Misc. Case No. 3 of 1998 · Jharkhand High Court · 2022

Sl. No.18 to 20 all sons of late Kalibala Devi 21. Sri Tarkeshwar Mandal, s/o late Gopal Mandal 22. Sri Manbodh Mandal, s/o late Dhoju Mandal 23. Sri Basudeo Mandal, s/o late Sonaram Mandal 24. Sri Babulal Mandal, s/o late Logan Mandal 25. Alka Devi, w/o late Lalu Mandal 26. Mukesh Kr. Mandal, s/o late Logan Mandal 27. Kumari Baby Mandal, d/o late Logan Mandal 1 Second Appeal No. 216 of 2014

Sri Balai Mandal, s/o late Sonaram Mandal 29. Rajendra Mandal 30. Tilak Mandal Sl. No.29 and 30 both sons of late Kalipado Mandal

Butan Mandal 32. Naren Mandal 33. Fucha Mandal Sl. No.31 to 33 all sons of late Kali Mandal

Kirtan Mandal 35. Sahdeo Mandal Sl. No.34 and 35 both sons of Murti Mandal 36. Sri Jagdish Mandal, s/o late Nanhu Mandal 37. Anand Mandal, s/o late Pashupati Mandal 38. Haripado Mandal, s/o late Nanhu Mandal 39. Shankar Mandal, s/o late Sadanand Mandal 40. Sri Rajesh Mandal 41. Sri Biren Mandal 42. Sri Tapesh Mandal Sl. No.40 to 42 all sons of late Golak Mandal 43. Sri Jaydeo Mandal, s/o late Basudeo Mandal 44. Sri Arun Mandal 45. Sri Bankim Mandal Sl. No.44 and 45 both sons of late Bhabhi Mandalani

Sri Parsuram Das 47. Sri Bashudeo Das @ Baldeo Das 48. Sri Haradhan Das Sl. No. 46 to 48 all sons of late Shankar Das

Sri Madan Mohan Das 50. Sri Haldhar Das All sons of late Inder Das

Sumri Devi 52. Sonaram Devi 53. Chando Devi 54. Subha Devi 55. Pamia Devi Sl. No.51 to 55 all d/o late Surendra Das

Narendra Das 57. Birju Das Sl. No.56 and 57 both sons of late Kunju Das

Sri Haradhan Das 59. Sri Parsuram Das 60. Sri Bashudeo Das Sl. No.58 to 60 all sons of late Shankar Das

Sri Prahalad Das 62. Sri Ashutosh Das 63. Sri Subhash Das 64. Sri Kuldeep Das 65. Sri Pradeep Das 66. Deepak Das 67. Samir Das 2 Second Appeal No. 216 of 2014 Sl. No.61 to 67 all sons of late Aklu Das

Sri Kamal Das 69. Sri Jogeshwar Das Sl No.68 and 69 both sons of late Jhagru Das

Sri Gokhul Das 71. Sri Jagdish Das 72. Sri Ram Prasad Sl. No.70 to 72 all sons of late Charka Das

Sri Hakim Mandal 74. Sri Mukund Mandal Sl No.73 and 74 both sons of late Surendra Mandal

Sri Prahalad Mandal 76. Sri Bhikhu Mandal 77. Sri Sukhdeo Mandal 78. Sri Arun Mandal Sl. No.75 to 78 all sons of Late Haripado Mandal

Most. Asati Debya w/o late Taru Mandal 80. Durga Kumar Mandal, s/o late Taru Mandal 81. Smt. Mithu Devi 82. Seopali Kumari Sl. No.81 and 82 D/o late Taru Mandal

Sir Rameshwar Mandal, s/o late Kedar Mandal 84. Sri Prakash Mandal, s/o late Kisto Mandal 85. Dhaneshwar Pd. Das 86. Niranjan Prasad Das 87. Rameshwar Prasad Das Sl. No.85 to 87 all sons of late Bhushan Das

Mahendra Pd. Das 89. Jitendra Prasad Das Sl. No.88 and 89 sons of Dhaneshwar Das

The Settlement Officer at Dhanbad, Jay Prakash Nagar, at present Zila Parishad, Dhanbad, P.O. +P.S.+ Dist. Dhanbad

Prahalad Das 92. Subhash Das 93. Ashotosh Das 94. Kuldeep Das 95. Pradeep Das 96. Deepak Das 97. Samir Das Sl. No.91 to 97 all sons of late Upomani Devi

Gendu Mandal 99. Nitai Mandal 100. Suresh Mandal 101. Nimay Mandal 102. Biren Mandal Sl. No.98 to 102 all s/o of late Bharat Mandal 103. Sri Hakim Mandal, s/o late Surendra Mandal Sl. No.1 to 103 all residents of Village Jamuatand, P.O. Kankomath, P.S. Katras, Dist. Dhanbad. 3 Second Appeal No. 216 of 2014 ... .... …. Respondents For the Appellant For the Respondents ------ : Mr. Vishal Kumar Tiwary, Advocate : Mr. Kalyan Banerjee, Advocate ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties.

This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated

06.08.2014 passed by the learned District Judge-III, Dhanbad in Title Appeal No.175 of 2009 whereby and where under, by the said concurrent judgment, the learned first appellate court dismissed the appeal filed by the defendants against the final decree prepared by the learned trial court.

The brief fact of the case is that the appellants were the defendants of Title (Partition) Suit No.60 of 1993. The Title (Partition) Suit No.60 of 1993 was preliminarily decreed on 21.06.2005 according to which the plaintiffs were found entitled for partition of the Item No.1 of Schedule- B of the plaint and it was ordered that 1/5th of the share of the plaintiff no.1 was to be carved out from the lands and to be allotted to the plaintiff no.2 who purchased 4.92 acres of land from the plaintiff no.1 through two sale deeds and it was ordered that compromise petition signed by the plaintiff no.2 and the defendant no.52 shall form part of the preliminary decree. The appellants who are the defendants in the suit did not prefer any appeal against the said preliminary decree dated

21.06.2005 and thereafter, the plaintiffs filed an application for 4 Second Appeal No. 216 of 2014 preparation of final decree. A survey knowing Pleader Commissioner was appointed. The Pleader Commissioner after spot visit and measurement allotted the lands to the plaintiff no.2 and submitted his report. Thereafter, the final decree was prepared in favour of the plaintiff no.2 as by that time the plaintiff no.1 has died. The appellants thereafter did not file any written statement in the suit but objected to the report of the Pleader Commissioner but the learned trial court rejected the objection of the appellants and accepted the report of the Pleader Commissioner and directed for preparation of the final decree and accordingly, the final decree has been prepared.

Being aggrieved and dissatisfied by the said final decree dated 13.08.2009, prepared by the learned trial court, the defendants- appellants preferred Title Appeal No.175 of 2009 in the court of District Judge-III, Dhanbad which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

The learned first appellate court considered the contention of the appellants that the final decree is not in consonance with the preliminary decree and that the Pleader Commissioner has allotted valuable lands to the plaintiff no.2 but learned first appellate court also considered the contention of the original plaintiff no.2-respondent that most valuable lands are situated inside the village and those valuable lands have been occupied by the defendants by constructing house premises and no vacant land except the lands which has been allotted to the plaintiff no.2 was available, hence, the Pleader Commissioner was left with no other alternative but to allot the only vacant lands outside the 5 Second Appeal No. 216 of 2014 village which are barren lands having less value than the lands which are used and occupied by the defendants. The learned first appellate court also took note of the fact that Title (Partition) Suit No.60 of 1993 was decreed against the appellants under Order VIII Rule 10 of Code of Civil Procedure vide the judgment and decree dated 12.02.1998 and the appellants along with 19 other respondents-defendants filed application under Order IX Rule 13 read with Section 151 of Code of Civil Procedure for setting aside the ex-parte decree which was registered as Misc.

19.08.2013. The learned first appellate court also considered that even these two appellants have no locus standi to prefer an appeal. The learned first appellate court also took note of the submissions made by the appellants before it that the appellants are no way prejudiced with lands allotted to the plaintiffs by survey knowing Pleader Commissioner as the lands allotted to the plaintiffs-respondents are not the lands purchased by them rather the appellants admitted before the first appellate court that the Original plaintiff no.1- Basni Bala Debya had 1/5th share over the suit land and the same has been allotted to the plaintiff-respondent Kanhu Singh on the basis of the sale deed executed by said Basni Bala Debya; by the survey knowing Pleader Commissioner in the light of the preliminary decree. The learned first appellate court also expressed the opinion that the conduct of the appellants even after such admission is strange that even after these admitted facts, they are questioning the report of the survey knowing Pleader Commissioner and thereafter challenging the final decree. The learned first appellate court also took note of the fact that the undisputed 1/5th share in the suit land is allotted to her and thereafter, it has been allotted to the purchaser of 7 Second Appeal No. 216 of 2014 the land by her being the plaintiff-respondent- Kanhu Singh. Thus, the learned first appellate court did not find any illegality in the same and observed that the survey knowing Pleader Commissioner has rightly arrived at the conclusion after physical verification of the suit land that most of the plots have been occupied by making houses by the defendants, and only remaining land which is lying vacant has been allotted to the plaintiff-respondent- Kanhu Singh. The learned first appellate court also took note of the fact that the contention of the appellants that the lands have been acquired for the purpose of Hirak Road is also been allotted to the plaintiffs-respondents is without any merit and such a contention is at best prejudiced the plaintiff-respondent Kanhu Singh and not the appellants in any way. Thus, taking into consideration the entire facts and circumstances of the case, the learned first appellate court dismissed the appeal.

Mr. Vishal Kumar Tiwary, learned counsel for the appellants submits that the learned trial court has committed serious error of law in recording its finding on the basis of mere presumption and assumption. Relying upon the judgment of a coordinate Bench of this Court in the case of Amit Raut vs. Kanhai Rout & Ors. reported in 2004 SCC OnLine Jhar 45, paragraph no.6 of which reads as under :- “6. Normally, in an appeal against a final decree, the second appellant Court is reluctant to interfere. Firstly, in most of the cases where the question is only one of allotment of one property or another to the sharers no question of law would arise out of the claim for allotment justifying interference. Secondly, most of the suits for partition are of ancient vintage and any interference in second appeal would tend to prolong the litigation in Court and keep the litigants out of the fruits of the decree.

Having heard the submission made at the Bar and after going through the materials in the record, the fact remains undisputed that the appellants before the first appellate court in categorical terms have admitted as has been mentioned in paragraph no.10 of the impugned judgment that the appellants are no way prejudiced with the lands allotted to the plaintiffs by the survey knowing Pleader Commissioner as the lands allotted to the respondent-plaintiff are not the 9 Second Appeal No. 216 of 2014 lands purchased by the appellants. It is not disputed that these appellants admitted before the first appellate court that Basni Bala Debya being the original plaintiff has 1/5th share over the suit land and the said land has been allotted to her by the survey knowing Pleader Commissioner in the light of the preliminary decree and then the same has been allotted to the plaintiff-respondent Kanhu Singh. There is no material in the record to suggest that there is any other vacant land apart from the lands which has been allotted to the plaintiff and which is 1/5th being 1.14 acres out of the total land of 20.73 acres. There is no material nor has even any averment been made by the appellants in the record to show that the lands allotted to the plaintiffs is more valuable than the remaining lands. In fact, the plaintiff has categorically mentioned that the remaining lands are more valuable than the lands allotted to him but the lands have been allotted to the plaintiff-respondent Kanhu Singh only because they were the only vacant lands and rest of the remaining lands are occupied by the defendants of the suit by constructing houses. There is not material in the record to suggest that the appellants ever averred before the learned trial court that there is any land apart from the lands which have been allotted to the plaintiff- respondent- Kanhu Singh which is vacant.

So far as the ratio of the judgment of Amit Raut vs. Kanhai Rout & Ors. (supra) is concerned, the facts of that case is entirely different from the facts of this case as in that case, there was no admission made by the appellants in the learned first appellate court that they have no objection to the allotment of share and secondly, the facts of that case do not disclose that the other lands except the lands allotted to 10 Second Appeal No. 216 of 2014 the defendant in that case were having construction and occupied by the other coparceners and the lands which were allotted to the concerned defendant was the only vacant land as is the case in this suit. Hence, in the considered opinion of this Court the ratio of Amit Raut vs. Kanhai Rout & Ors. (supra) is not applicable to the facts of the case.

Under such circumstances this Court do not find any illegality in the impugned judgment and decree passed by the first appellate court and there is absolutely no substantial question of law involved in this case.