Ghoshpal Prasad Ray @ Ghoshpal Ray v. Sudama Ray And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.170 of 2019 ====================================================== Ghoshpal Prasad Ray @ Ghoshpal Ray S/o Late Lorik Prasad Ray Resident of Village-Yadurampur,P.S. Dariyapur, Dist.-Saran ... ... Petitioner

Versus

1.

Sudama Ray S/o Late Jamadar Ray 2.

Phulpati Devi W/o Late Sideshwar Ray 3.

Santosh Ray 4.

Chandan Kumar 5.

Dilip Kumar 6.

Pankaj Kumar 7.

Ahiraj Kumar All from 3 to 7 are sons of Late Sideshwar Ray. 8.

Nibha Kumari 9.

Sangita Devi Both 8 and 9 are daughter o late Sideshwar Ray 10.

Mahesh Ray S/o Late Jamadar Ray From 1 to 10 are resident of Village-Yadurampur, P.S. Dariyapur, Dist.-Saran 11.

Ram Sakal Ray S/o Late Daroga Ray, Resident of Village-Yadurampur,P.S. Dariyapur,Dist.-Saran 12.

Lalsa Devi W/o Late Vijay Ray 13.

Saroj Kumar 14.

Nitesh Kumar Both 13 and 14 are sons of late Vijay Ray 15.

Poonam Devi 16.

Nikki Kumari Both 15 and 16 are daughter of late Vijay Ray 17.

Ram Narayan Ray S/o Late Chandrika Ray 18.

Harendra Ray 19.

Awdhesh Ray Both 18 and 19 are sons of late Ram Bharosha Ray. 20.

Punit Rai S/o Late Parma Ray From 12 to 20 are resident of Village-Yadurampur,P.S. Dariyapur,Dist.-Saran

2/5 21.

Parmeshwar Ray S/o Late Bodha Ray 22.

Bipati Kunwar wife of Late Jugeshwr Rai 23.

Subash Ray 24.

Budhan Ray 25.

Vinod Ray From 23 to 25 are sons of late Jugeshwar Ray 26.

Manti Devi 27.

Lalti Devi Both 26 to 27 are daughters of late Jugeshwar Ray 28.

Rajeshwar Ray S/o Late Bodha Ray From 21 to 28 are resident of Village-Yadurampur, P.S. Dariyapur, Dist.-Saran 29.

Marachhia Kunwar W/o Late Channu Ray, D/o Late Raj Narayan Ray Resident of Village-Natha Chapra, P.S. Dariyapur, Dist.-Saran 30.

Manturni Devi W/o Rameshwar Ray, D/o Late Raj Narayan Ray Resident of Village-Chand Chak, P.S-Bheldi, Dist.-Saran ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s :

Mr.Anil Kumar Maharaj, Advocate For the Respondent/s :

Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date : 12-04-2019 This application under Article 227 of the Constitution of India has been filed by the petitioner for setting aside the order 24.09.2018 passed by the learned Sub Judge, Sonepur, Saran in Title Suit No. 272 of 2010 whereby an application filed by the respondents-1st set (defendants 1st Set) dated 28.05.2018 under Order 22 Rule 10 read with Section 151 of the Code of Civil Procedure ( for short 'C.P.C.') has been

3/5 allowed and the defendant 1st set has been directed to be transposed as plaintiffs.

2.

It is submitted by the learned counsel for the petitioner that the original plaintiff has two daughters but instead of impleading them as plaintiffs, the court has erroneously transposed defendants 1st set as plaintiffs. He contended that the order impugned is erroneous in law and the same has been passed without complying with the provisions prescribed in law. The court below has failed to appreciate that right to pursue the suit was vested in the legal representatives and heirs of the deceased and not the defendants 1st set. 3.

I have heard learned counsel for the petitioners and perused the impugned order.

4.

The original plaintiff had filed Title Suit No. 272 of 2010 in the court of Sub Judge-I, Saran at Chapra for declaration of his right and possession over the suit land described in Schedule-3 of the plaint as also for declaration that the defendant-3rd set have no right and title over the said land and their actions are illegal. The defendant 1st set as well as second set appeared and filed their respective written statements. Similarly, the defendant 3rd set also filed his written statement. During pendency of the case, the original plaintiff

4/5 died but his heirs or legal representatives did not file any application before the court that right to sue servives and they want to be impleaded as party. In absence of any application from the heirs and legal representatives of the original plaintiff, the defendants 1st set filed an application before the trial court that they have already purchased the suit land through registered deed from the original plaintiff and, thus, they be transposed as plaintiffs. The said application filed by the defendants-1st set was allowed vide impugned order dated 24.09.2018 passed by the trial court.

5.

Being aggrieved by the aforesaid order dated 24.09.2018, the petitioner has filed the instant application. At this stage, it would be relevant to note that Order 22 Rule 10 of the C.P.C. postulates continuation of suit by or against a person who has, by devolution, assignment or creation, acquired any interest during the pendency of a suit by leave of the court.The rule is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject of the suit has devolved upon another during pendecny of the suit. Such a suit may be continued with the leave of the court against the person acquiring the interest including any right created in the subject matter of the suit.

5/5 6.

Since the defendant 1st set has taken a plea that they have purchased the suit land from the original plaintiff, no error can be found with the order passed by the trial court whereby it has allowed their application for being transposed as plaintiff upon death of the original plaintiff. Since the original plaintiff had died and his legal heirs did not choose to file any application to pursue the suit and be impleaded as party, no error can be found with their non-impleadment.

7.

In view of the discussions made above, I see no reason to interfere with the order impugned in exercise of supervisory jurisdiction. The application is dismissed. (Ashwani Kumar Singh, J) Md. S/SKSuman.

AFR/NAFR NAFR CAV DATE NA Uploading Date 18.04.2019 Transmission Date