Naresh Kumar Singh v. Manju Devi

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners For the Opp. Parties : Mr. J.N. Upadhyay, Advocate : ----- ----- Oral Order 03 / Dated : 11.10.2022

The instant petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 14.12.2021 passed in Original Title Suit No. 105 of 2017 by learned Civil Judge (Sr. Division)-I, Jamshedpur whereby a petition dated 28.09.2021 filed under Section 3 of the Partition Act has been rejected.

Petitioners are the defendants in Original Title Partition Suit No. 105 of 2017 which has been filed by the plaintiff who is the sister of the petitioners/ defendants. The suit property comprises of an area measuring 41.30 hectares, area measuring 200 Sq. Ft. within Survey Plot No. 625 under Khata No. 72 and Khewat No. 1/463, Plot No. 1578/1 within Ward No. 10 MNAC Mouza Baliguma, Town Jamshedpur. It is submitted that with respect to the same schedule property respondent plaintiff no. 1 has filed Title Partition Suit No. 19 of 2018 against the same defendant and other proforma defendants. Two suits on same cause of action are not maintainable not only under Section 10 of C.P.C. but also under Section 3 of the Partition Act. Section 3 of the Partition Act reads as under:

3. Procedure when sharer undertakes to buy. – (1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf. (2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court. (3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.

On a plain reading of the above provision and after going through the impugned order, I do not find any illegality. Section 3 is on a different subject matter and no petition under Section 10 of C.P.C. was filed before the Court below. Accordingly, this petition is rejected. However, the petitioners are at liberty to raise the issue of the subsequent suit being hit by the principle of sub-judice before the Court below at an appropriate stage. Consequently, I.A. No. 5505 of 2022 stands disposed of. AKT (Gautam Kumar Choudhary, J.)