Hon’ble Rajan Roy, J.—Heard Sri Siddharth Varma, learned counsel for the petitioners and Sri Amit Kumar Raj, learned counsel for the respondents.

This writ petition has been filed by the petitioners-defendants challenging the order of the first appellate Court dated 9.12.2011 passed in Civil Appeal No. 23 of 2009, whereby, the application of the respondent No. 3-defendant for transposition as appellant in the appeal filed by the sons of Ram Nagina, i.e. respondent Nos. 1 and 2 herein has been allowed. The facts of the case in brief are as under:

2. One Sukhdev Rai executed a gift deed dated 20.2.1958 in favour of Ram Nagina, Ram Niwas and Bhagwanti. Bhagwanti was the wife of Ram Niwas and daughter of Sukhdev Rai. Ram Niwas and Ram Nagina were brothers. It is asserted by the respondent No. 3 that the aforesaid gift deed was executed in view of the fact that Sukhdev Rai wanted his son-in-law to reside with him as gharjamai, which was not possible, therefore, in the alternative, an offer was made that Sri Ram Nagina, the brother of Ram Niwas would look after the properties of Sukhdev Rai and accordingly, the gift deed in question was executed and the marriage of Ram Niwas was solemnized with the daughter of Sukhdev Rai, i.e. Bhagwanti. Subsequently, the petitioners herein allege that on 19.11.1979, Sukhdev Rai executed a sale-deed in respect of the same property, which was gifted to Ram Nagina and Ram Niwas in the year 1958, in their favour. As soon as Ram Nagina and Ram Niwas came to know about it, the suit was instituted for cancellation of the said Will, which was registered as Suit No. 85 of 1984, Ram Nagina Rai v. Smt. Dhaneshara Kunwar and others. Dhaneshara Kunwar daughter of Sukhdev Rai and the petitioners herein were made as defendants. Ram Niwas Rai was also made as a defendant allegedly for the reason that being employed in Rajsthan, it was not possible for him to file and pursue the case as plaintiff. In the suit proceedings, Ram Niwas was examined as plaintiff-witness-1. Ultimately, the suit was dismissed on 24.12.2008.

3. As the plaintiff Ram Nagina Rai had died, his legal heirs, i.e. respondent Nos. 1 and 2 herein filed an appeal against the aforesaid judgment, which was registered as Civil Appeal No. 23 of 2009. It is alleged by the respondent No. 3 herein that the sons of Ram Nagina, who were the appellants in the appeal in question became disinterested and were not pursuing the appeal and it was he, who was doing pairvi of the appeal. In these circumstances, he filed an application on 3.11.2010 before the first appellate Court under Order 1 Rule 10 read with Section 151, C.P.C. for his transposition as appellant therein. The respondent No. 3 herein was already a respondent in the said appeal as he was a defendant in the suit also. Objections were filed to the said application by the petitioners herein. The objections were to the effect that no valid reason has been disclosed in the application for transposition. The suit had been filed only by Sri Ram Nagina and his legal heirs were on record as appellants. The applicant seeking transposition did not prefer any appeal against the judgment dated 24.12.2008 by which the suit was dismissed hence having forgone the right of appeal, now he cannot get himself transposed as appellant by a circuitous route. Such transposition could not be justified. The application for transposition was barred as the appeal having been filed, limitation for filing the appeal is only one month, whereas, the application for transposition had been filed on 3.11.2010 much after filing of the Civil Appeal No. 23 of 2009 and much after expiry of the period of the limitation for challenging the judgment dated 24.12.2008. The applicant seeking transposition had an opportunity to get himself transposed during the pendency of the suit, but, he did not avail the said opportunity. The applicants are suitably placed to do the pairvi of the appeal and the said pairvi can be done even by way o