Raju Tiwary @ Rajendra Tiwary Aged About ... vs Pawan Pathak S/O Late Dahu Pathak
2025 Latest Caselaw 1469 Jhar

Jharkhand High Court

Raju Tiwary @ Rajendra Tiwary Aged About ... vs Pawan Pathak S/O Late Dahu Pathak on 9 January, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                IN THE HIGH COURT OF JHARKHAND, RANCHI
                          C.M.P. No. 678 of 2023
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1. Raju Tiwary @ Rajendra Tiwary aged about 60 years

2. Daso Tiwary @ Dashrath Tiwary aged about 58 years

3. Ashok Tiwary aged about 49 years

4. Sanjay Tiwary aged about 41 years, all sons of Sudhir Tiwary

5. Savitri Devi aged about 55 years W/o Raju Tiwary

6. Sakuntala Devi aged about 50 years W/o Daso Tiwary

7. Sabita Devi aged about 41 years W/o Ashok Tiwary

8. Rukmani Devi aged about 43 years W/o Sanjay Tiwary All residents of village - Gandey, PO and PS - Gandey, District -

             Giridih                                    .... Petitioners
                                    --    Versus   --

Pawan Pathak S/o Late Dahu Pathak, Residents of village - Gandey, PO and PS - Gandey, District - Giridih .... Respondent

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Sanjay Prasad, Advocate For the Respondent :- Mr. Prabhash Ch. Sinha, Advocate

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06/09.01.2025 Heard learned counsel appearing for the petitioners and learned

counsel appearing for the sole respondent.

2. This petition has been filed under Article 227 of the Constitution

of India for quashing of the order dated 15.03.2023 passed by learned

District Judge-IX, Giridih in Civil Appeal No.83 of 2017 whereby petition

dated 25.01.2023 filed by the petitioners under order 41 Rule 24 and 25

CPC has been rejected.

3. Learned counsel appearing for the petitioners submits that the

suit was decided by judgment dated 22nd August, 2017 and against that

the appeal has been preferred. He submits that the appeal was

proceeding and in the meantime a petition was filed under order 41 Rule

24 and 25 CPC for framing of issue, i.e., whether the suit is barred under

Section 18 of Bihar Privileged Persons Homestead Tenancy Act or not and

the learned Court by the impugned order has rejected the same and that

has been done erroneously. On this background, he submits that the said

order may kindly be set aside and the proper direction may kindly be

issued to frame the said issue in the appeal.

4. Learned counsel appearing for the sole respondent submits that

the maintainability issue was already framed in the suit and in that view

of the matter the learned Court has rejected the petition.

5. The Court has gone through the order dated 15.03.2023 which

has been impugned in this petition, the learned Court has found that the

issue has already framed in the trial Court as issue No.2 and 9. In the

trial Court's judgment issue No.2 is with regard to the maintainability of

the suit and issue No.9 is stated that had the Anchal Adhikari, Gandey

jurisdiction to grant Basgit Parcha to defendant No.6 to 9 or not. These

issues are specific on the maintainability and in view of that the learned

appellate court has held that the maintainability issue is already framed

by the learned trial court and as such the petition was dismissed. There

is no illegality in the order, this petition is dismissed.

(Sanjay Kumar Dwivedi, J.) Sangam/