) Rajan Kumar Sharma v. Vijay Kumar Sharma

trial court decreed the suit of the plaintiff preliminarily holding that the plaintiff is entitled to 1/4th share of the suit property.

3. The brief facts of the case is that the plaintiff filed the Original Title (P) Suit No. 121 or 2016 in the Court of learned Civil Judge (Senior Division V) Jamshedpur with a prayer for passing preliminary decree for declaration and partition of 1/4th share of the plaintiff over the Schedule A property of the plaint and for appointment of the Survey Knowing Pleader Commissioner to demarcate the shares so that the final decree can be prepared; along with the cost and other reliefs in his favour.

4. The case of the plaintiffs in brief is that the parties to the suit are governed by Mitakshara School of Hindu law and Ramakrishna Sharma was the common ancestor of the parties being the father of the plaintiff as also the father of defendant no. 1. Ramakrishna Sharma obtained the suit property in the public auction on 15.03.1955 and the suit land was sub-leased in favour of Ram Krishna Sharma for residential purpose by M/s Tata Steel and during his lifetime, Ramakrishna Sharma constructed five rooms and made construction over the same and remained in peaceful possession of same. Ramakrishna Sharma died in the year 1983 leaving behind his widow – Asha Rani, his three sons, the plaintiff, the defendant no. 1, the defendant no. 3 is his daughter, his widow Asha Rani and representatives of his son Deepak Kumar Sharma. The three sons and one daughter of Ramkrishna Sharma and 2 SA No. 174 of 2023 their successors continued in joint possession of the property after death of Ramakrishna Sharma. The plaintiff and the original defendant no. 2 used to visit their mother and took care of her and subsequently the mother of the plaintiff namely Asha Rani, who was also the widow of Ramkrishna Sharma, died. The plaintiff took voluntary retirement from his service and as he wanted accommodation hence a memorandum of family settlement was executed between the parties; which contention of the plaintiff of course, is denied by the defendant no. 1. In their written statement, the original defendant no. 2 and 3 supported the contention of the plaintiff but the defendant no. 1 denied memorandum of family settlement. The defendant no. 1 refused to make partition. The defendant number 4, M/s Tata Steel being the proforma defendant also filed a written statement and pleaded that the suit is not maintainable on various technical grounds. The defendant no. 1 in his written statement besides challenging the maintainability of the suit on various technical grounds, further pleaded that according to the defendant no. 1, the plaintiff and the defendant nos. 2 and 3 agreed in writing by putting their respective signatures that they will pay Rs.8,00,000/- to the defendant no. 1 but subsequently, they declined. The defendants pleaded that an amicable partition has already been made.

5. Learned trial court on the basis of the pleadings of the parties, framed the following four issues:- i. Whether the suit is maintainable in its present form and the ii. iii. plaintiff has got valid cause of action for the suit? Whether the plaintiff and defendant no. 1, 2 and 3 are entitled for preliminary decree of partition of their 1/4th share under the suit premises described in schedule A of the plaint ? Whether the plaintiff and defendant no. 1, 2 and 3 are for appointment of survey knowing pleader entitled 3 SA No. 174 of 2023 commissioner to carve out and demarcate their 1/4th share of each from the suit land as per preliminary decree and on the basis of the report of pleader commissioner, final decree can be made? Whether the plaintiff is entitled for any other relief or reliefs for which he found entitled under the law and equity? iv.

6. In support of his case, the plaintiff examined two witnesses and proved the letter issued by M/s Tata Steel Limited, which have been marked as Ext. 1. The defendants did not produce any oral or documentary evidence and only filed the examination-in-chief of one witness but as he did not turn up for his cross- examination hence the evidence of the said witness was not considered.

7. Learned trial court first took up issue no. (ii) and after considering the evidence in the record, came to the conclusion that the plaintiff has 1/4th share over the suit property and the defendant no. 1, 2 series and 3, each has one 1/4th share over the suit property and answered the issue no. (ii) accordingly.

8. Learned trial court next took up issue nos. (iii) and in view of its finding of issue number (ii) answered the same in the affirmative.

9. Learned trial court next took up issue nos. (iv) and after considering the evidence in the record, held that the plaintiff is entitled only for preliminary decree of partition.

10. Learned trial court lastly took up issue no. (i) and held that the suit is maintainable in its present form and there has not been any prior partition between the parties, before filing the suit by metes and bounds and decreed the suit, as already indicated above.

11. The defendant no. 1 filed Civil Appeal no. 09 of 2022 in the court of learned Principal District Judge, Jamshedpur and the valuation of the appeal was also made at Rs. 48 4 SA No. 174 of 2023 lakhs. The appeal was heard and disposed of by learned District Judge, IV, Jamshedpur. Learned First Appellate Court, basing upon the materials available in the record and the submissions made before it, formulated the following two points for determination

1. Whether the plaintiff is entitled for 1/4th share of the suit land and pleader commissioner can be appointed to demarcate the share of plaintiff ?

2. Whether the findings of the learned lower court is sustainable or not ?

12. Learned First Appellate Court first took up the point for determination no. ‘1’ and after making independent appreciation of the evidence in the record took note of the fact that the defendant–appellant, before learned First Appellate Court did not produce any oral or documentary evidence in support of his case. The relationship was undisputed between the parties and the sub-lease of the suit land continued to be in the joint names of the plaintiff and the original defendant nos. 1 to 3 and went on to decide the point for determination no. 1 in favour of respondent no. 1.

13. Learned First Appellate Court next took up the second point for determination and after considering the evidence in the record came to the conclusion that learned trial court has considered all the aspects of the case and arrived at the right conclusion and answered the issue in the negative and dismissed the appeal by holding and confirming the judgment and decree passed by the trial court.

14. Learned counsel for the appellants submits that learned First Appellate Court committed a grave error in entertaining the appeal which was valued at Rs. 48 lakhs whereas it has the jurisdiction to entertain the appeal having maximum value of Rs. 25,00,000/- only hence, it 5 SA No. 174 of 2023 is submitted that the impugned judgment having been passed by learned First Appellate Court being without any pecuniary jurisdiction, the same is liable to be quashed and set aside after formulating the appropriate substantial question of law.

15. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the issues raised by the learned counsel for the appellant is no more res integra. This is undisputedly a case where the defendant- appellant voluntarily approached the Principal District Judge with his eyes open. He never raised the issues of learned First Appellate Court not having the pecuniary jurisdiction to try the appeal. Learned First Appellate Court has passed the judgment on merit when the appellant voluntarily submitted to his jurisdiction. It is pertinent to mention here that the appellant- defendant has not pleaded any prejudice having been caused to it except that learned First Appellate Court was not having the pecuniary jurisdiction to entertain the appeal filed by the appellant defendant in a court. A Bench of the Hon’ble Supreme Court of India consisting of four Hon’ble Judges, had the occasion to Consider the issue in the case of Kiran Singh and Others v. Chaman Paswan and Others reported in AIR 1954 SC 340, para 7 of which reads us under : “7. Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure an objection that a Court which had no jurisdiction over a suit or appeal had exercised it by reason of over- valuator or under-valuation, should not be entertained by an appellate court, except as provided in the Section. Then follow provisions as to when the objections could be entertained, and how they are to be dealt with. The drafting of the Section has come in - and deservedly-for considerable criticism; but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for over- valuation or under-valuation, is not to be treated as, what it would be but for the Section, and void, and that an objection to jurisdiction based on over-valuation or under-valuation, should be dealt with under that Section and not otherwise. The reference to Section 578, now Section 99, C.P.C., in the opening words of the Section is significant. That Section, while providing that no 6 SA No. 174 of 2023 decree shall be reversed or vaired in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them locked jurisdiction as a result of over-valuation or under- valuation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or under-valuation shall not be entertained by an appellants Court except in the manner and to the extent mentioned in the Section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C. P. C. and Section 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgement rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.” (Emphasis supplied) and held that while considering the policies underlining inter alia Section 21 of the Code of Civil Procedure and Section 11 of the Suit Valuation Act; which is to the effect that when a case has been tried by a court on the merit and the judgment rendered, it should not be liable to be reversed purely on technical grounds unless it has resulted in failure of justice and the policy legislature has been treat objection to jurisdiction both territorial and pecuniary as technical and not open to consideration by the appellate court unless there has been a prejudice on the merit. The Hon’ble Supreme Court of India in the case of R.S.D.V. Finance Co. Pvt. Ltd vs. Shree Vallabh Glass Works Ltd. reported in AIR 1993 SC 2094, has dealt with similar civil matter by holding that when there is no failure of justice, no objection as to place of suing can be allowed to be taken for the first time by any appellate court or revisional court. 7 SA No. 174 of 2023

16. The matter was also before the Division Bench of Hon’ble Patna High Court in the case Smt. Baba Dai v. Muneshwar Jha and Others reported in AIR 1985 Pat 67, para 5 of which reads as under :- “5. I have, therefore, no hesitation in holding that having failed to raise any objection to the District Judge hearing the appeal and having ventured to take the risk of obtaining a successful result, it is not open to the appellant now to raise the lack of pecuniary jurisdiction of the appellate Court as a point of law without being able to show that they suffered any prejudice as required by S.11 of the Suits Valuation Act, I may also state that the judgment of the appellate Court was not assailed on merit within the scope required by Ss.100 and 103 of the Code of Civil Procedure. No other error of law was pointed out nor was anything brought to our notice which would indicate to show that the appellant suffered any prejudice on merit.” (Emphasis supplied) wherein in the facts of that case when the defendant failed to raise any objection as to pecuniary jurisdiction of lower appellate court hearing the appeal and ventured to take risk of obtaining a successful result, it is not open to him in Second Appeal to raise the plea of lack of pecuniary jurisdiction of learned appellate court; without being able to show that he has suffered any prejudice on merits.

17. In view of the settled principle of law and as the facts of this case are same like the facts of the case of Smt. Baba Dai v. Muneshwar Jha and Others (supra), as the appellant never raised the issue of pecuniary jurisdiction before the first appellate court; this court has no hesitation in holding that, as in this case the plaintiff voluntarily filed the appeal knowing pretty well that learned Principal District Judge or the District Judge, IV Jamshedpur was not having the pecuniary jurisdiction but took the risk of obtaining a favourable result but the result went otherwise and as already indicated above, the appellant has failed to show that he suffered any prejudice in any manner, this Court has no hesitation in holding that there is any scope for the appellants for 8 SA No. 174 of 2023 agitating the contention of lack of pecuniary jurisdiction of learned District Judge, IV Jamshedpur in passing the impugned judgment on merits in Civil Appeal No. 9 of

18. Thus, this appeal being without any merit is dismissed.

19. Let a copy of this Judgment be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 28th October, 2024 Smita /AFR 9 SA No. 174 of 2023