Jharkhand High Court
Unknown vs (1) Ganga Lal Son Of Late Suraj Bhan Lal on 2 January, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 53 of 2020
1(a) Madhuri Devi w/o Late Ratan Lal
1(b) Jeetesh Lal
1(c) Abhimanyu Lal
Both S/o Late Ratan Lal
1(d) Puja Kumari, D/o Late Ratan Lal
All R/o- Irgu Road
Near Masjid, Garikhana, P.O., G.P.O., P.S.- Sukhdeonagar,
Dist- Ranchi ... ... Appellants [substituted for defendant no.
1(a) /appellant/appellant]
Versus
(1) Ganga Lal son of Late Suraj Bhan Lal, by faith Hindu, by
nationality Indian, resident of Lower Burdwan Compound, P.O. and
P.S. Lalpur, District Ranchi (Jharkhand)
... ... Plaintiff/Respondent/Respondent
(2) Savitri Devi wife of Late Bimal Chand Jain
(3) Sampat Lal son of Late Bimal Chand Jain, both by faith Hindu, by
nationality Indian, both residents of J. J. Road, Upper Bazar, P.O.,
G.P.O. P.S. Kotwali, District Ranchi (Jharkhand)
(4) Dinesh Lal son of Late Bimal Chand Jain, by faith Hindu, by
nationality Indian, by occupation business, resident of J. J. Road,
Upper Bazar, P.O. G.P.O. P.S. Kotwali, District Ranchi (Jharkhand)
(5) Kiran Devi wife of Prabhat Kumar, resident of Pandra Panchseel
Nagar, P.O. & P.S. Sukhdeonagar, District Ranchi
(6) Meena Devi wife of Nand Kishore Prasad, resident of 165 Harmu
Housing Colony, P.O. and P.S. Argora, District Ranchi
... ... Defendants/Respondents/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Kundan Kumar Ambastha, Advocate
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07/02.01.2025 Heard the learned counsel appearing on behalf of the appellants.
2. This second appeal has been filed against the judgment and
decree dated 28.11.2019 (decree signed on 13.12.2019) passed by
learned Additional Judicial Commissioner- XX, Ranchi whereby the
Civil Appeal No. 36 of 2019 has been dismissed and final decree
dated 06.12.2018 passed by the learned Munsif, Ranchi in Original
Suit (Partition) No. 92 of 2005 has been confirmed.
3. Learned counsel for the appellants has submitted that the matter
arises out of Partition Suit No. 92 of 2005 wherein the plaintiff had
claimed half share of the suit property. He submits that altogether five
issues were framed and preliminary decree was prepared. Pleader
Commissioner was appointed and thereafter, final decree was also
prepared.
4. The learned counsel has further submitted that the appeal was
filed by one of the defendants namely, Ratan Lal and the main ground
in the appeal was that the final decree passed by the learned trial Court
was contrary to law and the materials on record; the Pleader
Commissioner had not taken the pain to locate the suit property by
taking into consideration the fixed point and fixities which was the
primary function and duty of the Pleader Commissioner in carving out
takhta for partition of the properties. The further ground raised by the
said defendant before the first appellate court was that the Pleader
Commissioner had not assessed the value of the property while
making allotment which was mandatory. It was argued that the report
of the Pleader Commissioner was perfunctory and merely a table
work.
5. The learned counsel for the appellants has also submitted that
the appellate Court dismissed the appeal and the appellate Court's
judgment calls for interference as admittedly valuation of the property
was not done. He has further referred to the judgment passed by this
Court reported in 2004 (4) JLJR 452 (Amit Raut Vs. Kanhai Rout
and others) and has submitted that in the said case this Court
ultimately remanded the matter to the trial Court for passing fresh
decree by directing the commissioner to value the properties and
ensure allotment of the properties.
6. After hearing the learned counsel appearing on behalf of the
appellants, this Court finds that the partition suit was filed by the
plaintiff seeking a preliminary decree for partition of half share of the
suit property and it was further prayed that on appointment of Pleader
Commissioner half share be carved out in favour of the plaintiff from
the suit property and his takhta be separated. The learned trial Court
framed altogether five issues as under:
"1. Is this suit maintainable?
2. Whether the plaintiff has got valid cause of action for the suit?
3. Whether there is unity of title and unity of possession in between
the parties to the suit with respect to the suit property given in the
schedule of the plaint?
4. Whether the plaintiff is entitled to get half share in the suit
property as claimed for?
5. To what relief or reliefs the plaintiff is entitled to?"
7. The partition suit was decreed and it was held that the plaintiff
was entitled to half share of the suit property and a preliminary decree
was directed to be prepared. The order dated 06.12.2018 passed in
Partition Suit No. 92 of 2005 has been placed on record which reveals
that Pleader Commissioner had submitted his report on 22.02.2018
and it appeared from the report that the measurement and inspection of
the suit property was done after giving notice to all the parties and the
son of the original defendant was present at the time of measurement
of land. With the help of Executive Magistrate and armed police force,
separate allocation of share of plaintiff over the suit property along
with the boundary was done as per the preliminary decree dated
29.02.2016 and also a sketch map was prepared showing the
allotment. After filing of the report, no objection was filed and
ultimately the report of the Pleader Commissioner was accepted for
carving separate share of parties as per preliminary decree and the
final decree was prepared.
8. Before the appellate Court, the appeal was filed by only one of
the defendants against the final order dated 06.12.2018 passed in final
decree proceeding in the original suit by which the learned Munsif had
accepted the report of the Pleader Commissioner. The said defendant
(appellant before the first appellate Court) prayed for setting-aside the
final decree passed in the partition suit. The appellant had no
grievance with regards to the issues decided in the partition suit.
9. The points raised by the original appellant have been recorded
in paragraph 3 of the impugned appellate court's judgement
and upon perusal of paragraph 10 of the impugned judgment this court
finds that the appellate Court has recorded that the Pleader
Commissioner had allotted share to the parties in the available land for
partition and there was no dispute regarding identification and
boundary of the suit land and therefore, there was no need to take
fixed point to locate the suit premises. The learned appellate Court
further recorded that the Pleader Commissioner had allotted shares to
the parties to the suit in the available identified suit property. The
learned appellate Court referred to the provision of Order XLVI Rule
14 of Code of Civil Procedure dealing with the "Procedure of
Commissioner". The learned appellate Court further recorded that the
learned trial Court did not commit any error in accepting the report of
the Pleader Commissioner which was in accordance with the law and
procedure. The appellant had full knowledge of the original suit from
the day he was examined as DW-1 in suit. The learned appellate Court
further noted that the appellant had also appeared in the final decree
proceeding, but did not file any objection against the report of the
Pleader Commissioner and ultimately, dismissed the appeal.
10. So far as the judgment cited by the appellants passed in the case
of Amit Raut (Supra) is concerned, in the said judgment objection
was raised in connection with the division of property by the amin
commissioner and the objection was rejected by the trial court and the
objection was in connection with inequitable distribution of property
in terms of the value of the share in the property and the finding of the
first appellate court that allotment of the property with or without road
frontage have equal advantages was held to be unjust and not
sustainable in law . In the aforesaid judgment of Amit Raut (Supra) it
has been held that normally, in an appeal against a final decree, the
second appellate court is reluctant to interfere. Firstly, in most of the
cases where the question is only of allotment of one property or
another to the sharers no question of law would arise out of the claim
for allotment justifying interference. Secondly, most of the suits for
partition are of ancient vintage and any interference in second appeal
would tend to prolong the litigation in court and keep the litigants out
of the fruits of the decree. However, the court in the said case
interfered in the matter on account of objection raised to the report of
the pleader commissioner on the point of inequitable distribution of
property in terms of frontage of land and also on the value of allotted
share in the property and the objection was held to be wrongly
rejected and it was held that the first appellate court had wrongly
rejected the appeal.
11. The said judgement does not help the appellants in any manner
whatsoever. In the present case there is no grievance regarding
inequitable distribution of property in terms of value or otherwise. In
the present case, as per the report of the pleader commissioner no
building was found on the suit land and it had some temporary shed
and this fact is also not in dispute. The identification of the property is
also not in dispute. The entire report of the pleader commissioner has
been quoted which reveals participation/presence of the parties at the
time of local inspection and measurements and no objection was filed
to the report of the pleader commissioner. The learned appellate
court has also recorded that delaying tactics were adopted and while
deciding the appeal the appellate court has considered all the relevant
arguments and materials on record.
12. In the aforesaid facts and circumstances, this Court is of the
view that no question of law much less substantial question of law
arises for consideration in this appeal which is hereby dismissed.
13. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Pankaj
