Jharkhand High Court
Damodar Mahto & Ors vs Shiv Sharan Mahato & Ors on 11 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Appellate Jurisdiction]
S.A. No. 148 of 2008
Damodar Mahto & Ors. .... .. ... Appellant(s)
Versus
Shiv Sharan Mahato & Ors. .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant(s) : Mr. S. N. Das, Advocate.
Mr. Ashish Sahu, Advocate
For the Respondent : Mr. A. K. Das, Advocate
..........
12 / 11.02.2021. Heard, learned counsel for the appellants.
2. The present Second Appeal has been preferred against the judgment and
decree dated 16.04.2008 (decree sealed and signed on 29.04.2008) passed by learned
Addl. District Judge, F.T.C. 1St, Dhanbad in Title Appeal No.53 of 2006 whereby the
appeal was dismissed and confirmed the judgment and decree dated 28.02.2006
passed by Sub Judge 1st, Dhanbad in Title (Partition) Suit No.182 of 2002.
3. Learned counsel for the appellants, Mr. S. N. Das has submitted that Jaychand
Mahto was the defendant in the suit and the legal heirs of Jaychand Mahto are
defendant Nos.1/a to 1/f. The trial court has decided the issue Nos.V, VI and VII in
favour of these defendants by holding that from the documentary evidence as well as
oral evidence of the parties, it is clear that partition has been done amongst the heirs
of Jodharam Mahato and they have got share and they have possession over the land
according to share. The disputed land is in share of Chhutu Mahato, who was father
of defendant No.1. This issue was decided against the original plaintiff i.e. Shiv
Sharan Mahato (respondent No.1 herein), but in favour of defendant No.1 i.e. father
of defendant No.1/a to 1/e and widow of defendant No.1 i.e. 1/f.
4. Learned counsel for the appellants while assailing the impugned judgment and
decree has submitted that the learned Lower Appellate Court in an appeal preferred
by the plaintiff No.1 vide Title Appeal No.53 of 06 and plaintiff Nos.2 and 4 vide
Tittle Appeal No.50 of 2006, held on the admission made by the plaintiffs/appellants
before the lower Court set aside the impugned judgment without taking notice of the
fact that there was a previous partition in the family, the schedule land in the District
Dhanbad P.S. Dhanbad Pargna Jharia Mouza Dhanbad No.51 under Khata No.44 Plot
No.2280 area 1.10 decimal and Plot No.2281 area only 50 decimal, i.e. total area
measuring 1.60 decimals is allotted to the original defendant No.1- Jaychand Mahto.
5. Learned counsel for the appellants has further submitted that original
defendant No.1, Jay Chand Mahato filed Title Suit No.15 of 1989 against the
Dhanbad Municipality and its official in the court of Sub Judge 1 st, Dhanbad which
was subsequently transferred to the court of Sub Judge V, Dhanbad. The suit was
decreed in favour of Jay Chand Mahato, plaintiff of Title Suit No.15 of 1989 vide
judgment and decree passed by learned Sub Judge V, Dhanbad on 10.06.1999
confirming the right, title, interest and possession of defendant No.1.
6. Learned counsel for the appellants has further submitted that Dhanbad
Municipality has preferred an appeal before the Court of learned District Judge,
Dhanbad, vide Title Appeal No.31/99. The same was admitted and transferred to the
Court of learned Addl. District Judge-II, Dhanbad and the Title Appeal has been
dismissed vide judgment dated 03.03.2001.
The Dhanbad Municipality thereafter preferred Second Appeal before the
Hon'ble High Court of Jharkhand at Ranchi, in Second Appeal No.48 of 2001 which
was also dismissed by a Co-ordinate Bench of this Court on 25.07.2001. The
Dhanbad Municipality preferred Special Leave Petition before the Hon'ble Supreme
Court being S.L.P. No.4566/02 which was dismissed on 09.03.2002, as such, the
indefeasible right, title and interest of defendant No.1 which has been affirmed upto
the Apex Court has been taken away by the learned Lower Appellate Court while
deciding the issue Nos.5, 6 and 7 on the ground that Partition Suit No.181 of 2002
preferred by Sheo Sharan Mahato and others and against Damodar Mahato and Ors.,
was bad for misjoinder and nonjoinder of the parties and thus, the learned Lower
Appellate Court has erred in holding that trial court once came to the finding that
suit is bad for nonjoinder of necessary parties, then it should not have decided the
other issues on merits. The finding of the trial court on the issue Nos.I, II, III, V, VI,
VII & VIII is hereby set aside though the appeal has been dismissed by the learned
lower Appellate Court.
7. Learned counsel for the appellants in support of his submission has placed
Order XIV Rule 2 C.P.C. and submitted that the Court has to pronounce the judgment
on all issues except when the issues are on the point of jurisdiction of the Court or a
bar to the suit created by any law for the time being inforce, then only such principles
can be adopted. But in the present case, the learned Lower Appellate Court has
completely misunderstood the case and set aside the finding recorded by the learned
trial court, which was in consonance with the judgment passed in earlier suit affirmed
till the apex Court.
8. Considering such aspect of the matters, this Court is inclined to admit this
Second Appeal, on substantial questions of law involved in the Second Appeal.
9. Accordingly, this Second Appeal be admitted on the following substantial
questions of law :-
(i)Whether the finding recorded by learned trial court in Title Suit No.15 of
1989 affirmed in Title Appeal No.31 of 1999, Second Appeal No.48 of 2001
and S.L.P. No.4566 of 2002 are not binding upon the parties?
(ii)Whether the Lower Appellate Court while considering non-joinder of the
parties as a basic issue is not disturbing the finding of the previous litigation
affirmed upto the Apex Court?
(iii)Whether the learned Lower Appellate Court has committed an error of law
in understanding order XIV Rule 2 CPC while setting aside the finding
recorded by the learned trial Court with respect to issue Nos.I, II, III, V, VI,
VII and VIII?
10. So far the other substantial questions of law is concerned, learned counsel for the
appellants is at liberty to frame any other substantial questions of law at the time of
"Final Hearing" of the instant Second Appeal.
11.Call for the Lower Court Records.
12. Learned counsel for the respondents, Mr. A. K. Das accepts notice on behalf of
respondent Nos.1, 3, 6, 7, 8, 9, 12, 13, 15, 16, 17.
13. Further, respondent No.20 has appeared through learned counsel, Md. Belal and
Ms. Sunita Kumari.
13. Further as per office notes, it appears that respondent Nos.2, 4, 5, 6, 10, 11, 14, 18
and 19 have not put appearance.
Under the circumstances, appellants are directed to take steps for fresh service
of notice upon respondent Nos. 2, 4, 5, 6, , 10, 11, 14, 18 and 19 under both process
i.e. under Registered Cover as well as under Ordinary Process, for which, requisites,
talbana etc., must be filed within two weeks.
(Kailash Prasad Deo, J.)
Sandeep/
