Dinesh Sah vs Shankar Sah
2024 Latest Caselaw 1036 Jhar

Jharkhand High Court

Dinesh Sah vs Shankar Sah on 2 February, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                 1                           C.M.P. No. 307 of 2022



       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        C.M.P. No. 307 of 2022
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Dinesh Sah, aged about 60 years, son of Late Mohan Sah, resident of Bara Jirwabari (Chanan), P.O. Borio, P.S. Borio (J), District-Sahibganj.

....... Petitioner Versus

1. Shankar Sah, son of Aghnu Sah,

2. Kamni Devi, wife of Late Bhola Sah,

3. Deepak Sah,

4. Budhu Sah,

No.3 and 4 both sons of Late Bhola Sah,

No.1 to 4 all are resident of village -Bara Jirwabari, P.O. Borio, P.S. Borio (J), District-Sahibganj.

5. Soniya Devi, daughter of Late Bhola Sah, and wife of Pramod Sah, resident of Lohanda, P.O. Lohanda, P.S. Borio (J), Dist.-Sahibganj.

6. Mahendra Sah, son of Late Sukal Sah,

7. Prayag Sah, son of Late Bishwanath Sah,

All resident of Village-Bara Jirwabari, P.O. Borio, P.S. Borio (J), District-Sahibganj.

8. Fagu Sah, son of Gujai Sah, resident of Village-Sanauli, P.O. and P.S. Dandkher, Dist.-Katihar.

9. Tetri Devi, daughter of Late Parmeshwar Sah and wife of Late Changuli Sah, resident of Purana Sanauli, P.O. and P.S. Kedwa, Dist.-Katihar.

10.Ashok Sah,

11.Manoj Sah,

12.Santosh Sah,

All sons of Late Radhia Devi and Basudeo Sah, all are resident of Parasbana, P.O. and P.S. Pirpainti, Dist.-Bhagalpur.

13.Bhadia Devi, d/o Late Maghu Sah, w/o Late Sukri Sah, resident of Dighi, Simanpur, P.O. and P.S. Pirpainti, Dist.-Bhagalpur.

14.Radhia Devi, daughter of Budhia Devi and Late Asharfi Sah, resident of Village-Keshanpur Lal Bathani, P.O. and P.S. Amdabad, Dist.-Katihar.

... ... Plaintiffs/Respondents

15.Lakshman Sah, son of Late Lakhi Sah, resident of village Maskalaiya, P.O. and P.S. Taljhari, Dist.-Sahibganj.

16.Sibu Sah, son of Durga Sah.

17.Rimol Sah, son of Durga Sah

18.Suniti Sah, Daughter of Durgu Sah, Wife of Murli Sah All resident of village-Amrati, P.O. & P.S.-Manikchak, Dist.- Malda.

19.Jogi Sah, Son of Late Sahdeo Sah, and Bhadia Devi, Resident of Village- ChotaJirwabari, P.O.- Jirwabari, P.S.- Borio (J), Dist.- Sahibganj.

20.Pradeep Sah, Son of Late Chander Sah,

21.Raj Kumar Sah, Son of Late Chander Sah Both Resident of Village- ChotaJirwabari, P.O.- Jirwabari, P.S.-Borio (J), Dist.- Sahibganj.

22.Hari Sah,

23.Futu Sah, Both Sons of Late Kishan Sah and Sabo Devi, Resident of Village ChotaJirwabari, P.O.- Jirwabari, P.S.- Borio (J), Dist.- Sahibganj

24.Niranjan Sah @ Darari, Son of Late Mithi Sah and Basant Sah, Resident of Village- Kanhaiya Asthan, P.O. & P.S.- Rajmahal, Dist.- Sahibganj.

25.Mukesh Sah, Son of Late Shanti Devi @ Mahabir Sah, Resident of Mahajantoli, P.O. & P.S.- Rajmahal, Dist.- Sahibganj.

26.Mallo Devi, D/O Late Maru Sah, Wife of Suresh Sah, Resident of Village- Jirwabari, P.O. & P.S.- Borio (J), Dist.- Sahibganj.

27.Fudki Devi, Wife of Baijnath Sah, D/o Sukel Sah @ Sukhlal Sah, Resident of Village- Balrampur, Manihari, P.O. and P.S. Manihari, Dist.- Katihar.

28.Ramni Devi, Wife of Reetlal Sah, Resident of Village- Premnagar, P.O. & P.S.- Sahibganj, Dist.- Sahibganj.

29.Ahilya Devi, Wife of Ajay Sah, Daughter of Late Bishwanath Sah, Resident of EkchariDiara, P.O and P.S. Budhuchak, Dist.- Bhagalpur.

30.Kaushalya Devi, Wife of Kalu Sah, D/o Late Bishwanath Sah, Resident of Village-Mahagama, P.O. & P.S.- Mahagama, Dist. Godda.

31.Panchi Devi, Wife of Viyasmuni Sah, D/o Late Sahdeo Sah and Bhadia Devi, Resident of Village- Chanmochia, P.O. & P.S. Gangti, Dist.- Godda.

32.Mithun Sah, Son of Late Suresh Sah and Promila Devi,

33.Ajay Sah, Son of Late Suresh Sah and Promila Devi,

Both resident of Village- Jamhalpur, P.O. & P.S.-Kahalgoan, Dist.- Bhagalpur.

34.Kushmi Devi, D/o Late Mohan Sah, Wife of Harimohan Sah (Chandramohan Sah),

35.Semal Sah (Shyamal Sah), Son of Durgu Sah (Durga Sah),

Both resident of Amrati, P.O. & P.S.- Kaliachak, Dist.- Malda, W.B.

36.Mila Mostt., Wife of Late Girish Sah,

37.Ravi Kumar,

38.Sashi Kumar,

39.Gorav Kumar Sah,

All sons of Late Girish Sah, all resident of ChotaChanan, Jirwabari, P.O. Jirwabari, P.S. Borio (J), Dist.-Sahibganj.

... ... Performa Respondents/Respondents

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Birendra Kumar, Advocate For the O.P. Nos.1-5 : Mr. Rajeeva Sharma, Advocate Mr. Om Prakash, Advocate For the O.P. Nos.11-12 : Mr. Naresh Pd. Thakur, Advocate

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nd 08/Dated: 02 February, 2024

1. The instant civil misc. petition has been filed under Article 227 of the Constitution of India, wherein the order dated 10.05.2022 passed by the learned Senior Civil Judge-I, Sahibganj in Title Suit No. 17 of 2010, whereby and whereunder, the learned trial court has allowed the petition filed on behalf of the defendant dated 15.012022 whereby and whereunder, the ground has been taken that since the preliminary decree has been passed against the dead person, as such, the entire decree suffers from the principle of nullity. Another petition was filed under the provision of Order 22 Rule 3 and 4 of the CPC on 28.02.2022 seeking prayer therein that the parties who have died were alive at the time of institution of the partition suit no. 17 of 2010 and during pendency of the suit, the parties died but no substitution petition could be filed since the suit has not been filed by a dead person against a dead person so the judgment of decree passed by the original court has got no legal sanctity. The petition dated 15.01.2022 has been rejected while the petition dated 28.02.2022 has been allowed.

2. The brief facts of the case as per the pleading made in the petition which requires to be enumerated, read as under:

That the plaintiff filed Title Suit No. 17/2010 for a decree of preparation of preliminary partition of half share in a suit after appointment of Survey knowing Amin Commissioner and delivery of possession to the Court in which the defendants have appeared and contested the matter and stated that Lalu Sah had acquired suit property on his own labour and contested the suit but the Ld. Trial Court after framing the issues i.e. Issue no. 4 and 5 about unity of title about possession and entitlement of plaintiff half share and after going through the documentary as well as oral evidence the Trial Court has decreed the suit in favour of plaintiff which was on contest by defendant no. 1 to 4, 11 to 14 and ex- parte against rest defendants.

That the contesting defendants had preferred Civil Appeal No. 22/2018 including the legal heir of Girish Sah and also filed an application 27.09.2018 stated therein on that plaintiff no. 7 Radhia Devi died on 05.08.2017, defendant no. 2 Dukhni Devi died on 10.08.2014 and defendant no. 7 Girish Sah died on 11.10.2011 when the Ld. Principal District Judge rejected the said appeal on 14.01.2020 with a finding that the Title Partition Suit No. 17/2010 was proceeded by dead persons against dead persons that too before the judicial records arrived stage of final argument.

That the petitioner after getting the knowledge of death of parties of the suit, defendant nos. 1 to 4 and 11 to 14 filed an application on 15.01.2022 about the death of the parties stating that judgment and decree become void in original suit and cannot be implemented and prays for rejection of operation for appointment of Pleader Commissioner and the plaintiff filed the rejoinder to the said petition on 10.03.2022 stated that defendant has made the wrong submission in Civil Appeal No. 22/2018 and the appeal was dismissed without admitting the same thus plaintiffs did not get a chance to present the real fact although the plaintiffs filed substitution petition on 28.02.2022 to bring on record the legal heir of plaintiffs and defendants and also filed a petition u/s 5 of Limitation Act praying to reject the petition dated 15.01.2022.

The plaintiffs filed an application under order 22 rule 3 and 4 C.P.C. on 28.02.2022 stating about the death of the parties. Thereafter, the contesting defendants filed rejoinder to the substitution petition on

10.03.2022 and the civil appeal no.22/2018 was dismissed on the ground that dead persons has proceeded against the dead persons in original suit.

The learned court after hearing the parties on the petition for substitution as well as application dated 15.01.2022 and its rejoinder, had allowed the substitution of the legal heirs of the parties vide order dated 10.05.2022 which is the subject matter of the instant petition.

3. It appears from the pleading made as referred hereinabove that a suit for partition was filed being Title Partition Suit No.17 of 2010. The petitioner who were defendants to the suit as also the respondent herein who were plaintiff to the suit being co-sharer of the property in question had contested the case.

4. The learned trial court, after proceeding, has passed the preliminary decree on 24.04.2018 as appended as Annexure-1 to the petition.

5. The defendants have preferred an appeal against the judgment dated 24.04.2018 being Civil Appeal No. 22 of 2018 by taking the ground that during pendency of the original suit, the plaintiff no.7 died on 05.08.2017, defendant no.2 died on 10.08.2014 and defendant no. 11 died on 11.10.2011.

6. The ground has been taken that the preliminary decree passed in the aforesaid suit since has been passed against one of the death plaintiffs and the defendants two in number, hence, the settled position of law is that the decree passed against the dead person will be nullity in the eyes of law but the appellate court has rejected the said appeal at the stage of admission, thereafter, the original court has proceeded for passing the final decree.

7. Two petitions have been filed, one by the defendant nos.1, 2, 3, 4, 11, 12, 13, 14 on 15.01.2022 and another filed by the plaintiff under Order 22 Rule 3 and 4 of the CPC on 28.02.2022.

8. The petition dated 15.01.2022 was filed seeking therein that the decree passed against the dead person be declared to be nullity in the eyes of law but the same was rejected. While the petition dated 28.02.2022 filed for substitution in view of the provision of Order 22 Rule 3 and 4 of the CPC has been allowed. The aforesaid order dated 10.05.2022 is under challenge under Article 227 of the Constitution of India.

9. Mr. Birendra Kumar, learned counsel for the petitioners has taken the ground that the order impugned dated 10.05.2022 is per se illegal since the learned trial court has failed to appreciate the fact that the judgment passed against the dead person is held to be nullity in the eyes of law but instead of accepting the said position of law, even though the petition was filed on 15.01.2022, the learned trial court has allowed the petition at belated stage, i.e., filed on 28.02.2022 under Order 22 Rule 3 and 4 of the CPC by allowing the substitution of the dead person through their legal heirs which cannot be said to be correct in view of the fact that at such a belated stage, the same cannot be a ground to allow the petition dated 28.02.2022.

10. While, on the other hand, learned counsel for the opposite parties have defended the order passed by the learned trial court on the following grounds:

(i) Admittedly the suit is for partition of the property as per the schedule of the plaint and when the right and title of the plaintiff or the defendant are not in dispute, then merely because some of the defendants have died, the judgment in the shape of the decision by way of passing the preliminary decree cannot be said to be nullity in the eyes of law.

(ii) The aforesaid ground has been agitated by the petitioner by assailing the order passed in the preliminary decree in an appeal by taking the same ground but the appellate court has refused to entertain the same by dismissing the appeal.

(iii) The aforesaid order passed by the appellate court has not been assailed before the higher forum and once the order passed by the appellate court has been accepted by the petitioner herein, who is the defendant to the suit, the same plea is not allowed to be agitated by them and by taking into consideration the aforesaid fact if the petition dated 28.02.2022 has been allowed, the same cannot be said to suffer from an error.

11. Learned counsel for the respondents, based upon the aforesaid ground, have submitted that the impugned order therefore needs no interference since there is no error apparent on the face of the order.

12. This Court has heard the learned counsel for the parties, gone across the finding recorded by the learned trial court as also the other material available in the pleading and the documents but this Court before appreciating the factual aspect and to go into the legality and propriety of the order, deems it fit and proper to refer the order whereby and whereunder the notices have been issued upon the opposite party nos.1- 14 as would be evident from order dated 19.10.2022.

13. In pursuance of the aforesaid order, appearance has been made on behalf of opposite party nos.1-5 by Mr. Rajeeva Sharma, learned counsel and on behalf of opposite party nos.11-12 by Mr. Naresh Pd. Thakur, learned counsel.

14. It appears from the order dated 03.01.2024 that steps for service of notice upon opposite party nos.8 and 9 as per the direction passed by this Court have not been taken, therefore, there is no representation on their behalf.

15. This Court is proceeding to examine the legality and propriety of the order even in absence of opposite party nos.8 and 9, taking into consideration the fact that what has been argued on behalf of the petitioner and the contesting opposite parties herein, in absence of opposite party nos. 8 and 9, the order which is to be passed by this Court on hearing of the parties at length since is not causing prejudice in view of the fact that the matter pertains to partition suit and the issue which has been raised by the petitioner, defendant to the suit, cannot be said to be proper in view of the discussion which is to be made hereinafter, hence, considering the fact that the order which is to be passed will not prejudice the interest of opposite party nos. 8 and 9.

16. The law is well settled that in the matter of partition suit, where the title is not in dispute, as per the provision of CPC, the principle of transposition of the plaintiff or defendant is to be applied.

17. Such principle is to be applied if there is any death of either the plaintiff or defendant, the share can go in favour of the legal representative since there is no dispute of the title or the share of the legal heirs of the deceased which is to be considered by transposition of the parties. Reference in this regard be made to the judgment rendered in the case of

R. Dhanasundari @ R. Rajeswari vs. A.N. Umakanth and Ors., (2020) 14 SCC 1, wherein at paragraph-8 it has been observed which reads as under:

"8. The law of procedure relating to the parties to a civil suit is essentially contained in Order 1 of the Code of Civil Procedure, dealing with various aspects concerning joinder, non-joinder and misjoinder of parties. Rule 10 of Order 1 specifically provides for addition, deletion and substitution of parties; and the proposition for transposition of a party from one status to another, by its very nature, inheres in sub-rule (2) of Order 1 Rule 10 CPC that reads as under:

"10. (2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added."

18. This Court is now proceeding to examine the rival submission made on behalf of the parties as referred hereinabove.

19. The question which has been raised on behalf of the petitioners that the decree passed by way of preliminary decree ought to have been considered nullity in the eyes of law since one of the plaintiffs and two of the defendants have died during pendency of the partition suit.

20. The legal heirs of the plaintiff or the contesting defendant, filed a petition under Order 22 Rule 3 and 4 of the CPC for their substitution dated 28.02.2022.

21. The said petition was filed of-course after the petitioners have preferred an appeal challenging the preliminary decree on the aforesaid very issue but the appellate court has refused to entertain the aforesaid plea. Admitted fact is that the judgment passed by the appellate court has not been challenged by the plaintiff before the higher forum, meaning thereby, the judgment passed by the appellate court has been accepted wherein the same issue regarding declaring the decree to be nullity in the eyes of law on account of death of one of the plaintiffs and two of the defendants has been refused to be accepted, meaning thereby, the decree passed in preliminary decree has been approved by the appellate court.

22. The matter would have been different if the plaintiffs would have challenged the judgment passed by the appellate court but that is not the fact herein. The question, therefore, which is to be considered that once

the plea which has been taken by the petitioner has been approved by the appellate court, the same is to be tested by this Court that on what ground, the appellate court has refused to accept the said plea declaring the decree to be nullity in the eyes of law.

23. The judgment passed by the appellate court cannot be said to suffer from error reason being that the matter pertains to the partition suit and in the matter of partition suit, the principle of transposition of the parties is to be followed as per the judgment rendered by the Hon'ble Apex Court in R. Dhanasundari @ R. Rajeswari vs. A.N. Umakanth and Ors. (supra).

24. Admittedly, the judgment passed by the appellate court since has not been challenged before the higher forum, hence, proceeding which was sub-judice before the learned trial court at the stage of preparation of the final decree, two petitions were filed.

25. The question of negating the same ground by the trial court, according to our considered view, cannot be said to be unjustified reason being that the said ground has already been looked into and adjudication has been made by the appellate court by not accepting the plea that in a partition suit, merely because the defendant or the plaintiff has died, the preliminary decree passed in the partition suit is to be declared to be nullity.

26. The question would be that if the learned trial court would have allowed the petition dated 15.01.2022 can it be said to be a justified order after dismissal of the appeal on the same very issue.

27. According to the considered view of this Court, once the said issue has been denied to be accepted by the appellate court which has been accepted by the petitioner herein, then it was incumbent upon the learned trial court to refuse to entertain the said petition by holding the decree to be nullity in the eyes of law since the preliminary decree has already been approved by the appellate forum the same having not been questioned by the petitioner before the higher forum.

28. The second petition dated 28.02.2022 has been filed for substitution of legal heirs by invoking the jurisdiction conferred to the learned trial court under Order 22 Rule 2 and 3 of the CPC. The same has been allowed and the same is also under challenge.

29. This Court, is of the view that once in the partition suit the principle of transposition is to be looked into if there is no dispute of the title for the share holder of the parties, even then, the plaintiff or the defendant have died in course of pendency of the partition suit and no substitution application has been filed before passing of the preliminary decree if the substitution application will not be allowed then the question will be that without deciding the title or without having the issue of title for the property in question, the right of the legal heirs of the plaintiff or the defendant will be taken away. Therefore, the principle of transposition is the position of law to deal with such issues so that the legal heirs of the party concerned may not be put to detrimental situation by depriving their right over the property in question.

30. This Court, on the basis of the aforesaid, coming to the impugned order, is of the view that while rejecting the petition dated 15.01.2022 and allowing the petition dated 28.02.2022, the learned trial court has committed no error.

31. The instant petition is under Article 227 of the Constitution of India which has got very limited jurisdiction to interfere with the impugned order and the jurisdiction is to interfere with the same if there is error apparent on the face of the order. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Shalini Shyam Shetty vs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to lay down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon'ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in 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 limit less 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.

32. 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. 12.

33. Further, in the aforesaid judgment of the Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (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.

34. This Court, on the basis of the discussion made hereinabove, is of the view that no such ground has been agitated by the petitioner said to be the order impugned suffer from an error.

35. Accordingly, the instant petition is hereby dismissed.

36. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.) Saurabh/-

A.F.R.