FIRST APPEAL No. 27 OF 2006
GHANSHYAM GOPE & ORS. .................Appellants
Versus
HARI GOPE & ORS. ............. Respondents
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For the intervener : Mr. Sudhir Kumar, Advocate
For the Appellant : Mr. Anil Kumar Singh No.1, Advocate
For the Respondent : Mr. S.K. Sinha, Advocate
Dated : 6thday of July, 2011
ORDER
42. 06.07.2011. Heard the learned counsels for the parties on the
interlocutory application Nos.8269 of 2010 and 8270 of
2010.
(2) The interlocutory application No.8269 of 2010
has been filed by the intervener under Order 1 Rule 10 of
the Code of Civil Procedure for being added as party
respondent in the present appeal on the ground that the
suit properties have been purchased by the intervener in
the year 1985 and 1991 through five sale deeds as
mentioned in detail in paragraph 2 of the said intervention
application.
(3) It may be mentioned here that this First
Appeal has been filed against the final decree passed in
Title (Partition) Suit No.104 of 1969 passed by Sub Judge
I, Biharsharif. Against preliminary decree, First Appeal
No.489 of 1977 is still pending before this Court for final
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disposal. Admittedly, the rights of the parties have already
been decided in the preliminary decree as far back as in
the year 1977. During the pendency of the appeal against
preliminary decree, the intervener purchased some of the
properties from the respondents without leave of the
Court. So far this First Appeal is concerned, it arises out of
final decree. Even if now the purchaser is added as party
in this appeal, the decree will not be set aside. Moreover,
it is admitted fact that for declaration of his title and
confirmation of possession the intervener has already filed
Title Suit No.66 of 2008 in the Court of Sub Judge,
Biharsahrif, Nalanda.
(4) In 2004 (1) P.L.J.R. 66 Supreme Court
B.B. Jubeda Khatoon Vs. Nabi Hasan Saheb, the Apex
Court at paragraph 9 has held that the petitioner being a
transferee pendente lite without leave of the Court cannot,
as of right, seek impediment as a party in the suit which
are long pending since 1983. At paragraph 10, the Apex
Court further held that there is no absolute rule that the
transferee pendente lite without leave of the Court should
in all cases be allowed to join and contest the pending
suits. It appears that in that case, the suit was pending
since 1983. The purchase of the intervener is of the year
1985 and 1991, i.e., more than 21 years and he is
applying for being added as party respondent in this appeal
arising out of final decree, particularly when he is pursuing
his remedy before appropriate forum by filing Title Suit.
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Therefore, he cannot be permitted to pursue his remedy
simultaneously before two forum. At this stage, the
question raised by the intervener cannot be decided in this
First Appeal which are sub judiced in Title suit filed by him.
(5) I, therefore, find no reason to allow the
intervener application, i.e., I.A. No.8269 of 2010.
Accordingly, this interlocutory application is rejected.
(6) So far I.A. No.8270 of 2010 is concerned, this
interlocutory application has been filed by the intervener
for recall/modification of the order dated 28.04.2010
passed by this Court while hearing injunction application,
i.e., I.A. No.4282 of 2009. Since his application for being
added as party-respondent has been rejected, now, he is
not a party to the appeal. Therefore, at his instance, the
order passed by this Court with consent of the parties
cannot be modified/recalled. Therefore, this interlocutory
application is also rejected.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 6thday of July, 2011
Sanjeev/N.A.F.R.