Haripada Mandal @ Hari Pada Mahato ... vs Amulya Mahato & Others
2022 Latest Caselaw 4212 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  S.A. No.133 of 2010
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Haripada Mandal @ Hari Pada Mahato @ Hari Mandal .... .... .... Appellant Versus Amulya Mahato & Others .... .... .... Respondents

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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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     For the Appellant               : Mr. Prabir Kr. Chatterjee, Advocate
                                       Mr. A. K. Sahani, Advocate
     For the Respondents             : Mr. Om P. Singh, Advocate
     For the Interveners             : Mr. Niladri S. Mukherjee, Advocate
                                       Mr. Baibhaw Gahlaut, Advocate
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     Order No.09 Dated- 17/10/2022
     I.A. No.8064 of 2016
           Heard the parties.

2. Learned counsel for the legal representatives of the sole deceased appellant submits that this interlocutory application has been filed by the legal representatives of the sole deceased appellant namely- Haripada Mandal @ Hari Pada Mahato @ Hari Mandal with a prayer for substituting the legal representatives of the sole deceased appellant namely- Haripada Mandal @ Hari Pada Mahato @ Hari Mandal who died on 07.09.2016 leaving behind his only four legal representatives whose names, parentages and addresses have been mentioned in para-4 of the instant interlocutory application. It is next submitted that the petition for substitution is within time. It is further submitted that unless the prayer of substitution of the legal representatives of the sole deceased appellant namely- Haripada Mandal @ Hari Pada Mahato @ Hari Mandal, as prayed for is allowed, the appellants will be highly prejudiced.

3. Mr. Prabir Kumar Chatterjee has filed power on behalf of legal representatives of sole deceased appellant namely- Haripada Mandal @ Hari Pada Mahato @ Hari Mandal.

4. Considering the aforesaid facts, the prayer for substitution of the legal representatives of the sole deceased appellant namely- Haripada Mandal @ Hari Pada Mahato @ Hari Mandal, as appellant No.1 (a) to 1 (d) is allowed.

5. Registry is directed to incorporate the names, parentage and addresses of only four legal representatives of the sole deceased appellant namely- Haripada Mandal @ Hari Pada Mahato @ Hari Mandal whose names, parentage and addresses have been mentioned in para-4 of the instant interlocutory application and to mention the word 'Dead' against the name of the sole appellant namely- Haripada Mandal @ Hari Pada Mahato @ Hari Mandal with red ink in the cause title of the appeal memo.

6. This interlocutory application stands disposed of.

(Anil Kumar Choudhary, J.) I.A. No.2633 of 2013 Heard the parties.

2. Learned counsel for the appellants submits that this interlocutory application has been filed with a prayer for substituting the legal representatives of the deceased respondent No.10 namely Paspa Devi who died in the month of July, 2012 leaving behind her only two legal representatives whose names, parentages and addresses have been mentioned in para-3 of the instant interlocutory application. It is next submitted that prayer for condoning the delay and to set aside the abatement, if any, in filing the petition for substitution has also been filed. It is next submitted that the respondent No.10 was residing in a different village, hence, the appellants could not know about the death of the respondent No.10 immediately after her death, hence, there is a delay in filing the petition for substitution. It is further submitted that the delay caused in filing the petition for substitution is neither deliberate nor intentional. It is next submitted that unless the delay in filing the petition for substitution is condoned and abatement, if any, is set aside, the appellants will be highly prejudiced.

3. Considering the aforesaid facts, the delay in filing the petition for substitution is condoned, abatement, if any, is set aside and the prayer for substitution of only two legal representatives of the deceased respondent No.10 namely Paspa Devi, as prayed for, is allowed.

4. Registry is directed to incorporate the name of only two legal representatives of the deceased respondent No.10 namely Paspa Devi whose names, parentages and addresses have been mentioned in para-3 of the instant interlocutory application as respondent No.10 (a) to 10 (b) and to mention the word 'Dead' against the name of respondent No.10 namely Paspa Devi with red ink in the cause title of the appeal memo.

5. This interlocutory application stands disposed of.

(Anil Kumar Choudhary, J.) I.A. No.4840 of 2021 Heard the parties.

2. Learned counsel for the five interveners whose names appear in page- 12 of the instant interlocutory application submits that this interlocutory application has been filed with a prayer to implead the said interveners as respondent No.85 to 89 in the instant Second Appeal No.133 of 2010.

3. It is next submitted by the learned counsel for the interveners/applicants that suit property described in Schedule -4 of the plaint is the tank used mainly for agricultural purpose and the female members of the plaintiffs and the co-sharers along with the male members use the water of the tank for household/domestic purpose and that there is no other tank for the purpose. It is next submitted that the officials of the State Government without any advertisement auctioned its Shairat for three years in collusion with the enemies of the plaintiffs though the Rayati agricultural tank has not been vested in the State. It is further submitted that on 25.02.1982, the Circle Officer by its order asked the defendant No.2 (Appellant herein) to catch fish in the tank as such the suit was filed praying for declaration and other reliefs.

4. It is next submitted that Kadambini Dasi got 1/9th share over the tank in question. Kadambini Dasi died leaving behind her three sons namely Haripado Mitra Modak, Brindabon Mitra Modak and Kalipado Mitra Modok and two daughters namely Shashi Bala Dashya and Sishubala Dashya. Each of the said Haripado Mitra Modak, Brindabon Mitra Modak, Shashi Bala Dashya and Sishubala Dashya inherited 1/45th share each of the said Kadambini Dasi and they sold their share over the tank in question to Bholanath Mahto, Abinash Mahto, Smt. Bilasi Mahatain, Sri Keval Mahto, Bhubneshwar Mahto and Jaleshwar Mahto and they became the owner of 4/45th share of the suit tank. The intervener No.1 had inherited the property of late Bhubaneshwar Mahato purchased by him through the sale-deed No.153 of 1956 dated 05.01.1956 executed in favour of Bhubaneshwar Mahato and five others as already indicated above and he had acquired share in the suit tank as 4/45th share was purchased by aforesaid six persons by the sale-deed. It is next submitted that Sukni Mahatani was auction purchaser in the Rent Suit (Daham) No.2440/1940-41 having 1/9th share and Uma Moni Mahatani was the auction purchaser No.4 having 1/9th share in the suit tank. Sukni Mahatani died leaving behind her three sons namely Kebal Mahato, Gangadhar Mahato and Dinu Mahato having 1/27th share each. Gangadhar Mahato died leaving behind his one son Surendra Mahato. Surendera Mahato also died leaving behind two sons namely Manindra Nath Mahato (the intervener No.2 herein) and Dulal Kumar Mahato (the intervener No.3 herein) and have acquired 1/54th share each in the suit tank. It is next submitted that 1/9th share of Uma Mohi Mahatani devolved upon her three sons namely Shibu Mahato, Jaleshwar Mahato and Ram Mahato in equal 1/27th share. That apart Jaleshwar Mahato who is the son of Dasharam Mahato, husband of Uma Moni Mahatani purchased 2/135th share in the said tank. Jaleshwar Mahato got 2/135th share from the said 4/45th share and 1/27th share by inheritance from Uma Moni Mahatani. Jaleshwar Mahato died leaving behind one son Fanindra Mahato so he acquired 1/27th share from the original auction purchaser Uma Moni Mahatani and 2/135th share through the sale-deed. Fanindra Mahato died leaving behind two sons Dasharath Kumar Mahto (intervener No.4) and Sanjay Kumar Mahato (intervener No.5) who inherited the share of the said tank equally that is 1/54th share through Uma Moni Mahatani and 7/270th share each through the said sale-deed.

5. Learned counsel for the interveners whose names appear in page- 12 of the instant interlocutory application submits that the said five interveners undertake that they will not take any stand in contrary to the stand of the plaintiffs in the original suit and undertake to abide by the judgment to be passed in this appeal. Hence, it is submitted that they be added as respondent Nos.85 to 89 in this appeal.

6. Considering the aforesaid facts, the prayer for five interveners whose names appear in page- 12 of the instant interlocutory application to be impleaded as respondent No.85 to 89 is allowed subject to the condition that they will not take any stand contrary to the stand of the plaintiffs in the original suit and they will abide by the judgment to be passed in this appeal.

7. Mr. Niladri S. Mukherjee & Associates haved filed power on behalf of aforesaid five interveners whose names appear in page- 12 of the instant interlocutory application.

8. This interlocutory application stands disposed of.

(Anil Kumar Choudhary, J.) I.A. No.6045 of 2021 Heard the parties.

2. Learned counsel for the interveners whose names appear in page- 2 to 4 of the instant interlocutory application submits that this interlocutory application has been filed with a prayer to implead the interveners whose names appear in page- 2 to 4 of the instant interlocutory application as respondent No.90 to 99 in the instant Second Appeal No.133 of 2010.

3. It is next submitted by the learned counsel for the interveners/applicants that 1/36th share of Lughu Mahato devolved upon his four sons namely Baiju Mahato, Leju Mahato, Dalu Mahato and Tatu Mahato in the ratio of 1/144th each. The intervener Nos.1 and 2 being the sons of Baiju Mahato have got share of 1/288th each and the intervener Nos.5 and 6 being the sons of Tatu Mahato have also got share of 1/288th share each. Similarly, the intervener No.3 being the son of Leju Mahto and the intervener No.4 being the son of Dalu Mahato have got 1/144th share each. It is next submitted that Ahalya Mahatani also got 1/36th share of the suit tank vide sale-deed No.11369 dated 28.12.1956 but later on the said share of her equally devolved upon her two sons namely Jaylal Mahato and Madan Mahato in the ratio of 1/72nd share each in the said suit tank. The intervener No.10 is the son of Madan Mahto and thus, he has inherited 1/72nd share of the suit tank. It is next submitted that 1/72 nd share of Jaylal Mahato which later on devolved upon his son Sri Kant Mahato which thereafter devolved equally among his wife (intervener no.7), his son Mahavir Kumar Mahato (intervener no.8) and Vikram Mahato (intervener no.9) equally in the ratio of 1/216th share each.

4. Learned counsel for the interveners whose names appear in page- 2 to 4 of the instant interlocutory application submits that the said ten interveners undertake that they will not take any stand contrary to the stand of the plaintiffs in the original suit and undertake to abide by the judgment to be passed in this appeal. Hence, it is submitted that they be added as respondent Nos.90 to 99 in this appeal.

5. Considering the aforesaid facts, the prayer for the ten interveners whose names appear in page-2 to 4 of the instant interlocutory application to be impleaded as respondent No.90 to 99 is allowed subject to the condition that they will not take any stand contrary to the stand of the plaintiffs in the original suit and they will abide by the judgment to be passed in this appeal.

6. Mr. Baibhaw Gahlaut has filed power on behalf of aforesaid ten interveners whose names, parentage and addresses appear in page- 2 to 4 of the instant interlocutory application.

7. This interlocutory application stands disposed of.

(Anil Kumar Choudhary, J.)

S.A. No.133 of 2010 Issue notice to the respondent No.10 (a) and 10 (b). The appellants are directed to file requisites for service of notice upon the respondent No.10 (a) and 10 (b) by registered post with A/D as well as under ordinary process within three weeks failing which; this appeal shall stand dismissed without further reference to the Bench.

Rule is made returnable within six weeks.

List this appeal after receipt of the service report of the notice upon the respondent No.10 (a) and 10 (b).

Animesh/                                      (Anil Kumar Choudhary, J.)