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IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.753 of 2023 ====================================================== Bhadai Sharma S/o Late Lachhu Sharma R/o Village Gahri Tola Gamahriya, PO Gamahriya PS Nautan, District West Champaran. ... ... Petitioner/s Versus
1. Biltu Sharma S/o Late Gulab Sharma R/o Village Gahiri tola Gamahariya, PO Jhakhara, PS Nautan, District West Champaran. 2. Basdev Sharam S/o Kailash Sharma Resident of Village Gehiri Tola Gamahariya, PO Jhakhara PS Nautan Distirct West Champaran. 3. Sri Mati Laljhari Devi D/o Late Kailash Sharma W/o Ramji Sharma Resident of Vilalge Bahuarwa, PO and PS Majhaudia, District West Champaran. 4. Shri Mati Munni Devi D/o Kailash Sharma, W/o Nandlal Sharma Resident of Village and PO and PS Sugali, District East Champaran. 5. Prabhu Ram Sharma S/o Late Lachhu Sharma Resident of Village Gahiri Tola, PO Jhakhra PS Nautan, Distirct West Champaran. 6. Most. Sukaisri W/o Dhari Sharma, D/o Jhaman Sharma R/o Village Gidha, PS Chanpatia, District West Champaran. 7. Hari Sharma S/o Late Ram Avatar Sharma R/o Vilalge Balhira, PS Majhaulia, PO Bathna, Distirct-West Champaran. 8. Suresh Sharma S/o Late Rajpati Sharma R/o Vilalge-Gahiri tola, Gamahariya, PO Jhakhara, PS Nautan, District West Champaran. 9. Sheo Kumara Devi D/o Late Rajpati Sharma, W/o Achhelal Sharma R/o Village Noneya Tiwary tola, PO Harsidhi, PS Paharpur, District East Champaran. 10. Maya Devi W/o Harendra Sharma R/o Village-Tumreria, tola, Ward no 2, PO Razaul PS Raxaul, Distirct-East Champaran. 11. America Sharma S/o Late Rajpati Sharma R/o Vilage Gahiri tola, Gamhariya, PO Jhakhra, PS Nautan, District West Champaran. 12. Kapil Shah S/o Late Mahadeo Shah Resident of Village Gamahariya, P.S. Nautan, District West Champaran. 13. Mahanth Shah S/o Late Mahadeo Shah Resident of Village Gamahariya, P.S. Nautan, District West Champaran. 14. Jagat Shah S/o Late Mahadeo Shah Resident of Village Gamahariya, P.S. Nautan, District West Champaran. 15. Suresh Shah Son of Late Imdradev Shah Resident of Village Gamahariya, P.S. Nautan, District West Champaran. 16. Ganesh Shah Son of Late Indradev Shah Resident of Village Gamahariya, P.S. Nautan, District West Champaran. 17. Naresh Shah Son of Late Indradev Shah Resident of Village Gamahariya, P.S. Nautan, District West Champaran. 18. Manoj Shah Son of Late Indradev Shah Resident of Village Gamahariya,
Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 2/11 P.S. Nautan, District West Champaran. 19. Vishwa Mohan Shah Son of Late Indradev Shah Resident of Village Gamahariya, P.S. Nautan, District West Champaran. 20.
Vaidya Nath S/o Late Mahadev Shah R/o Village Barwat, PO Barwat Via Bettiah West Champaran. 21. Mohan Shah S/o Late Uma Shah R/o Village Barwat, PO Barwat Via Bettiah West Champaran. 22. Ram Jhanki Kunwar W/o Late Baccha Shah R/o Village Gamahriya, PO Jhakra, PS Nautan District-West Champaran. 23. Shushila Devi D/o Late Prma Shah R/o Village Barwat, PO Barwat Via Bettiah West Champaran. 24. Ramashry Shah S/o Late Radhe Shah R/o Village-Gamharis, PS Jagdishpur, District-West Champaran. 25. Shambhu Shah S/o Radhe Shah R/o Village-Gamharis, PS Jagdishpur, District-West Champaran. 26. Hari Charan Shah S/o Late Radhe Shah R/o Village-Gamharis, PS Jagdishpur, District-West Champaran. 27. Shobha Dev D/o Late Radhe Shah, W/o Pramod Shah R/o Village- Hirapakar, PS Manua, District-West Champaran. 28. Sumitra Devi D/o Late Radhe Shah, W/o Basant Shah R/o Village Maniyav, Po Jhakhar, PS Jagdishpur, District West Champaran. 29. Asha Devi D/o Late Radhe Shah, W/o Kishori Shah R/o Village Mohhamd, PS Motihari, District-East Champaran. 30. Most. Bhukhali Devi W/o Late Kedar Shah R/o Village Gomhariya, PS Nautan, District-West Champaran. 31. Poral Shah S/o Late Kedar Shah R/o Village Gomhariya, PS Nautan, District-West Champaran. 33. Lalan Shah S/o Late Kedar Shah R/o Village Gomhariya, PS Nautan, District-West Champaran. 34. Sanjay Shah S/o Late Kedar Shah R/o Village Gomhariya, PS Nautan, District-West Champaran. 35. Gyanti Devi D/o Late Kedar Shah, W/o Sanjay Shah R/o Village Kauwala, PS Govindganj, District-West Champaran. 36. Most Kanti devi W/o Late Yogendra Shah R/o Village Goriatola, PS Nautan, District West Champaran. 37. Pramod Shah S/o Late Yogendra Shah R/o Village Goriatola, PS Nautan, District West Champaran. 38. Chinta Devi D/o Late Yogendra Shah, W/o ranjay Shah R/o Village Gohiri, PO Gohiri, PS Nautan, District-West Champaran. 39. Girija Devi D/o Late Yogendra Shah, W/o Raj Kishor Shah R/o Village Ghiwadhar, PO Ghiwadhar, PS Harsidhi, District-East Champaran. 40. Usha Devi D/o Late Yogendra Shah, W/o Kameshwar Shah R/o Vilage Sugauli, PS and Po Sugauli, District-East Champaran.
Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 3/11
41. Godawali Devi D/o Late Yogendra Shah, W/o Krishna Shah R/o Vilage Sugauli, PS and PO Sugauli, District-East Champaran. 42. Satrughan Sah S/o Late Banarasi Prasad R/o Village Gambhirpur, PS Gagdhirpur, District-West Champaran. 43. Sona Devi D/o Late Banarasi Pd. W/o Suresh Shah R/o Village Kotwa, PO Magural, PS Paharpur, District West Champaran. 44. Gayetri devi D/o Late Banarasi Pd, W/o Anil Shah R/o Vilage Segauli, PS and Po Segauli, District-East Champaran. 45. Tara Devi D/o Late Banarasi Pd, W/o Hariom Shah R/o Village Turkariya, Ps Turkawalia, District East Champaran. 46. Kishori Shah W/o Ramchandra Shah R/o Village Phulwakhand, PS Bairiya, District West Champaran. 47. Kishori Shah S/o Late Ramchandra Shah R/o Village Phulwakhand, PS Bairiya, District West Champaran. 48. Ashok Shah S/o Late Ramchandra Shah R/o Village Phulwakhand, PS Bairiya, District West Champaran. 49. Santosh Shah S/o Late Ramchandra Shah R/o Village Phulwakhand, PS Bairiya, District West Champaran. 50. Geeta Devi W/o Acche Lal Shah, D/o Ramshivedra Shah R/o Village Phulwakhand, PS Bairiya, District West Champaran. 51. Prem Shila Devi W/o Awdesh Shah, D/o Ramchandra Shah R/o Village- Madhopur, PS Majhaulia, District West Champaran. 52. Lalmuni Devi W/o Gauri Shankar Shah, D/o Ramchandra Shah R/o Village and PO Kauwah, PS Paharpur, District West Champaran. 53. Shanti Kunwar W/o Late Vikash Shah Resident of Village Gahiri Tola Gamhariya, PS Nautan, District West Champaran. 54. Gauri Shah D/o Belas Shah Resident of Village Gahiri Tola Gamhariya, PS Nautan, District West Champaran. 55. Om Prakash Shah S/o Valas Shah Resident of Village Gahiri Tola Gamhariya, PS Nautan, District West Champaran. 56. Most. Fuldharia Devi W/o Late Jagarnath Shah R/o Village Gohiri tola Gamhariya, PS Nautan, District West Champaran. 57. Sudama Shah S/o Late Jagarnath Shah R/o Village Gohiri tola Gamhariya, PS Nautan, District West Champaran. 58. Sahib Shah S/o Late Jagarnath Shah R/o Village Gohiri tola Gamhariya, PS Nautan, District West Champaran. 59.
Sharda Devi D/o Late Jagarnath Shah, W/o Kaiash Shah R/o Village- Tadhawadih, PS Bharoganj, District-West Champaran. 60. Most. Shanty Devi D/o Jagarnath Shah, W/o Late Shambhu Shah R/o Village-Baherwa, PS Jagdishpur, District-West Champaran. 61. Maya Devi D/o Late Jagarnath Shah, W/o Shambhu Shah R/o Village- Turkawalila, PS Turkawalia, District-East Champaran. 62. Sarswati Devi D/o late Jagarnath Shah, W/o Vinod Shah R/o Village-
Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 4/11 Turkawalila, PS Turkawalia, District-East Champaran. 63. Lalsa Devi D/o Late Jagarnath Shah, W/o Rakesh Shah R/o Village Motihari, PS Motihari, Distict East Champaran. 64. Asrfi Shah S/o Late Chhote Lal Shah R/o Village Gahiri tola Gamharia, PO Jhakhra, PS Nautan, Distirct West Champaran. 65. Kouajati Devi D/o Late Harihar Mehto, W/oLate beno Pd. R/o Village Sonbarisa, PS Harsidhi, District East Champaran. 66. Sarjug Pd. S/o late Harihar Mahato R/o Village Gambharia, PS Jagdishpur, District West Champaran. 67. Ramesh Pd. S/o Late Harihar Mahato R/o Village Gambharia, PS Jagdishpur, District West Champaran. 68. Yamuna Pd. S/o Late Harihar Mahato R/o Village Gambharia, PS Jagdishpur, District West Champaran. 69. Kashilal Pd S/o Late Harihar Mahato R/o Village Gambharia, PS Jagdishpur, District West Champaran. 70. Hira Rawat S/o Late Puran Raut Resident of Village Gahri Tola Gamahariya, PO Jhakara, PS Nautan, District-West Champaran. 71. Bidhe Ram S/o Late Jaleshwar Ram Resident of Village Gahri Tola Gamahariya, PO Jhakara, PS Nautan, District-West Champaran. 72. Dhanik Lal Ram S/o Late Jaleshwar Ram Resident of Village Gahri Tola Gamahariya, PO Jhakara, PS Nautan, District-West Champaran. 73. Dhanushadhari Ram S/o Late Jaleshwar Ram Resident of Village Gahri Tola Gamahariya, PO Jhakara, PS Nautan, District-West Champaran. 74. Shri Mati Guljari Devi W/o Ram Prit Ram, D/o of Late Jaleswar Ram Resident of Village Gahri Tola Gamahariya, PO Jhakara, PS Nautan, District-West Champaran. 75. Shrimati Birya Devi W/o of Janak Ram , D/o Late Jaleshwar Ram Resident of Village Gahri Tola Gamahariya, PO Jhakara, PS Nautan, District-West Champaran. 76.
Shrimati Rambali Devi W/o Sheoshankar Ram, D/o Late Jaleshwar Ram R/o Village Dagbana, PO Jagdishpur PS Nautan, District-West Champaran. 77. Sitaram Yadav S/o Late Boti Yadav R/o Village Gahiri Tola Gamhariya, PO Jhakhara, PS Nautan, District West Champaran. 78. Phuleshri W/o Late Takman Mahto Resident of Village-Bishanpura Matihariya, PS Paharpur, District-West Champaran. 79. Bishundeo Prasad Son of Late Takman Mahto Resident of Village- Bishanpura Matihariya, PS Paharpur, District-West Champaran. 80. Madan Prasad Son of Late Takman Mahto Resident of Village-Bishanpura Matihariya, PS Paharpur, District-West Champaran. 81. Joginder Prasad Son of Late Takman Mahto Resident of Village-Bishanpura Matihariya, PS Paharpur, District-West Champaran. 82. Harinder Prasad Son of Late Takman Mahto Resident of Village-Bishanpura Matihariya, PS Paharpur, District-West Champaran. Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 5/11
83. Bhagmati Kunwar D/o Takman Mahto, W/o Late Ram Nandan Prasad Resident of Village Narwa, PS Majhaulia, District West Champaran. 84. Shri Matim Devi D/o Late Taken Mahto, W/o Jaiprakash Prakash R/o Village Ahwarsheikh Po Ahwarsheikh, PS Majhaulia, District West Champaran. 85. Dukhi Mahto S/o Tekman Mahto R/o Village-Bishunpur, Matiarwa, PO Nonia, PS Paharpur, District East Champaran. 86. Nagina Sharma Son of Anwal Sharma Resident of Village Gurwaliya, PS Manuapul, Distirct-West Champaran. 87. Shambhu Sharma Son of Anwal Sharma R/o Village Gurwaliya, PS Manuapul, District West Champaran. 88. Urmila Devi Wife of Shri Lakshman Sharma, Daughter of Late Anvar Sharma, Resident of Mahana Najar, Po Mahan gali Via Bettiah Mufassil, District West Champaran. 89. Usha Devi W/o Prem Kishor Sharma D/o Late Anvat Sharma Resident of Vilalge and PS Chanpatiya, District West Champaran. 90. Sudama Sharma S/o Anwat Sharma Resident of Gurwalia, PS Bettiah, District West Champaran. 91. Kishundev Prasad Son of Baijnath Prasad Resident of Vilage Gahiri Tola Gamharia, PS Nautan District West Champaran. 92. Birendra Prasad Son of Baijnath Prasad Resident of Vilage Gahiri Tola Gamharia, PS Nautan District West Champaran. 93. Umesh Kumar Singh S/o Shyam Sunder Singh Resident of Sariya Birititola, PO Victoria Mission, PS Pahpur, District East Champaran.
94. Chandra Bhushan Singh S/o Late Lagan Shah R/o Village Gamaharia, PS Jagdishpur, District-West Champaran. 95. Indra Bhushan Singh S/o Late Lagan Shah R/o Village Gamaharia, PS Jagdishpur, District-West Champaran. 96. Bharat Bhushan Singh S/o Late Lagan Shah R/o Village Gamaharia, PS Jagdishpur, District-West Champaran. 97. Jadulal Shah S/o Late Lagan Shah R/o Village Gamaharia, PS Jagdishpur, District-West Champaran. 98. Pitamber Sah S/o Late Bangali Shah R/o Village Gamaharia, PS Jagdishpur, District-West Champaran. 99. Bhagat Shah S/o Late Bangali Shah R/o Village Gamaharia, PS Jagdishpur, District-West Champaran. 100 . Kishpre Shah S/o Late Bangali Shah R/o Village Gamaharia, PS Jagdishpur, District-West Champaran. 101 . Ramesh Shah S/o Late Bangali Shah R/o Village Gamaharia, PS Jagdishpur, District-West Champaran. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Chandra Kant, Advocate
Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 6/11 Mr. Navin Kumar, Advocate Mr. Sudhanshu Prakash, Advocate For the Respondent/s : Mr. Subodh Kumar Jha, Advocate Mr. Pranaw Kr. Jha, Advocate Mr. Ashok Kr. Gupta, Advocate Mr. Chandra Mohan Jha, Advocate ======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT Date : 07-04-2025 Heard learned counsel for the petitioner as well as the respondents.
2. The petitioner is aggrieved by the order dated 17.02.2023 passed by the learned Additional District Judge-5th, Bettiah in Title Appeal No. 36 of 2011 whereby and whereunder while allowing the application dated 14.09.2022 filed by the plaintiff/appellant/ respondent no.1, the learned 1st appellate court rejected the application dated 12.10.2022 filed under
Order 23 Rule 1(A) read with Order 1 Rule 10(1) of the Code of Civil Procedure (for short ‘the Code’) by defendant/respondent no.5, petitioner, herein. 3. Learned counsel for the petitioner submits that the petitioner was defendant no.3 before the learned trial court and respondent no.1 was plaintiff who has filed a suit for partition claiming 1/3rd share in the suit property vide Partition Suit No. 40 of 1994. The suit was dismissed on contest and the respondent no.1 preferred Title Appeal No. 36 of 2011. The said title appeal was filed on 26.04.2011 and on 14.09.2022, an
Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 7/11 application was filed by the appellant/respondent no.1 seeking permission to withdraw the said appeal. At the same time, the petitioner also filed an application for his transposition in the said title appeal on the ground that the substantive interest of the petitioner was involved in pursuing with the appeal. The learned 1st appellate court though allowed the application filed by the appellant/respondent no.1, it dismissed the application of the petitioner filed for transposition which is under challenge before this Court. 4. Learned counsel further submits that the first appeal arises out of judgment and decree of a partition suit and in a partition suit all the plaintiffs can be treated as defendants and vice versa and the same position continues in the appeal. The appellants could be respondents and the respondents could be appellants. Learned counsel further submits that Order 23 Rule 1(A) of the Code provides for transposition in case of withdrawal or abandonment of the suit. As an appeal is the continuation of suit, the same provision would apply and as the petitioner is having a substantial question to be decided against other respondents, the learned 1st appellate court committed an error in rejecting the application filed for transposition. Learned counsel refers to a decision of the Hon’ble Supreme Court in the
Patna High Court C.Misc.
No.753 of 2023 dt.07-04-2025 8/11 case of R. Dhanasundari @ R. Rajeswari vs. A.N. Umakanth & Ors., reported in 2019 (2) BLJ SC 331, wherein the Hon’ble Supreme Court held that in the eventuality of plaintiff withdrawing the suit or abandoning his claim, a pro forma defendant, who has a substantial question to be decided against the co-defendant, is entitled to seek his transposition as plaintiff for determination of such a question against the said co- defendant in the given suit itself. Thus, the learned counsel submits that the impugned order could not be sustained and the same be set aside. 5. Learned counsel appearing on behalf of the respondents vehemently contends that there is no infirmity in the impugned order and the same does not need any interference by this Court. Learned counsel further submits that the learned 1st appellate court has discussed at length the contention of the parties and thereafter came to a finding that if the sole appellant does not want to proceed with his appeal and wants to withdraw it, it was not proper and justifiable for the respondent no.5 to make an application for his transposition. Learned counsel further submits that if the petitioner is aggrieved by the withdrawal of the suit, he can bring his independent suit by making payment of proper court fee and the petitioner could not
Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 9/11 force the respondent no.1 to contest the suit against his wishes. Thus, learned counsel submits that there is no infirmity in the impugned order. 6. I have given my thoughtful consideration to the rival submission of the parties and perused the record. Perusal of record shows despite opportunities, other respondents did not appear though all have been served. 7.
The simple issue involved in the present case is whether the learned 1st appellate court was correct in its approach in rejecting the application filed by the petitioner for his transposition in place of the sole appellant, once the sole appellant moved before the learned 1st appellate court seeking withdrawal of the appeal. Now, Order 23 Rule 1(A) of the Code reads as under:-
“[1A. When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]”
8. The provision makes it clear that in case of withdrawal of a suit or abandonment of claim by the plaintiff under Order 23 Rule 1(A), the court can allow transposition of a
Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 10/11 defendant in place of the plaintiff on application being moved in this regard subject to condition that the applicant has a substantial question to be decided as against any of the other defendants. Since it is a partition suit and the appellant is the plaintiff and other defendants are respondents and the respondent no.5 claims to have his interest in continuing with the appeal, the same should have been taken into consideration by the learned 1st appellate court while considering the application of the respondent no.5 who is the present petitioner. The Hon’ble Supreme Court in the case of R. Dhanasundari @ R. Rajeswari (supra) has held that very nature of the provisions contained in Rule 1-A leaves nothing to doubt that the powers of the court to grant such a prayer for transposition are very wide and could be exercised for effectual and comprehensive adjudication of all the matters in controversy in the suit.
It further held that the basic requirement of exercise of power under Rule 1-A of the Code would be to examine if the plaintiff is seeking to withdraw or to abandon his claim under Rule 1 of
Order 23 of the Code and the defendant seeking transposition is having an interest in the subject matter of the suit and thereby, a substantial question to be adjudicated against other defendants. The Hon’ble Supreme Court further held that in such a situation,
Patna High Court C.Misc. No.753 of 2023 dt.07-04-2025 11/11 the pro forma defendant is to be allowed to continue with the suit as plaintiff, thereby averting the likelihood of his right being defeated and also for obviating unnecessary multiplicity of proceeding.
9. Appeal being continuation of trial and respondents are all defendants, I think the learned 1st appellate court erred on this point in not appreciating the correct position of law and rejected the application of the petitioner without any
consideration of the facts as well as the law.
10. Therefore, the impugned order dated 17.02.2023 passed by learned Additional District Judge-5th, Bettiah in Title Appeal No. 36 of 2011 could not be sustained and the same is set aside. Consequently, the application dated 12.10.2022 filed by the petitioner for his transposition is allowed.
11. Accordingly, the present petition stands allowed.
balmukund/- (Arun Kumar Jha, J) AFR/NAFR NAFR CAV DATE NA Uploading Date 11.04.2025 Transmission Date NA