ORAL JUDGMENT

Date : 19-11-2024 I.A.No.01 of 2024 The instant interlocutory application has been filed on behalf of the petitioner for amendment in the cause title by impleading/adding the name of Mahendra Singh as party respondent no. 3 in the present petition.

2. The learned senior counsel appearing on behalf of the petitioner submits that due to inadvertence, earlier the said Mahendra Singh could not be made as a party respondent in the present civil miscellaneous petition and the details of the said Mahendra Singh have been mentioned in paragraph 2 of the instant interlocutory application. The learned senior counsel further submits that the said Mahendra Singh is a necessary party, who is respondent in Title Appeal No. 05/2021, which has been pending in the court of learned Additional District Judge-

III, Kaimur at Bhabhua.

3. Having regard to the facts and circumstances and the averments made in this interlocutory application, I.A. No.

01 of 2024 is allowed.

4. Office is directed to make necessary correction in the cause title of the instant case by adding the person named in paragraph 2 of the instant interlocutory application as respondent no.3.

Civil Misc. No.944 of 2023

5. Heard learned senior counsel for the petitioner as well as learned counsel for the respondents.

6. The petitioner is aggrieved by the order dated

30.05.2023 passed by learned Additional District & Sessions Judge-III, Kaimur at Bhabhua in Title Appeal No. 05 of 2021 whereby and whereunder the learned Additional District Judge rejected the application of the petitioner to implead him as a party respondent.

7. Learned senior counsel appearing on behalf of the petitioner submits that the learned appellate court did not consider the fact that plaintiff has encroached upon the public land and the suit land existed in the name of Government of Bihar as ‘Anabad Bihar Sarkar’. Through the said land the petitioner has been having his ingress and egress. Though, the title suit has been decided in favour of respondent no. 3, the appeal is still pending and for all purposes appeal is continuation of the lis. Thus, petitioner moved before the learned trial court during pendency of the Title Suit No. 275 of 2008 for impleadment as one of the party defendants but the same was rejected and the petitioner approached this Court by filing Civil Miscellaneous No. 759 of 2018 which was subsequently dismissed as withdrawn as the Title Suit was decreed in favour of respondent no. 3 but liberty was granted to the petitioner to pursue his remedy before the lower appellate court for his impleadment at the stage of trial. Consequently, the petitioner approached the learned Appellate Court seeking impleadment but the learned Ist Appellate Court did not appreciate the spirit of the order of this Court passed in Civil Miscellaneous No. 759 of 2018 and further failed to consider the situation under which the petitioner has to move before the Ist Appellate Court. Learned senior counsel next submits that the impugned order is in teeth of observation of this Court passed vide order dated 24.08.2022 in Civil Misc. No. 759 of

2018 and is not sustainable.

8. Learned senior counsel further submits that the petitioner is a necessary party as petitioner is a co-parcenor of the respondent no. 3 who was plaintiff of Title Suit No. 275 of 2008 and has right of easement through the suit land which according to respondent no. 1 & 2 is a public land. The learned Ist Appellate Court has wrongly arrived to the conclusion that petitioner has got no interest in the suit land. The learned Ist Appellate Court has further taken into consideration an irrelevant fact that the mother and brother of the petitioner have filed Title Suit No. 614 of 2022 against defendant Mahendra Singh who is respondent no. 3 herein but the said fact has nothing to do with impleadment of the petitioner in Title Appeal No. 05 of 2021. Thus, the learned counsel submitted that the impleadment order is not sustainable and the same be set