Jharkhand High Court
Badri Hazam vs Nakul Hazam ; on 6 July, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 104 of 2013
Badri Hazam, son of Late Phuchan Hazam, resident of Village-
Parvatpur, P.S.-Gandey, P.O.-Gandey, District-Giridih.
... ... Petitioner
Versus
1. Nakul Hazam ;
2. Sukhdev Hazam;
Both sons of Late Mamlal Hazam @ Dugar Hazam, resident of
Vilalge Parvatpur, P.S.-Gandey, at present Ahioyapur, District-
Giridih;
3. Saraswati Devi, widow of Late Chatu Hazam;
4. Bada Thakur, son of Late Chatu Hazam;
5. Chotka Thakur @ Naresh Thakur, son of Late Chatu Hazam;
All residents of Village-Ahilyapur, P.S.-Ahilyapur, District-Giridih.
...... Respondents
6. Gangia Devi, wife of Sri Gopal Hazam and daughter of Late Phuchan
Hazam, resident of Village-Lusadih, P.S.-Katras, P.O.-Bagdeha,
District-Dhanbad.
7. Dasia Devi, wife of Sri Khiru Hazam and daughter of Late Phuchan
Hazam, resident of Village-Dasadih, P.S.-Gandey, P.O.-Gandey,
District-Giridih.
... ... Proforma Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Pandey Neeraj Roi, Advocate
Mr. Rohit Ranjan Sinha, Advocate
Mr. Akchansh Kishore, Advocate
For the Respondent : Mr. D.K. Prasad, Advocate
Mr. S.N. Roy, Advocate
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06/Dated 06th July, 2022
1. The instant writ petition is filed under Article 227 of the Constitution of
India wherein the order dated 02.05.2012 (Annexure-9) passed in
Partition Suit No.44 of 2010 by Sub-Judge-VI, Giridih has been
questioned by which the petition filed under Order 6 Rule 17 seeking
amendment in the plaint stood rejected.
2. The brief facts of the case as per the pleading made in the writ petition,
which required to be enumerated, reads as under:
A partition suit was filed on25.03.2010 being Partition Suit
No.44 of 2010 before the court of Sub-Judge-I, Giridih by the
petitioner/plaintiff against Nakul Hazam, Sukhdev Hazam, Saraswati
Devi, Badka Thakur and Chotka Thakur (defendants) and impleading
Gangia Devi and Dasia Devi as proforma defendants praying for decree
of eight anna in Schedule-A and A-1 of the plaint in favour of the
plaintiff alongwith proforma defendants.
It has been stated as under Schedule-A of the plaint description
of land comprising of land measuring area of 3.04 acres under Khata
no.89 of Village-Parvatpur, P.S.-Gandey, Thana No.-621, District-
Giridih including plot nos.1170, 1171 & 1176 besides other plots.
Schedule-1 of the plaint comprises of land measuring 0.21 acres of land
in plot no.93 under khata no.2 of Village Deopur, Thana no.590, P.S.-
Gandey, District-Giridih.
It is the case of the plaintiff as per the pleading in the plaint that
the plaintiff and proforma defendants along with defendant nos.1 to 5 are
having unity of possession over the property.
The defendants have appeared and filed their written statement
disputing the plaintiff's title over the suit property.
The plaintiff has filed an application under Order 1 Rule 10(2)
of the CPC for impleadment of one Pushpa Devi as defendant no.8
which was allowed to be added without objection of the contesting
defendants. The plaintiff has again filed one application under Order 1
Rule 10(2) of the CPC for impleadment of certain persons as party
defendant nos.9 to 14, who were described as the heirs of the purchases,
namely, Gondi Mahto, Mahraj Mahto and Lal Mohan Mahto of the plot
nos.1170, 1171 and 1176 admeasuring area of 21 decimals under khata
no.89 as described in Schedule-A in the plaint sold to them by registered
sale deed no.6382 dated 21.10.1946 executed by Chutan Mahto in favour
of the aforesaid purchasers.
According to the petitioner, the sale deed no.6382 dated
21.10.1946 was filed before the court below by the plaintiff separately
with the list of document on 30.01.2012. The plaintiff, subsequent to
appearance of the defendant who have filed written statement, filed
petition under Order 6 Rule 17 of the CPC, appended as Annexure-7 to
the petition, whereby and whereunder the prayer has been made for
seeking leave of the court below to allow the plaintiff to make necessary
amendments to the effect which reads as under:
"Proposed Amendment.
i) That after para 6, a new para 6A may be added. (6A) That chotu
Hazam son of Teko Hazam, a khatiyani raiyati sold 21 decimals of
lands of plot nos.1170 area 12 decimals plot no. 1171 area 3 decimals
and plot no.1176 area 6 decimals under khata no.89 of village-
parvatpur, P.S.-Gandey, Dist.-Giridih in favour of Gondi Mahato,
Maharaj Mahato and Lal Mohan Mahato, all sons of late Prasadi
Mahato through a registered deed of sale deed no.6382 dt. 21.10.1946
for valid consideration and put them in actual khas, physical possession
over the same. The purchasers paid rents to the then landlord and after
vesting of zamindari, they paid rents to the state of Bihar and now
Jharkhand and obtained rent receipts for the same.
Gondi Mahato died leaving behind a daughter Deliya Devi,
Maharaj Mahato, died leaving behind a son Ram Chandra
Mahato and a daughter Shanti Devi, and Lal Mohan Mahato died
leaving behind two sons, namely, Rameshwar Verma and Baleshwar
Verma and a daughter Tepuri Devi as their legal heirs and successors
and the said legal heirs may be added as parties in the suit as they are
necessary parties in the suit.
ii) That in the cause title of the plaint the following may be added as
defendant nos.9 to 14.
(9) Deliya Devi wife of Nirmal Mahato and D/o Late Gondi Mahato,
resident of Parvatpur, P.S.-Gandey, at present Ahilyapur, Dist.-
Giridih.
(10) Ram Chandra Mahato, son of late Maharaj Mahato, resident of
Vill-Parvatpur, P.S.-Gandey, at present Ahilyapur, Dist.-Giridih.
(11) Shanti Devi widow of Late Nunu Mahato and D/o Late Maharaj
Mahato, resident of Village-Fulchi, P.S.-Ahilyapur, Dist.-Giridih.
(12) Rameshwar Verma.
(13) Baleshwar Verma.
Both sons of Late Lal Mohan Mahato, residents of Village-
Parvatpur, P.S.-Gandey, at present Ahilyapur, Dist-Giridih.
(14) Tepuri Devi wife of Raghunandan Verma and D/o Late Lal Mohan
Mahato, resident of Vill-Fulchi, P.S.-Ahilyapur, Dist.-Giridih."
3. It appears from the petition filed under Order 6 Rule 17 of the CPC that
two fold prayers have been made seeking leave of the court to make
addition of the aforesaid paragraph after paragraph 6 by adding a new
paragraph-6A.
4. Defendants have filed rejoinder to the aforesaid petition by objecting the
said amendment taking the plea that the plaintiff has earlier filed a
petition on 21.02.2011 under Order 1 Rule 10(2) of the CPC to add
several persons as defendants on the ground that their ancestors were
purchasers of the said suit land. However, the aforesaid petition has been
rejected vide order dated 05.09.2011.
5. It is the further objection on the part of the defendants that the order
dated 05.09.2011 has never been challenged before the higher forum and
even after its acceptance that it has attained finality.
6. The trial court, after appreciating the arguments advanced on behalf of
the parties, has rejected the petition filed under Order 6 Rule 17 of the
CPC on 02.05.2012 on the ground that the earlier the application filed
under Order 1 Rule 10(2) of the CPC has already been rejected and if
such prayer will be rejected, the same will change the nature of the suit.
Being aggrieved with the same, the instant petition has been
filed under Article 227 of the Constitution of India.
7. Mr. Pandey Neeraj Roy, learned counsel assisted by Mr. Rohit Ranjan
Sinha, learned counsel for the petitioner has submitted that so far as the
addition of party, namely, Deliya Devi, Ram Chandra Mahato, Shanti
Devi, Rameshwar Verma, Baleshwar Verma and Tepuri Devi are
concerned, the same are not being pressed on the ground that petition
filed under Order 1 Rule 10(2) has already been rejected vide order dated
05.09.2011, however, he has confined his prayer for addition of
paragraph-6A for insertion of the fact about transfer of land by virtue of
registered sale deed dated 21.10.1946, reason being that part of the land
in question which is the subject matter of the partition suit has been
transferred in favour of Gondi Mahto, Mahraj Mahto and Lal Mohan
Mahto by virtue of registered sale deed dated 21.10.1946 but the sale
deed since was not well within the knowledge of the plaintiff, therefore,
the same has not been inserted in the plaint at the time of filing of the
suit.
8. According to the learned counsel for the petitioner, if the transfer of land
by virtue of the aforesaid registered sale deed will not be allowed to be
inserted, by which the part of the land of the suit property has already
been transferred in favour of Gondi Mahto, Mahraj Mahto and Lal
Mohan Mahto, it will be impossible to execute the partition decree.
Therefore, learned counsel for the petitioner submits that so far
as the insertion of the aforesaid prayer for segregating the part of the
property from the description as referred in Schedule-A since has not
been allowed and by doing so, the trial court has not appreciated the fact
that even if the decree would be passed on the basis of the present
description as referred in Schedule-A, it will be impossible to execute
the decree and as such, the impugned order, so far as it relates to
disallowing the transfer of part of the land in question by virtue of
registered sale deed dated 21.10.1946 is concerned, the same is required
to be interfered with.
9. Mr. D.K. Prasad, learned counsel for the defendants assisted by Mr. S.N.
Roy, learned counsel is fair enough to submit that if such insertion will
not be made in the plaint and if the partition decree will be passed, it will
be quite difficult to execute the decree.
10. This Court has considered the rival submissions of the parties and after
going across the factual aspect as also the finding recorded by the
learned court below, deems it fit and proper to first deal with the
undisputed fact before entering into the legality and propriety of the
impugned order.
11. The undisputed fact herein is that a suit for partition has been filed for
partition of the property as per the description contained in Schedule-A.
Further undisputed fact is that part of the property as per the
description made in Schedule-A has been transferred by virtue of
registered sale deed dated 21.10.1946 in favour of Gondi Mahto, Mahraj
Mahto and Lal Mohan Mahto but in the plaint no description about the
sale deed dated 21.10.1946 has been brought since according to the
petitioners, the same was not within the knowledge of the plaintiffs.
However, the moment it came to the knowledge of the plaintiffs, a
petition under Order 6 Rule 17 has been field seeking amendment to the
effect as narrated under the caption heading "Proposed Amendment" as
quoted and referred above so far as it relates to segregation of the
immovable property which has been transferred by virtue of registered
sale deed dated 21.10.1946.
However, the petition filed under Order 6 Rule 17 also contains
another prayer, i.e., for impleadment of party but the petition filed under
Order 1 Rule 10(2) has already been rejected vide order dated
05.09.2011. Admittedly, the said order has never been questioned by the
plaintiffs, therefore, the plaintiffs have chosen not to press that part of
the amendment sought for rather the they are only pressing the insertion
in the plaint with respect to the fact of transfer of property in question in
favour of Gondi Mahto, Mahraj Mahto and Lal Mohan Mahto by virtue
of registered sale deed dated 21.10.1946.
The trial court has considered the fact and has rejected the
petition on the ground that if amendment will be allowed the nature of
the suit will change as also the ground has been taken that on earlier
occasion the petition filed under Order 1 Rule 10(2) of the CPC was
rejected.
12. This Court is aware of the jurisdiction conferred to this Court under
Article 227 of the Constitution of India as has been held by the Hon'ble
Apex Court in Shalini Shyam Shetty Vrs. Rajendra Shankar Patii,
(2010) 8 SCC 329 and the Hon'ble Apex Court has been pleased to lay
down therein regarding the scope of Article 227 which relates to the
supervisory powers of the High Courts and has taken aid of the judgment
rendered by the Hon'ble Full Bench of Calcutta High Court in Dalmia
Jain Airways Ltd. Vrs. Sukumar Mukherjee, AIR 1951 Calcutta 193,
wherein it has been laid down that Article 227 of the Constitution of
India does not vest the High Court with limitless power which may be
exercised at the court's discretion to remove the hardship of particular
decisions. The power of superintendence confers power of a known and
well recognized character and should be exercised on those judicial
principles which give it its character. In general words, the High Court's
power of superintendence is a power to keep the subordinate courts
within the bounds of the authority, to see that they do what their duty
requires and that they do it in a legal manner.
The power of superintendence is not to be exercised unless
there has been;
(a) An unwarranted assumption of jurisdiction, not vested in a court
or tribunal; or
(b) gross abuse of jurisdiction; or
(c) an unjustifiable refusal to exercise jurisdiction vested in courts or
tribunals.
Further, in the aforesaid judgment the Hon'ble Apex Court has
taken aid of the judgment rendered in Mani Nariman Daruwala Vrs.
Phiroz N. Bhatena, (1991) 3 SCC 141 wherein it has been laid down
that in exercise of jurisdiction under Article 227, the High Court can set
aside or reverse finding of an inferior court or tribunal only in a case
where there is no evidence or where no reasonable person could possibly
have come to the conclusion which the court or tribunal has come to.
The Hon'ble Apex Court has made it clear that except to this
limited extent the High court has no jurisdiction to interfere with the
finding of facts.
Further, in the judgment rendered by the Hon'ble Apex Court in
Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh
Pardeshi, (1995) 6 SCC 576 it has been laid down that the High Court
under Article 227 cannot assume unlimited prerogative to correct all
species of hardship or wrong decisions. Its exercise must be restricted to
grave dereliction of duty and flagrant abuse of fundamental principles of
law and justice.
It has been laid down at paragraph 47 of the aforesaid judgment
that the jurisdiction under Article 227 is not original nor is it appellable.
This jurisdiction of superintendence under Article 227 is for both
administrative and judicial superintendence. Therefore, the powers
conferred under Article 226 and 227 are separate and distinct and operate
in different fields. Another distinction between these two jurisdictions is
that under Article 226 the High Court normal annuls or quashes an order
or proceedings but in exercise of its jurisdiction under Article 227, the
High Court, apart from annulling the proceeding, can also substitute the
impugned order by the order which the inferior tribunal should have
made.
It has further been laid down regarding the powers to be
exercised by the High Court under Article 227 of the Constitution of
India. The High Court, in exercise of its jurisdiction of superintendence,
can interfere in order only to keep the tribunals and courts subordinate to
it within the bounds of its authority, in order to ensure that law is
followed by such tribunals and courts by exercising jurisdiction which is
vested with them and by not declining to exercise the jurisdiction which
is vested in them. Apart from that, High Court can interfere in exercise
of its power of superintendence when there has been a patent perversity
in the orders of the tribunals and courts subordinate to it or where there
has been a gross and manifest failure of justice or the basic principles of
natural justice have been flouted.
In exercise of its power of superintendence High Court cannot
interfere to correct mere errors of law or fact or just because another
view than the one taken by the tribunals or courts subordinate to it, is a
possible view. In other words the jurisdiction has to be very sparingly
exercised.
It is evident from proposition laid down by the Hon'ble
Supreme Court, so far as the power conferred to the High Court under
Article 227 of the Constitution of India that it can look into the legality
and propriety of the order, if the nature of order is interlocutory and if on
the face of record, the order suffers from error or order is without beyond
jurisdiction.
13. It is evident from the settled position of law that the Court exercising the
power conferred under Article 227 of the Constitution of India is
required to interfere with the order if the order suffers from error on bare
reading of the finding recorded by the trial court.
Herein, according to the considered view of this Court, the fact
about the transfer of property by virtue of registered sale deed dated
21.10.1946 is not in dispute, therefore, the part of the land which is the
subject matter of the partition suit since has been transferred by virtue of
registered sale deed dated 21.10.1946 and if such amendment will not be
allowed by allowing the party to change the description of land furnished
as under Schedule-A, the difficulty would be that how the partition
decree will be executed.
14. The said question has arisen in the mind of the Court that admittedly the
property has already been transferred in favour of the third party rightly
or wrongly, the land admittedly is not under the ownership of the
plaintiffs/defendants and if the partition decree will be passed, the same
will be inexecutable and decree will become decree on paper, as such,
the entire process will be allowed to be frustrated.
It is settled position of law that once the decree is being passed
by the competent court of civil jurisdiction, it has to be complied with in
its letter and spirit but here in the given facts of the case, once the decree
would be passed and the stage will come for preparing the final decree,
at that stage, it will appear that the part of the land since has already been
transferred by virtue of registered sale deed dated 21.10.1946, the same
cannot come under the fold of final decree and in that view of the matter,
the entire decree will be inexecutable.
15. This Court, therefore, is of the view that the order dated 02.05.2012 is
required to be interfered with. Accordingly, the impugned order dated
02.05.2012 is quashed and set aside.
16. Accordingly, the matter is remitted before the trial court to consider the
petition filed under Order 6 Rule 17 afresh and pass a fresh order in
accordance with law, within a period of four weeks from the date of
receipt of copy of the order, keeping the observations made hereinabove.
17. In view thereof, the instant writ petition stands allowed and accordingly,
disposed of.
18. It goes without saying that the right to file additional written statement, if
necessitated, is required to be provided to the defendants.
(Sujit Narayan Prasad, J.)
Saurabh/ A.F.R.
