Jokhan Yadav And ORS v. Chhedi Yadav And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.13893 of 2015 ====================================================== Jokhan Yadav & Ors .... .... Petitioner/s

Versus

Chhedi Yadav & Ors .... .... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Shiv Kumar Dwivedy For the Respondent/s : Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 13-05-2016 Heard learned counsel Mr. Shiv Kumar Dwivedy for the petitioners.

By the order dated 01.12.2014 the learned Munsif, Bettiah, West Champaran rejected the intervention application filed by the petitioners under Order 1 Rule 10 of the Code of Civil Procedure.

It appears that the plaintiff-respondent filed the aforesaid suit praying for declaration that the order of the Executive Magistrate in 145 Cr.P.C. proceeding is not binding on the plaintiff and further for restoring back schedule-3 land to the plaintiff.

Admittedly petitioners-interveners are not party in 145 Cr.P.C. proceeding. They filed the application under Order 1 Rule 10 of the Code of Civil Procedure for being added as party on the ground that they are also the heirs of Hanshraj. The plaintiff

Patna High Court CWJC No.13893 of 2015 (2) dt.13-05-2016 objected the prayer for being addition on the ground that they are not the heirs of Hanshraj. The parties produced documentary evidences and thereafter the court below recorded finding that the case of the plaintiff appears to be plausible and accordingly rejected the intervention application.

The plaintiff has prayed for declaration that 145 Cr.P.C. proceeding is not binding on him and also for recovery of possession. In this suit, therefore, the question as to whether the petitioners are the heirs of Hanshraj or not is entirely a foreign question. In the suit the only question to be decided is whether the finding of the Executive Magistrate in 145 Cr.P.C. proceeding is binding on the plaintiff or not and whether the plaintiff is entitled for restoration of the property or not. If at all the petitioners are the heirs of Hanshraj and have got any share in the property, they are at liberty to file appropriate suit before appropriate forum but their presence in the present suit is not at all necessary. Therefore, in supervisory jurisdiction this Court cannot substitute its own finding regarding parentage of the petitioners when it is disputed by the plaintiff and admittedly the petitioners were not party in 145 Cr.P.C. proceeding.

Thus, this writ application is dismissed.

Harish/- (Mungeshwar Sahoo, J) U