Learned appellate court reversed the same holding that the plaintiff had not been able to establish his case, namely, that he was the son of Bipra. He filed Second Appeal No.209 of 1978 before this Court. By judgment dated 7.3.1986, this Court assigned the following reasons and dismissed the appeal.

"One significant fact that has come to my notice is that though in the plaint the plaintiff claimed that he was the son of Bipra, he did not allege that after the death of Netra, Bipra married the widow Chanda Bewa and he (the plaintiff) was born out of that wed-lock. He examined himself as P.W.1 and stated that Ania was the wife of Bipra and she was his mother. In paragraph 10 of his deposition, he stated that Chanda had a daughter, who was dead, and had left behind no other issue and she had no son. In view of the said categorical statement of the plaintiff, reliance placed on the documents is misconceived. A totally different story is unfurled by Ext.5, etc.; it is not the case of the plaintiff. Therefore, the plaintiff is not consistent about his case. The lower appellate Court has rightly disbelieved his plea that he was the son of Bipra. Accordingly, I see no merit in this Second Appeal which is dismissed. But, in the circumstances, there would be no order as to costs."

3. While matter stood thus, the plaintiff-opposite party no.1 instituted C.S.No.1544 of 2013 in the court of the learned Civil Judge (Sr.Division), Balasore for declaration of title and permanent injunction. It was pleaded that the suit property was the ancestral property of the plaintiff and defendants no.2 to 7. In the provincial settlement of the year 1898, schedule 'A' property was recorded jointly in the names of Sanei, Sadei, Jagannath, Bholi and Ainthu alias Sapani. Bholi died issueless. Sadei died leaving behind his four sons namely, Radhu, Nidhi, Madha and Markanda. Sanei died leaving behind his only son namely Gendu alias Kinei alias Kinu. In the revisional settlement of the year 1908, schedule 'A' property was recorded jointly in the names of Kinu alias Gendu son of Sanei, Radhu, Nidhi, Madha and Markanda son of Sadei, Jagannath son of Pandav and Ainthu. Jagannath died issueless. There was amicable family partition between the recorded tenants in respect of khata no.8 of schedule 'A' property. In the partition, schedule 'A' property along with some other properties were allotted to the share of Ainthu. The same was recorded in the name of Ainthu in the C.S. R.O.R. of the year 1922-1923. While matter stood thus, Ainthu died leaving behind his four sons, namely, Netra, Saturi, Bipra and Mathuri. They succeeded to the properties of Ainthu. There was a mutual partition between them. In the said partition, schedule 'A' land along with some other properties were allotted to Mathuri. Mathuri used to pay rent. Netra and Saturi died issueless. Bipra died leaving behind his only daughter namely, Gouri Pradhan, defendant no.3. Mathuri died in the year 1970 leaving behind his four sons and two daughters, namely, Kanduri, Surendra, Rabindra, Gajendra, Jasoda alias Pradhan and Parbati alias Das. In the mutual partition,