Gauhati High Court
Page No.# 1/4 vs Birendra Nath Sharma And Anr on 12 June, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/4
GAHC010051692024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/99/2024
RENU DEVI AND 4 ORS
W/O LATE TULSHI NATH SHARMA,
RESIDENT OF M.D ROAD, NORTH HAIBORGAON, MOUZA TOWN, PS
SADAR DIST NAGAON, ASSAM
2: SHRI PRADIP KUMAR SHARMA
S/O LATE TULSHI NATH SHARMA
RESIDENT OF M.D ROAD
NORTH HAIBORGAON
MOUZA TOWN
PS SADAR DIST NAGAON
ASSAM
3: SHRI SWAPNA BHATTACHARJEE
D/O LATE TULSHI NATH SHARMA
RESIDENT OF M.D ROAD
NORTH HAIBORGAON
MOUZA TOWN
PS SADAR DIST NAGAON
ASSAM
4: ON THE DEATH OF MANI SHARMA
HIS LEGAL HEIRS KABITA SHARMA
W/O LATE MANI SHARMA
RESIDENT OF M.D ROAD
NORTH HAIBORGAON
MOUZA TOWN
PS SADAR DIST NAGAON
ASSAM
5: NITIKSHA SHARMA
Page No.# 2/4
D/O LATE MANI SHARMA
RESIDENT OF M.D ROAD
NORTH HAIBORGAON
MOUZA TOWN
PS SADAR DIST NAGAON
ASSAM
6: SHRI HEM KANTA SHARMA
S/O LATE SURENDRA NATH SHARMA @ CHAKIRAM SHARMA
RESIDENT OF M.D ROAD
NORTH HAIBORGAON
MOUZA TOWN
PS SADAR DIST NAGAON
ASSA
VERSUS
BIRENDRA NATH SHARMA AND ANR.
S/O LATE SURENDRA NATH SHARMA @ CHAKIRAM SHARMA,
RESIDENT OF CHALIHA NAGAR DEVELOPMENT AREA, PO AND PS
TINSUKIA, MOUZA AND DIST TINSUKIA, ASSAM
PRESENTLY RESIDING AT LAUKHOWA ROAD, NORTH HAIBORGAON, PS
SADAR, MOUZA TOWN, DIST NAGAON, ASSAM
2:THE ASSAM STATE CO OPERATIVE APEX MARKETING SOCIETY
REPRESENTED BY ITS LIQUIDATOR
STATEFED KRISHI BHAWAN
KHANAPARA
GUWAHAT
Advocate for the Petitioner : N CHAUDHURY
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
12.06.2024
Heard Shri B.D. Deka, learned counsel for the appellants, who by means of this
Page No.# 3/4
appeal preferred under Section 100 of the Code of Civil Procedure has assailed the
Judgment and Decree dated 11.12.2023 passed by the learned District Judge, Nagaon
in Title Appeal No. 01(N)/2020.
It is submitted that the cause of action espoused in the suit was not only
confined to a decree of partition but had also challenged the revenue partition which
was made earlier in favour of the defendant. As regards the provisions of Order II
Rule 2 of the CPC, the learned counsel for the petitioners has submitted that the
restrictions may come into operation only in case of a subsequent suit and may not be
an absolute bar for adjudication of the suit of the present nature. The learned counsel
has also relied upon the case of the Hon'ble Supreme court in B.R. Patil vs. Tulsa Y.
Sawkar and Ors. reported in 2022 SCC Online SC 240 wherein the Hon'ble Supreme
Court by referring to the Mayne's 'Treartise on Hindu Law & Usage' 17 th Edition had
made certain observations on the said aspect.
The portion of the aforesaid Treartise which has been quoted in paragraph 10 of
the aforesaid judgment would however clearly show that the exceptions to the Rule
that a partition suit should embrace all properties are on certain eventualities only.
It is further submitted that without there being a specific issue on the
maintainability of the suit, the dismissal of the suit on the maintainability ground has
caused prejudice to the appellants- plaintiffs.
The appeal is admitted on the following substantial question of law.
"Whether the prayer for partial partition of the appellants / plaintiffs could
be rejected on the ground of non-inclusion of all the ancestral properties
in the suit?
This Court may frame any other substantial question of law involved in the case
that may arise after notice of the parties.
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Let steps be taken for service of notice upon the respondents including the
proforma respondents by usual process.
Steps within 3 (three) days.
List this matter after 6 (six) weeks.
JUDGE
Comparing Assistant
