Bengali Babu @ Hari Shanker Gupta vs Niranjan Lal Varshney and Others

D.K. Seth, J.—The plaintiff has filed a suit in which the mother of the petitioner as well as the petitioner were parties. It is alleged that the petitioner was the adopted son of the mother of the petitioner. The mother died. On the strength of a Will, the opposite party No. 3 was sought to be added as a party in the proceedings pursuant to an application made by the opposite party No. 3. The application was allowed by the trial Court but the Revisional Court had rejected the same, against which a Writ Petition was moved, wherein it was directed that the trial Court shall decide as to whether the respondent No. 3 is legal heir of the deceased. This time, the trial Court had rejected and held that the respondent No. 3 was not a legal heir of the deceased. Then an issue was framed and on that issue, a finding was given. Revision was preferred by the plaintiff and not by the respondent No. 3 and that was allowed. It is this order which has since been challenged by Mr. Swapnil Kumar. Learned counsel for the defendant contends that the plaintiff has no right to challenge the said order, it is only the respondent No. 3 who could have challenged the said order. He also contends that the Revisional Court had misread the situation and had wrongly decided the case reversing the order of the trial Court.

After having heard Mr. Kumar, I do not find any substance in his submission. If an issue is decided, the plaintiff has every right to challenge the same. Whether it is between one defendant or two, it is immaterial. Still then it is an issue decided between the plaintiff and the defendants and as such plaintiff has every right to challenge such order in appeal or revision.

Then again, between the two defendants claiming title to the estate left by the deceased they are attempting to represent the lis or the estate of the deceased to the exclusion of the other. Such a dispute cannot be gone into within the scope and ambit of Order XXII, Rule 10 or Order 1, Rule 10 where the question is confined to this question of representing the lis, or for representing the estate, nor the question as to who is entitled to the property. It is a dispute between two defendants and the same has to be ascertained in separate suit. It cannot be brought within the scope and ambit of the suit filed by the plaintiff. It would be wholly a misjoinder of cause of action outside the scope and ambit of the suit filed by the plaintiff, in which such question between the two defendants interse cannot be gone into. The question of representing the lis has been held by Courts not to operate as resjudicata interse the defendants. It is also not a decision on merit in respect of the rights interse the defendants. On the other hand, it is lis or the estate that is represented. The plaintiff is not supposed to take the risk. If respondent No. 3 is to be excluded then the decree may not bind him since he was not a party to the proceeding and so far as the lis with regard to the estate left by the deceased could not be subjectmatter of the decree.

Therefore, for all these reasons, I am not inclined to interfere with the order impugned. However, let it be noted that the decision of the said issue would not prejudice the rights in between the defendants interse.

The Writ Petition is dismissed. No cost. Petition dismissed.