Jharkhand High Court
Babar Khan vs Aminjama Khan on 15 February, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4575 of 2017
1. Babar Khan
2. Md. Samim Khan
3. Fahim Khan
4. Altaf Hussain @ Altaf Hussain Khan
5. Ajam Khan
6. Jawed Akhtar @ Munna Khan
7. Sabir Khan
8. Jafar Khan
9. Anjum Parween
10. Md. Islamul Haque
11. Ikramul Khan
12. Inamul Khan
13. Md. Ibrahim Khan
14. Gafar Khan
15. Munna Khan
16. Imtiyaz Khan
17. Noor Alam Khan ... ... Petitioners
Versus
1. Aminjama Khan
2. Fulmani Manjhain
3. Sadanand Mandal
4. Kashinath Mandal
5. Duryodhan Rewani
6. Balika Devi
7. Ritu Devi
8. Pazwaha Khatoon
9. Indalal Khan
10. Meharun Khatoon
11. Jadiya Khatoon
12. Kaili Khatoon ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. R.N. Sahay, Sr. Advocate
Mr. Yashvardhan, Advocate
For the Respondents :
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Order No. 03 Dated: 15.02.2022
The writ petition is taken up today through Video
conferencing.
The present writ petition has been filed for quashing and
setting aside the order dated 06.06.2017 (Annexure-2 to the writ
petition) passed by the learned Civil Judge (Sr. Division)-II, Dhanbad
in Final Decree No. 03 of 2013 [arising out of Title (Partition) Suit No.
24 of 1986], whereby a petition filed by the defendants/judgment
debtors/petitioners under Section 114 read with Order XLVII Rule 1
C.P.C has been rejected.
2. Learned Senior Counsel for the petitioners submits that
the plaintiff/decree holder/respondent no. 1 had filed Title (Partition)
Suit No. 24 of 1986 claiming 1/4th share in the property described in
Schedule-B of the plaint except in Plot Nos. 733 and 708. The suit
was ultimately decreed in favour of the plaintiff vide judgment and
decree dated 23.08.1990 and 30.10.1990 respectively. Aggrieved
thereby, the defendants filed title appeal being T.A No. 80 of 1990
before the District Judge, which was also dismissed vide judgment
dated 26.09.2002. The second appeal filed by the defendants before
this Court being S.A No. 02 of 2003 was also dismissed vide
judgment dated 07.07.2004. It is further submitted that in Final
Decree Proceeding No. 03 of 2013, the defendants filed a petition
under Section 114 read with Order XLVII Rule 1 C.P.C for review of
the judgment passed in Title (Partition) Suit no. 24 of 1986
contending that recently in April 2017, when the survey knowing
Pleader Commissioner went to inspect and measure the suit land, the
defendants came to know through the villagers that the plaintiff had
already sold his 1/4th share of the suit property to one Rijwana
Khatoon on 24.01.1986 by way of registered sale deed. Having come
to know about the said fact, the defendants obtained the copy of
registered sale deed from the registry office.
3. It is further submitted that the factum of sale was not
disclosed by the plaintiff in the courts at any point of time and got
the decree by concealing the material facts. The defendants had also
no knowledge of the said transfer since the purchaser neither came
in possession of the purchased land nor disclosed the fact of
purchase to the defendants. It is also submitted that the plaintiff
suppressed the factum of sale in order to cause loss and injury to the
defendants. Since the plaintiff did not specifically deny the claim of
the defendants, the court below ought to have held that the
judgment and decree passed in Title (Partition) Suit No. 24 of 1986
stood satisfied as the plaintiff had already got his share by
transferring his right, title, interest and possession over 1/4th share of
the suit property and nothing remained for preparation of "Takhta" by
appointing Pleader Commissioner.
4. Heard learned counsel for the petitioner and perused the
materials available on record. The contention of the petitioners is that
the plaintiff obtained the decree in Title (Partition) Suit No. 24 of
1986 by concealing the fact that he had already sold his share in the
suit property to one Rijwana Khatoon by way of registered sale deed
and thus nothing remained for preparation of "Takhta" through the
Pleader Commissioner.
5. The court below rejected the review application of the
judgment debtors observing that the same was barred by limitation
as the period for filing review application was only thirty days from
the date of passing the decree. The court below also took note of the
fact that the review application was filed after 17 years of passing the
decree that too when the first appeal and second appeal filed by the
defendants were also dismissed by the competent court of law.
6. To appreciate the contention of the learned Senior Counsel
for the petitioners, I have perused the provisions of Section 114 and
Order XLVII Rule 1 C.P.C. On the conjoint reading of the said
provisions, it would emerge that the review application is
maintainable by the aggrieved person in cases where;
(i) by the decree or order from which an appeal is
allowed, but no appeal has been preferred,
(ii) by a decree or order from which no appeal is
allowed, or
(iii) by a decision on a reference from court of Small
Cause.
7. Apart from the above stipulation, the aggrieved person
has to show that in spite of due diligence, new fact and evidence
were not within his knowledge or could not be produced by him at
the time when the decree was passed, or there is an error apparent
on the face of the record or for any sufficient reason he is desirous to
obtain a review of the decree passed or order made against him.
8. In the case in hand, undisputedly, the appeal against the
decree passed in Title (Partition) Suit No. 24 of 1986 was filed and
the same was dismissed. Moreover, second appeal filed before this
Court was also dismissed and as such, the decree has attained
finality. Thus, the review application filed by the defendants in the
learned court below did not satisfy the mandatory legal requirements
for invoking the provisions.
9. Otherwise also, the review application was filed after a
huge delay of 17 years with an explanation which seems completely
illogical as it is difficult to believe that though the defendants
contested the partition suit filed by the co-sharer from 1986 till
dismissal of second appeal by the High Court, but were unaware of
the transfer of the suit property to Rijwana Khatoon in the year 1986
itself.
10. Under the aforesaid facts and circumstance, this Court
does not find any infirmity in the impugned order dated 06.06.2017
passed by the court below so as to make any interference with the
same in exercise of power under Article 227 of the Constitution of
India.
11. The writ petition is accordingly dismissed.
(Rajesh Shankar, J.)
Manish
