Jharkhand High Court
Surendra Kumar Sharma @ Surendra Sharma vs (I) Shakuntala Kunwar on 29 October, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:32479-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 441 of 2019
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1. Surendra Kumar Sharma @ Surendra Sharma, aged about 60 years,
son of Late Mehilal Sharma, resident of Bhandani Nagar, Near Pawan
Krus School, Bhurkunda, P.O.-Bhadani Nagar, P.S.-Bhurkunda, District-
Hazaribagh
2. Sanjeev Kumar Sharma, aged about 46 years, son of Basudeo Sharma,
resident of Guru Nanak Colony, Belwatikar, P.O.-Daltonganj, P.S.-
Daltonganj, District-Palamau
... ... Appellants
Versus
1.(i) Shakuntala Kunwar, W/o Late Kanhai Sharma
1.(ii) Uday Sharma
1.(iii) Prakash Sharma
Both S/o Late Kanhai Sharma
1.(iv) Kiran Devi, W/o Manoj Sharma, D/o Late Kanhai Sharma
1.(v) Khusboo Devi, W/o Sunil Kumar Vishwakarma, D/o Late Kanhai
Sharma
All residents of Mohalla Gurunanak Colony, Belwatika, P.O.-
Daltonganj, P.S.-Medininagar, District-Palamau (Jharkhand)
2. Shyam Bihari Sharma, S/o Nanhku Mistry, resident of Mohalla
Belwatikar, P.O. & P.S.-Daltonganj, District-Palamau
3. Collector of the District Palamau, P.O. & P.S.-Daltonganj, District-
Palamau
... ... Respondents
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CORAM: HON'BLE MR.JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellants : Mr. Kundan Kumar Ambastha, Advocate
: Md. Abdul Wahab, Advocate
For the Respondents : Mr. Akhouri Prakhar Sinha, Advocate
: Mr. Ratnesh Kumar, S.C. (L&C)-I
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th
Order No.22/ Dated: 29 October, 2025
Mr. Akhouri Prakhar Sinha, learned counsel appearing for the
respondents has made a preliminary objection with respect to the
maintainability of this Letters Patent Appeal as according to him this
appeal arises out of order passed in Misc. Appeal No.15 of 2004 under
Section 299 of the Indian Succession Act and therefore, the present
appeal is not maintainable. In such context he has referred to an order
passed in L.P.A. No. 552 of 2023 dated 17.01.2024.
2. Mr. Kundan Kumar Ambastha, learned counsel for the appellants
has submitted that the present Letters Patent Appeal is maintainable and
he has referred to the judgment in the case of "Subal Paul v. Malina
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Paul" reported in (2003) 10 SCC 361.
3. This Letters Patent Appeal is directed against the order dated
29.01.2019 passed by the learned Single Judge in Misc. Appeal No. 15
of 2004 whereby and where under the appeal preferred by the appellants
under Section 299 of the Indian Succession Act against the order
refusing to grant probate has been dismissed.
4. Mr. Kundan Kumar Ambastha has relied on the case of "Subal
Paul v. Malina Paul (Supra) and the same has been considered by a
Division Bench of this Court in L.P.A. No. 552 of 2023 and the relevant
reads as follows:-
"10. In LPA No. 208 of 2011, a coordinate Bench of this Court has held
that after incorporation of section 100-A, intra-court appeal against the order
of a learned Single Judge passed under section 299 of the Indian Succession
Act shall not lie and, that, the judgment in "Subal Paul" shall not apply to the
proceedings under section 299 of the Indian Succession Act after the
amendment in the Code of Civil Procedure.
11. In LPA No. 208 of 2011, this Court has held as under:
"This was a case under special statute where the proceeding originated
under a special act and appeal was also provided in that wherein no
further appeal was provided and objection was that instead of
approaching the Supreme Court the party should approach first to the
Division Bench of the High Court by preferring an appeal as LPA which
objection has been rejected by the Hon'ble Supreme Court for the reason
mentioned above which we have narrated indicating that in special
statute where appeal is provided by that very statute to the Single Bench
of the High Court and the provision of intra court appeal in Letters
Patent remains, by virtue of Section 100A C.P.C., the right of appeal
under Letters Patent has been taken away. In view of the above legal
position, the argument of the learned counsel for the appellant that only
appeals which have been provided by the C.P.C. under the provisions of
Section 96, 100 or 43 Rule 1 etc. are the matters where the L.P.A. is not
maintainable, has no force.
The same view has been taken by the Hon'ble Supreme Court in the
case of Geeta Devi & Anr. (Supra) wherein appeal arising out of the
Award passed by the Motor Accident Claims Tribunal under Special
Statute, the Motor Vehicles Act Hon'ble Supreme Court held that the
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Division Bench of the High Court rightly dismissed the appeal holding it
not maintainable.
In the case of Mohd. Saud and Another (Supra) also the Hon'ble
Supreme Court has considered the scope of 100A C.P.C.. However, that
was matter arising out of an order passed under section 43 Rule 1 CPC
subject to appeal under order and C.P.C. against which the L.P.A. was
preferred and in that situation the Hon'ble Supreme Court held that the
appeal was barred. However, this judgement is not relevant for our
purpose because of the reason that learned counsel for the appellant has
not disputed nor this is a controversy involved in this case where any
order which is appealable under the Code of Civil Procedure before the
High Court then the intra court appeal is not maintainable because of the
bar u/s 100A C.P.C.
In view of the above reasons, we are of the considered opinion that
the appeal preferred by the appellant is not maintainable, hence
dismissed."
12. In "Mohd. Saud and Another v. Dr. (Maj.) Shaikh Mahfooz and
Others" (2010) 13 SCC 517 section 100-A of the Code of Civil Procedure
has been considered. The Hon'ble Supreme Court has held as under:
"7. The Full Bench by the impugned judgment has held that
after the introduction of Section 100-A with effect from 1-7-2002, no
letters patent appeal shall lie against the judgment or order passed by a
learned Single Judge in an appeal. The Full Bench has held that the
decision of the Division Bench of the High Court in Birat Chandra
Dagra v. Taurian Exim (P) Ltd. [(2006) 11 Ori LR 344 (Ori)] (vide p. 5)
does not lay down good law while the decision of the Division Bench in
V.N.N. Panicker v. Narayan Patil [(2006) 102 CLT 479 (Cut) : (2006) 2
Ori LR 349 (Ori)] lays down the correct law. The Full Bench has further
held that after the amendment of Section 100-A w.e.f. 1-7-2002, no LPA
shall lie against the order or judgment passed by a learned Single Judge
even in an appeal arising out of a proceeding under a special Act."
13. The aforesaid judgment in LPA No. 208 of 2011 is binding on us and our
attention has not been drawn to any contra judgment of this Court to refer
this matter to a larger Bench for an authoritative pronouncement on this
question. Moreover, the issue of whether or not the present Letters Patent
Appeal shall lie is covered by the judgment of the Hon'ble Supreme Court in
"Mohd. Saud".
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5. On consideration of the aforesaid order dated 17.01.2024 we find
justification in the preliminary objection raised by the learned counsel
for the respondents and consequently we dismiss this appeal as being not
maintainable.
6. Pending I.A.'s if any stands disposed of.
(Rongon Mukhopadhyay, J.)
(Pradeep Kumar Srivastava, J.)
29.10.2025
Basant/Arpit
