Teju Mian vs Etwariya Kuer
2021 Latest Caselaw 2274 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    [Civil Appellate Jurisdiction]
                           S.A. No. 302 of 2015
        1.Teju Mian
        2.Dildar Mian @ Musa Mian
        3.Jawatri Bibi
        4.Bechan Mian
        5.Kharidan Mian                                             .... .. ... Appellant(s)
                                     Versus
         1.Etwariya Kuer
         2.Anil Mahto
         3.Sunil Mahto
         4.Sri Devi
         5.Birahim Mian
         6.Roza Mian
         7.Deomania Bibi
         8.Suleman Mian
         9.Waliuddin Mian
        10.Allauddin Mian
        11.Charku Mian
        12.Qudrat Mian
        13.Zahoor Mian
        14.Nanhu Mian
        15.Madin Mian
        16.Sudin Mian
        17.Ismail Mian
        18.Sharif Mian
        19.Imaman Mian                                   .. ... ... Respondent(s)
                          ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........

For the Appellant(s) : Mr. Shailendra Kumar Singh, Advocate.

      For the Respondent(s)                  :
                          ..........

08/ 08.07.2021. Heard, learned counsel for the appellants, Mr. Shailendra Kumar Singh

The instant Second Appeal has been preferred against the judgment dated 27.03.2015 and decree sealed and signed on 10.04.2015, passed by learned District Judge-V, Palamau at Daltonganj, in Partition Appeal No.39/2007 whereby the judgment dated 12.08.1998 and decree sealed and signed on 29.08.1998 passed by learned Sub-ordinate Judge III, Palamau, Daltonganj, in Partition Suit No.48 of 1993 has been affirmed.

Mr. Shailendra Kumar Singh, learned counsel for the appellants has submitted that a suit vide Partition Suit No.48 of 1993 had been filed by the plaintiff- Ram Dayal Mahto for partition of part of the property detailed in Schedule A & B of the plaint, which relates to land of Village- Kanke Khurd, Khata No.25 and suit land of Village- Kanke Kallan, Khata No.58, both within P.S. Paton, District- Palamau. The land of Khata No.25 was recorded in the

names of (1) Leyakat Hussain Mian, (2) Iltaf Mian @ Teni Mian (3) Pahalwan Mian, (4) Mahboob Mian @ Mahmood Mian and (5) Mohamd Ali Mian, all sons of Late Zakir Mian, having one share and Enayat Mian, Shefait Mian and Velayat Mian, Sons of Lango Mian having one share and Amarakh Mian, S/o Atiman Mian having one share. The land of Khata No.58 stands recorded in the names of Leyakat Hussain Mian, Eltalf @Teni Mian, Pehalwan Mian. Mahboob @ Mabmood Mian and Mohammad Ali Mian, all sons of Late Zakir Mian, having equal share. All the appellants/defendants in the instant appeal as well as in the first appellate court, are the descendants of recorded tenants of Khata Nos.25 and

58.

Mr. Shailendra Kumar Singh, l earned counsel for the appellants has further submitted that Partition suit has been decided ex-parte as the defendants/appellants/appellants did not appear before the learned trial court. The partition suit was decided ex-parte against the defendants on 12.08.1998 and thereafter the decree was prepared on 29.08.1998. Against the said decree of learned Sub-ordinate Judge III, Palamau, Daltongaj, the defendants/appellants had preferred Partition Appeal No.39/2007 before the court of learned District Judge-V, Palamau at Daltonganj. The said suit has been dismissed holding that preliminary decree and as per report of Batwara Commissioner and its Takhta Bandi no illegality or irregularity in the final decree dated 19.06.2007 has been pointed out. As such, the final decree passed by the learned Lower court is legal, valid and required no interference by this Court.

Mr. Shailendra Kumar Singh, learned counsel for the appellants has assailed the impugned judgment and decree of both the courts below and submitted that wrong finding has been given by the learned Trial Court with regard to common ancestor, as such, the impugned judgment and decree passed by the both the courts below are bad in law.

After hearing learned counsel for the appellants and after perusing the materials available on record, it appears that the finding on facts cannot be interferred by this Court sitting in Second Appeal under Section 100 CPC. Both the courts below have already given a concurrent finding with regard to the facts that the parties are descendants of the common ancestor, as such, no interference is required on this issue, which is based on facts.

As such, in view of the judgment passed by the Apex Court in the case of Gurnam Singh (Dead) by Legal Representatives and Ors. vs. Lehna Singh

(Dead) by Legal Representatives, reported in (2019) 7 SCC 641 and also in view of the fact nothing has been pointed out by the appellants to suggest that there is substantial question of law involved in the present Second Appeal filed under Section 100 CPC, as such, no interference is required by this Court.

Accordingly, the instant Second Appeal being devoid of any merit is hereby dismissed.

(Kailash Prasad Deo, J.) sandeep