Jharkhand High Court
Rajkishore Choudhary ... vs Mewalal Choudhary & Ors on 3 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 62 of 2023
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Rajkishore Choudhary represented through General Power of Attorney
Holder Bhupnath Mahto .... .... .... Appellant
Versus
Mewalal Choudhary & Ors. .... .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellant : Mr. Birendra Kumar, Advocate
For the Respondents : Mr. Ayush Aditya, Advocate
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Order No.03 Dated- 03.08.2023
Heard the parties.
This second appeal is fixed to today for hearing on the point of
maintainability.
It is submitted by the learned counsel for the appellant that prima
facie it appears that the impugned judgment passed by the learned
Principal District Judge, Ramgarh in Civil Appeal No. 7 of 2022 is a
remand order, hence the stamp reporter has raised the objection that a
second appeal will not be maintainable but though not specifically
mentioned that a miscellaneous appeal will be maintainable. It is next
submitted by the learned counsel for the appellant that it is not a remand
order simplicitor rather, the first appellate court has adjudicated the
entitlement of the defendant no.16 to be 1/4th of the half share of the
scheduled property i.e. in effect 1/8th share of the entire suit property
attributing that such a declaration has been made by a Co-ordinate Bench
of this Court in W.P.(C). No. 1052 of 2014.
It is next submitted by the learned counsel for the appellant that
no such declaration of the entitlement of the defendant no. 16 has ever
been made by the Co-ordinate Bench of this Court in W.P.(C) No. 1052 of
2014 and in this respect, the learned counsel for the appellant places the
copy of the said order dated 22.11.2018, passed in W.P.(C) No. 1052 of
2014, para -8 & 9 of which reads as under:-
"8. Accordingly, the impugned order dated 17.12.2013 is
modified to the extent that the defendant no.16 is entitled for his
share alongwith the plaintiffs in the suit schedule properties. The
learned counsel for the respondents submits 4 that the defendant
no.16, who along with the plaintiffs has been held entitled for half
share in the schedule-A properties, is entitled for 1/4th share in
half of the schedule-A properties.
9. The writ petition stands allowed in the aforesaid terms, with a
direction to the executing court to appoint a Survey Knowing
Pleader Commissioner within one month for allocating separate
Takta for the parties."
It is next submitted by the learned counsel for the appellant that in
the preliminary decree, the learned trial court has held that the plaintiffs
together with the defendant no.16 have got 8 Annas share in the suit
property i.e. half of the suit property but the learned trial court has never
adjudicated the inter se share of the plaintiffs and the defendant no.16, out
of the said suit property. It is next submitted by the learned counsel for
the appellant that the defendant no.16 is in fact entitled to the equal share
as that of the plaintiffs along with his 1/4th share of the total suit property
and half of the suit property which in other words can be written as half
of the half of the suit property. It is next submitted by learned counsel for
the appellant, that the contention of the appellant that there has been a
adjudication of the rights of the appellant by the impugned judgment
fortified from the fact that the learned first appellate court has drawn up
a decree also which is not required in case of a simple remand order.
Hence, it is submitted that final adjudication of the right of the defendant
no.16 -appellant has been made by the first appellate court, hence this
second appeal is maintainable.
This Court finds force in the submissions of the learned counsel for
the appellant as by the impugned judgment and decree, the learned first
appellate court knowingly or unknowingly has finally adjudicated the
entitlement of the defendant no.16 to the extent of 1/8th share of the suit
property, hence this second appeal is maintainable.
Accordingly, the stamp report in respect of maintainability is
overruled.
List this appeal after further stamp reporting.
AFR-Sonu-Gunjan/- (Anil Kumar Choudhary, J.)
