Justice Arun Kumar Jha sets aside rejection order of Sub Judge-VI, Patna in a Title Suit from Phulwari Sharif

In Farkunda Shahin & Ors. vs. Md. Mokhtar Alam & Ors. (2025), Justice Arun Kumar Jha of Patna High Court in his 17-page long judgement dated April 30, 2025 concluded: "I am of the considered opinion that the impugned order dated 20.09.2016 could not be sustained and same is set aside and the application dated 08.04.2016 is allowed. Accordingly, the present petition stands allowed." In this case from Phulwari Sharif, the order dated 20.09.2016 passed by Sub Judge-VI, Patna in Title Suit No. 482 of 2006 whereby and whereunder the trial court had rejected the petition dated 08.04.2016 filed under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure filed by the petitioners to be added as defendants in the suit.

The trial court had heard the parties and rejected the prayer for impleadment vide order dated 20.09.2016. This order was challenged before the High Court. The petitioners' counsel submitted that the impugned order is not sustainable and the trial court has passed the orders against the settled provision of law. The senior counsel further submitted that due to the mistake of the scribe, a wrong plot no. has been mentioned in the sale deed of the vendors and also in the sale deed of the petitioners but other description like Tauzi No., Khata No., area and boundary are the same. Further, a property could be identified by its boundary and misdescription or wrong mentioning of plot number would not come in the way of identifying the property. But this fact was not considered by the trial court. The counsel referred to a decision of the Supreme Court in the case of Sheodhyan Singh And Others vs Musammat Santchara Kuer And Others reported in AIR 1963 SC 1879 wherein the Court referred to the decision of the Privy Council wherein it was observed that a case of misdescription could be treated as a mere irregularity where there is no doubas to the identity of the property and if identity of the property is well established, misdescription does not affect the identity of the property sold and thus, Supreme Court held that the mistake in plot number must be treated as mere misdescription which does not affect the identity of the property sold. The senior counsel also submitted that moreover plot number 797 is part of Khata no. 46 and this is the admitted position in the plaint of the plaintiffs. This fact is also clear from making the vendors of the petitioners, namely Muneshwar Rai and Nazir Rai, as parties/defendants. They were made parties only on the ground that they were admittedly the title holder of Plot No. 796 but they have nothing to do with the Plot No. 797. Thus, the petitioners are bona fide purchasers from Muneshwar Rai and Nazir Rai of Plot No. 796 and are in exclusive possession of the same. The trial court failed to exercise its jurisdiction and did not consider the real dispute in issue and rejected the petition of the petitioner on misconceived grounds. Prior to the sale of the disputed property to the petitoners, Muneshwar Rai and Nazir Rai partitioned their property in half and got their names recorded in Government Sarista of the State of Bihar and jamabandi was created in their names and mutation was also done in the names of the petitioners. The senior counsel reiterated that Plot No. 797 comes under Khata No. 46 having area 11 decimal with different boundary and neither the plaintiffs not the intervenors/petitioners have any concern with the said plot of land. The senior counsel further submitted that the vendors of the petitioners have already sold the suit land and they have no interest in the suit property and might not properly contest the suit. This makes the petitioners necessary parties for proper disposal of the suit. The senior counsel also submitted that the petitioners are necessary parties having right, title and possession over one of the plots of the Schedule II property and their interest would be jeopardized if they are not made parties and it would also result in multiplicity of litigation. Thus, it has been submitted by the senior counsel that the impugned order is not sustainable and the same be set aside and the application of the petitioners for impleadment be allowed. 

Order 1 Rule 10(2) of the Code reads: “(2) Court may strike out or add parties The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

Supreme Court in the case of Kasturi vs. Iyyamperumal, reported in (2005) 6 SCC 733, has held that ‘necessary parties’ are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings. On the other hand ‘proper parties’ are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.

The Supreme Court in the case of Sumtibai vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.), reported in (2007) 10 SCC 82, has held that a party having a semblance of interest in the suit property could be impleaded as a party in the suit.

In the case of Mumbai International Airport (P) Ltd. vs. Regency Convention Centre & Hotels (P) Ltd., reported in (2010) 7 SCC 417 has discussed the law relating to impleadment of the parties. The relevant paragraphs 13, 14, 15, 22, 25 & 27 of the judgment reads:
“13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person
against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, impleadment of proper or necessary parties...
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the
Code, the court will of course act according to reason and fair play and not according to whims and caprice.
25. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.
27. On a careful examination of the facts of this case, we find that the appellant is neither a necessary party nor a proper party. As noticed above, the appellant is neither a purchaser nor the lessee of the suit property and has no right, title or interest therein. The first respondent-plaintiff in the suit has not sought any relief against the appellant. The presence of the appellant is not necessary for passing an effective decree in the suit for specific performance. Nor is its presence necessary for complete and effective adjudication of the matters in issue in the suit for specific performance filed by the first respondent-plaintiff against AAI. A person who expects to get a lease from the defendant in a suit for specific performance in the event of the suit being dismissed, cannot be said to be a person having some semblance of title in the property in dispute”.

Drawing on these judgements of the Supreme Court, Justice Jha observed: "...merely on this ground that disputed plot number does not match with the plot number of the petitioners, the rejection of the claim of the petitioners for impleadment is not proper. It is the settled provision of law that a land would be identified by its boundary and if its identity is established and the same is certain, mere misdescription would not come in the way of asserting rights by its title holder."