Krishna Gorai vs Kistopada Gorai
2021 Latest Caselaw 4285 Jhar

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      C.M.P. No. 164 of 2021
1. Krishna Gorai
2. Ram Gorai
3. Sumitra Gorai
4. Bharu Gorai                                ..... Petitioners
                              Versus
1. Kistopada Gorai
2. Kinkar Gorai
3. Raybala Dasi
4. Niranjan Gorai @ Mansa Gorai
5. Sunil Gorai @ Leda Gorai
6. Dayamay Gorai @ Lusu Gorai
7. Susila Bala Dasi
8. Saribal Gorai
9. Mangan Gorai
10. Phanilal Gorai
11. Nawani Gorai
12. Bhani Bala Dasi
13. Dipali Bala Dasi
14. Sepali Bala Dasi
15. Henali Bala Dasi
16. Uttar Gorai
17. Dakhin Gorai
18. Kunti Bala Dasi
19. Sourandhi Bala Dasi
20. Chaina Bala Dasi
21. Kalibala Dasi
22. Mathur Gorai
23. Sapan Gorai
24. Palani Gorai
25. Labru Gorai
26. Pravakar Gorai
27. Chhabi Bala Dasi
28. Subodh Gorai
29. Narayan Gorai
30. Phuchu Gorai
31. Balram Gorai
32. Chitnibala Dasi
33. Yadav Gorai
34. Labru Gorai
35. Labi Bala Dasi
36. Ani Bala Dasi
37. Jatu Gorai
38. Indrajit Gorai
39. Nuni Bala Dasi
40. Khali Bala Dasi
41. Paribala Dasi
42. Mangli Bala Dasi
43. Sungi Bala Dasi
44. Ketibala Dasi
45. Juni Bala Dasi
46. Sindhu Bala Dasi
47. Saribala Dasi
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            48. Dasrath Gorai
            49. Putu Bala Dasi                                           ..... Respondents
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioners: Mr. N. P. Choudhary For the Respondents:

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05/20.11.2021 The case is taken up through Video Conferencing.

2. The present C.M.P has been filed for quashing the order dated

26.03.2021 passed by the Civil Judge (Sr. Div.)-I, Jamtara in Execution Case No.

03 of 1988 arising out of Title Suit No. 67 of 1970 whereby the said Court has

dismissed the petition dated 31.08.2018 filed by the petitioners seeking stay of

the proceeding of Execution Case No. 03 of 1988 and reallocation of 1/4th share

of the suit properties mentioned in Schedule A & B of the Plaint in favour of the

petitioners.

3. The factual background of the case, as stated in the present C.M.P, is

that the plaintiffs/decree holders/contesting respondents filed a suit bearing

Title Suit No. 67 of 1970 in the Court of the Sub-Judge, Jamtara seeking

declaration that the adoption of the defendant No.2, namely, Nepal Gorai by the

defendant No.1 (Radhika Bala Dasi) is invalid and prayed for cancellation of the

alleged deed of adoption. The said suit was ultimately decreed in favour of the

plaintiffs vide judgment dated 21.09.1987 and decree dated 09.11.1987.

Aggrieved thereby, the petitioners' father, namely, Nepal Gorai (original

defendant No.2) filed an appeal being Title Appeal No. 45 of 1987 before the

learned District Judge, Dumka, however, the same was also dismissed vide

judgment dated 28.09.1992. Thereafter, Nepal Gorai (the petitioners' father)

preferred second appeal before the Patna High Court being Second Appeal No.

454 of 1992. The said second appeal was admitted after formulating the

substantial question of law to the limited extent as to whether the finding that

Nepal Gorai (appellant) was not entitled to inherit the properties of his father

Bhim Gorai as recorded in para-18 of the judgment of the lower appellate Court

is correct and sustainable in law. The said second appeal was subsequently

allowed by this Court vide judgment dated 18.12.2014 holding that Nepal Gorai

was the son of Bhim Gorai and he should not be debarred from inheriting the

properties of his biological father-Bhim Gorai. Thus, the finding of the learned

Court below was set aside to the extent that Nepal Gorai was not entitled to

inherit the properties of his father-Bhim Gorai. Since the said judgment did not

clarify as to whether Nepal Gorai was entitled to inherit the properties of

Radhika Bala Dasi, Nepal Gorai preferred Civil Review No. 89 of 2015 before this

Court to clarify the said point. However, the same was dismissed as withdrawn

vide order dated 06.07.2018 giving liberty to Nepal Gorai to file an appropriate

petition before the executing Court to resist the execution with further direction

to the executing Court that if such petition is preferred by Nepal Gorain, the

same would be considered on its own merit. Thereafter, Nepal Gorain died and

was subsequently substituted by the petitioners (the legal heirs of Late Nepal

Gorai), who filed petition dated 31.08.2018 in Execution Case No. 03/1988

before the executing Court raising all their pleas, however, the same was

dismissed by the said Court vide the impugned order dated 26.03.2021. Hence,

the present C.M.P.

4. Learned counsel for the petitioner submits that the original plaintiff Nos.

1 to 3 (Nakul, Arjun and Daru) and Bhim Gorai-the defendant No.3 (the father

of Nepal Gorai) were the sons of Ananda Gorai. The plaintiff No.4, namely,

Kutur Gorai was the son of Binanda Gorai (one of the brothers of Ananda

Gorai). All of them are entitled to inherit the properties of Radhika Bala Dasi,

who was the surviving widow of Aju Gorai (one of the brothers of Ananda Gorai)

after the death of his another widow, namely, Giribala. It is further submitted

that Nepal Gorai S/o Bhim Gorai was adopted by the widow of Aju Gorai,

namely, Radhika Bala Dasi. However, the learned Court below has erroneously

held that only the plaintiffs/respondents are entitled to inherit the properties of

Radhika Bala Dasi. It is further submitted that Aju Gorai and Ananda Gorai were

the full brothers and the sons of Hriday Gorai and hence Bhim Gorai-father of

Nepal Gorai, was also entitled to inherit the properties left by Radhika Bala Dasi.

The trial Court as well as the first appellate Court have erroneously held that

only the plaintiffs are entitled to inherit the properties left by Radhika Bala Dasi

and as such the finding of the learned Courts below are perverse. It is further

submitted that the plaintiffs as well as the defendants are equally entitled to

inherit the properties left by Radhika Bala Dasi. It is also submitted that Nepal

Gorai had built a house with a tiled roof over the suit land and was residing in

the said house with all his family members for last several years and he had no

other house to reside. The said fact has also been admitted by the witnesses

examined in the suit.

5. Heard learned counsel for the petitioners and perused the relevant

materials available on record. The petitioners are claiming the share in the

properties of Radhika Bala Dasi being the sons of Late Nepal Gorai contending

that their grand-father, namely, Bhim Gorai was equally entitled to inherit the

said properties along with the plaintiffs/decree holders. The learned Court below

has observed in the impugned order dated 26.03.2021 that the trial Court as

well as the first appellate Court have held that Nepal Gorai was not the legally

adopted son of Aju Gorai and the said finding has not been set aside by this

Court in Second Appeal No. 454 of 1992.

6. The learned Court below has also held that the properties of Radhika

Bala Dasi, as mentioned in the Schedules of Title Suit No. 67/1970, never

devolved upon Bhim Gorai-the natural father of Late Nepal Gorai on account of

the fact that Bhim Gorai had already died during the life time of Radhika Bala

Dasi, hence, Late Nepal Gorai did not fall in the line of the nearest successor of

Radhika Bala Dasi and was not legally competent to inherit her properties on the

pretext that the same had already devolved upon him. It has also been

observed by the learned Court below that had Bhim Gorai died after the death

of Radhika Bala Dasi, her properties would have certainly devolved upon Late

Bhim Gorai and after his death, on his natural son-Late Nepal Gaorai, however,

the factual position in the present case is entirely different. As such, the

petitioners being the legal heirs of Late Nepal Gorai cannot claim that they are

legally entitled to inherit the properties of Radhika Bala Dasi.

7. It would be relevant to refer to certain judgments of the Hon'ble

Supreme Court whereby scope of interference with the orders of the

Courts/Tribunals by a Writ Court under Article 227 of the Constitution of India

has been explained.

8. In the case of Gulshera Khanam Vs. Aftab Ahmad reported in

(2016) 9 SCC 414, the Hon'ble Supreme Court has held as under:-

"33. Likewise, when we peruse the impugned judgment, we find, as rightly urged by the learned counsel for the appellant, the High Court did not keep in mind the aforesaid principle of law laid down by the Constitution Bench in [Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78] so also the principle laid down by this Court in relation to exercise of jurisdiction under Article 227 of the Constitution of India in [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] , while deciding the writ petition and proceeded to decide like the first appellate court. The High Court as is clear from the judgment probed all factual aspects of the case, appreciated evidence and then reversed the factual findings of the appellate court and the prescribed authority. This, in our view, was a jurisdictional error, which the High Court committed while deciding the writ petition. In other words, the High Court, in our view, should have confined its inquiry to examine as to whether any jurisdictional error was committed by the first appellate court while deciding the first appeal. It was, however, not done.

34. In our considered opinion, the question in relation to the bona fide need of the appellant's daughter to expand the activities of running the clinic was rightly held by the prescribed authority and the first appellate court in the appellant's favour by holding the appellant's need to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that findings of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced, etc."

9. In the case of State through Special Cell, New Delhi Vs. Navjot

Sandhu alias Afshan Guru & Ors. reported in (2003) 6 SCC 641, the

Hon'ble Supreme Court has held as under:-

"28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise".

10. Thus, the finding of fact arrived at by the Courts/Tribunals cannot be

interfered while exercising the writ jurisdiction under Article 227 of the

Constitution of India, which is more or less akin to revisional jurisdiction of the

High Court, unless the findings of the Courts are so perverse that any judicial

person could never reach such a conclusion or that the findings are against any

provision of law or are contrary to evidence available on record etc. The power

of judicial superintendence, under Article 227, must be exercised sparingly and

only to keep subordinate Courts and Tribunals within the bounds of their

authority and not to correct mere errors.

11. In the present case, learned counsel for the petitioners has failed to

controvert the factual observation given by the learned Courts below to the

extent that the grand-father of the petitioners had died before the death of

Radhika Bala Dasi. Though learned counsel for the petitioners has submitted

that the petitioners are entitled to inherit the properties in question, yet he has

not been able to show any legal infirmity in the impugned order dated

26.03.2021. The petitioners have also failed to show any legal provision in

support of their claim over the suit properties controverting the observations

made by the learned Courts below.

12. Under the aforesaid facts and situation, I do not find any infirmity in the

impugned order dated 26.03.2021 passed by the Civil Judge (Sr. Div.-I),

Jamtara in Execution Case No. 03 of 1988 arising out of Title Suit No. 67 of

1970 so as to interfere with the same while exercising supervisory jurisdiction

under Article 227 of the Constitution of India.

13. The present writ petition is, accordingly, dismissed.

Satish/A.F.R                                                           (RAJESH SHANKAR, J)