M.Y.EQBAL, J. - (1.) IN this writ application filed under Article 227 of the Constitution of India, the plaintiffs -petitioners have prayed for quashing the order dated 25.6.2004 passed by the learned 4th Additional District Judge, Godda in Title Appeal No. 13 of 2003 whereby he has allowed the petition filed by the intervenor for impleading him as party -defendant.
(2.) THE facts of the case lie in a narrow compass: Plaintiffs filed suit for partition being Title (Partition) Suit No. 32/92 for preparation of preliminary decree of partition to the extent of 12 annas share in the suit property. Plaintiffs ' case is that Sk. Dayali Mandal and Sk. Marsalli Mandal, S/o late Kasim Ali Mandal of village Garhi held and possessed the suit property, which were recorded in the names of the aforesaid two brothers acquiring joint cultivating possession having equal share therein. Sk. Marsalli Mandal died leaving his widow, Bibi Jhako and a son Seikh Salamat as his heirs who inherited his interest in the aforesaid property. Thereafter, Sk. Salamat died in 1986 leaving behind his widow Bibi Maidan and two sons Md. Ayub Ali and Md. Maqusood and also three daughters as his heirs who said to have inherited the interest of their father. The suit was contested by the original defendants disputing genealogical table given in the plaint. The suit was eventually decreed on 30.5.2003. Aggrieved by the said judgment and decree defendants preferred appeal before the District Judge, Godda being Title Appeal No. 13/03. During the pendency of the appeal, respondent No. 1 Seikh Karu, S/o Seikh Salamat intervened in the appeal by filing a petition praying inter alia that he may be added as respondent on the ground inter alia that plaintiffs and the defendants left him out from the genealogical table on the g ground that Kasim Ali Mandal died leaving behind his two sons and one daughter namely, Sk. Dayali Mandal, Sk. Marsalli Mandal and Bibi Ammo. The said prayer was opposed by the plaintiffs. The court below after hearing the parties allowed the application holding that the intervenor/defendant is a necessary party in the suit and for the ends of justice he is to be added as party respondents/defendants.
(3.) LEARNED Counsel for the petitioners assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel submitted that at the appellate stage the intervenor - respondent should not have been made party. According to the learned Counsel after preliminary decree passed in a partition suit, third party cannot be impleaded plaintiff or defendant in the suit.;