Shree Chandrashekhar, J. - (1.) The petitioner is aggrieved of order dated 07.04.2017 passed in Title Suit No. 15 of 1997 by which his application under Order I Rule 10(2) CPC has been rejected.
(2.) Title Suit No. 15 of 1997 was instituted by Sanicharwa Oraon for a decree for declaration that he is the exclusive owner of the suit land and for a decree for recovery of possession of the suit land. Dilip Kachhap was defendant no. 1. During pendency of the suit the plaintiff as well as defendant no. 1 both died. In place of defendant no. 1 his wife namely, Milyani Kachhap and his daughter Kiran Kachhap were substituted. In their written statement the defendant nos. 1 and 1(a) have raised a preliminary objection on non-joinder of necessary party. They have pleaded that this petitioner-Ashok Kachhap was adopted by Dilip Kachhap during his lifetime and therefore he is a necessary party in the suit. The plaintiff admits that both plaintiff and defendants are governed by Oraon custom and according to law of inheritance if a person dies issueless his nearest agnates would inherit the family property and the female members are excluded from inheritance and succession. It is claimed by the defendants that the defendant no.1-Dilip Kachhap was adopted by Tunuwa Oraon who has executed a registered deed of adoption on 17.01.1973. Dilip Kachhap after his adoption lived together with Tunuwa Oraon and managed and look after the entire property belonging to Tunuwa Oraon and he was regularly paying rent to the State of Bihar. It is further pleaded by the defendants that Tunuwa Oraon during his lifetime sworn an affidavit on 21.06.1979 admitting that Dilip Kachhap is his adopted son who is legally entitled to inherit all his properties. Tunuwa Oraon had no son, he died in the year 1986 leaving behind his widow namely, Dasmi Orain and two daughters. After the death of Tunuwa Oraon the plaintiff claims that he came in possession over the suit property and constructed residential house over there. Subsequently, claiming illegal dispossession by defendant no. 1 the plaintiff along with wife of Tunuwa Oraon filed an application under Section 71A of C.N.T. Act, 1908 which was registered as SAR Case No.118/1992-93. This case was disposed of by the Special Officer (SAR) by an order dated 05.09.1994 holding that the controversy involved in the case pertains to inheritance of the property in question, an issue which cannot be decided in a proceeding under Section 71A. Appeal preferred against this order vide SAR Appeal No. 79R15/1994-95 stood dismissed on 20.11.1996.
(3.) From the aforesaid narration of facts it is apparent that the plaintiff himself admits that the issue involved in the suit would require an adjudication, who is entitled to claim properties of Tunuwa Oraon. By now it is well-settled that the one in whose absence the suit cannot be decided effectively is a necessary party and the one in whose absence the matter in controversy can be decided but whose presence is necessary for an effective and complete adjudication of the matter in controversy is a proper party. In the written statement the defendants have raised a plea of non-joinder of party on the ground that the applicant-Ashok Kachhap is the adopted son of late Dilip Kachhap. Under Order I Rule 9 CPC non-joinder or mis-joinder of a party is not such a defect on account of which the suit shall fail; it is a curable defect, still, the plaintiff who himself has pleaded that the issue in controversy pertains to inheritance and succession has resisted impleadment of the petitioner. The plaint averments and the stand taken by the defendants in their written statement unerringly indicate that in absence of the petitioner the controversy involved in the suit cannot be decided effectively and completely.;