Heard counsel for the petitioners, learned standing counsel for respondent Nos. 1 & 2, Sri Anand Kumar Yadav for respondent No. 3 and Sri Neeraj Tiwari along with Sri Shiv Bahadur Yadav for respondent No. 4.
The plaintiff respondent No. 4 instituted a suit for partition of the joint holding claiming half share therein. The petitioners, who are defendants in the suit filed an application stating that part of the joint holding has been acquired by the transport department of the Government of India and, consequently, without impleading the said department, the suit is not maintainable. The trial Court while considering the said application held that the transport department is a necessary party to the suit and since it has not been impleaded, therefore, the suit is bad for non-joinder of necessary party. Accordingly, the suit was dismissed by judgment dated 13 March 2015. Aggrieved thereby, the plaintiff respondent filed appeal No. 21/2014-15. The appeal has been allowed by holding that in case part of joint holding has been acquired, it was open to the plaintiff to exclude the said part of the property from the partition suit and for such purpose, opportunity should have been granted to him to amend the plaint instead of dismissing the suit on the ground of non-joinder of necessary party. Accordingly, the Appellate Authority by order dated 26 October 2015 has set-aside the judgment of the trial Court dated 13 March 2015 and has remanded the matter with a direction to permit the plaintiff respondent to seek necessary amendments and, thereafter, the suit be decided on merits. The petitioners filed revision against the said order before the Board of Revenue, which has been dismissed by the impugned order dated 20 July 2016. The petitioners are, thus, before this Court.
It is submitted by learned counsel for the petitioners that since part of the suit property has been acquired by the transport department and, consequently, without impleading the said department, the suit could not proceed and, thus, the trial Court was justified in dismissing the suit for non-joinder of necessary party.
On the other hand, learned counsel for the plaintiff respondent submitted that the order of the Appellate Authority is fully justified in the facts and circumstances of the case.
I have considered the submissions made by learned counsel for the parties and perused the material on record.
It is not disputed before this Court that the acquisition of part of the holding by the transport department was of a specified portion of the suit property. The acquisition was not of an undivided share in the joint holding. Upon the acquisition of a specified part of the joint holding, the plaintiff and the defendants ceased to be its tenant. In such view of the matter, it was always open to the plaintiff respondent to seek amendment in the plaint and exclude that part of the joint holding, which already stood acquired by the transport department. The Appellate Authority was fully justified in allowing the appeal with liberty to the plaintiff respondent to seek the necessary amendment in that regard in the plaint. In the opinion of the Court, in the facts and circumstances aforesaid, the transport department was not a necessary party to the suit. Thus, no illegality has been committed by the Appellate Authority as well as by the Revisional Authority.
The writ petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 9.11.2016 AM/-