Julimoni Kalita Deka and Anr v. Chandra Dhar Das and 21 Ors

Judgment & Order Heard Shri R. Ali, learned counsel for the petitioners. Also heard Shri P. Sarma, learned counsel for the respondent nos. 20 to 22.

¶2Though the names of the learned counsel for the respondent nos. 1, 2 & 4 is reflected in the cause list, there is no representation.

¶3The application has been presented under Article 227 of the Constitution of India challenging an order dated 30.11.2022 passed by the learned Civil Judge Page No.# 7/8 No. 3, Kamrup (M) at Guwahati in Misc. (J) Case No. 198 of 2021 arising out of Title Suit No. 116 of 2014.

¶4The suit was instituted by the respondent nos. 20 to 22 as plaintiffs for partition in which the present petitioners were defendant nos. 1 & 2. In the said suit, the defendant nos. 1 & 2, who are the present petitioners had filed the aforesaid Misc. (J) Case No. 198/2021 for impleadment of parties by invoking the provisions of Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure, 1908. The learned Court however, vide the impugned order dated

30.11.2022 had dismissed the application and accordingly, the present application has been filed.

¶5Shri Ali, the learned counsel has submitted that the suit being a partition suit, the position of the defendants would be at par with that of the plaintiffs. In this connection, the learned counsel has referred to a decision of the Hon'ble Supreme Court in the case of R. Ramamurthi Aiyar (Dead) by L. RS Vs Raja V. Rajeswararao reported in AIR 1973 SC 643. In the said case, the Hon'ble Supreme Court has reiterated that in a partition suit, the plaintiff is not the sole dominus litis and a defendant who is a stakeholder in the property would have equal rights.

¶6On the other hand, Shri Sarma, the learned counsel for the contesting respondent nos. 20 to 22 has submitted that the parties who are sought to be included are not the family members or having any interest in the partition suit but they claimed to have acquired the right, title and interest on the basis of certain gift deeds. He submits that in any case, any issue arising out of such forceful possession has to be raised separately and not in a suit for partition.

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¶7Though there is absolutely no dispute with the proposition advanced by Shri Ali, the learned counsel on the rights of a defendant in a partition suit, in the instant case, it appears that the reason for which the impleadment of new incumbents was filed was on the basis that those incumbents had encroached upon the land on the basis of some gift deeds. In the opinion of this Court, the issue which has been sought to be ultimately raised by impleadment of parties is of the cause of action of forceful possession by such incumbents which may be on the strength of certain Deeds. In a suit for partition, challenge to such Deeds may not be permissible or even proper.

¶8Accordingly, this Court is of the opinion that the impugned order dated

30.11.2022 passed by the learned Civil Judge No. 3, Kamrup (M) at Guwahati in Misc. (J) Case No. 198 of 2021 does not call for any interference. However, the petitioner would be at liberty to institute a fresh suit to espouse the cause of action including challenge to the Gift Deeds which may be the basis of such inclusion in the suit property. This Court also expects that the Trial Court would proceed expeditiously as the suit is of the year 2014. JUDGE Comparing Assistant

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