Bhawar Prasad. And Ors vs Jangali Devi And Ors
2023 Latest Caselaw 222 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                        FIRST APPEAL No. 408 of 1973
                                    Along with
                   Interlocutory Application No. 4138 of 2018
                                        and
                    Interlocutory Application No. 24 of 2021
======================================================

Bhawar Prasad (since deceased) 1 (i) is dead and her heirs are already on record as (R-II to 11)

(ii) Janki Devi, D/O Late Bhawar Prasad, W/O Satya Narain Prasad, vill- Karim Chak, P.O.+P.S. Danapur, Distt.Patna

(iii) Hapson Prasad, S/O Shri Deo Saran Prasad, S/o Predeceased, D/O (Lakhi Devi), resident of village-Fatanpur, P.O. and P.S. Garkha, District-Chapra

(iv) Kalika Devi, W/O Sri Ram Nath Prasad, D/O Predeceased , D/O Lakhie Devi, resident of village and P.O.Suberna, Harari, P.S. Awtar Nagar, District- Chapra 4 (i) Laljhari Devi, W/o deceased Narad Prasad. 4 (ii) Radhika Devi, D/o deceased Narad Prasad, W/O Ram Sanehi Prasad and one of his heirs are already on record as A-10, resident of vill. and P.O. Silhauri, P.S. Marhowrah, District -Saran 5 (i) Mostt. Ram Sakhi Kuer, W/O Rameshwar Prasad 5(ii) Bhushan Prasad, S/O Rameshwar Prasad, resident of vill. -Silhauri, P.S. Marhowra, Distt. Saran.

5. (iii)(a) Mostt. Munni Kumar, W/ deceased Mohan Prasad

5. (iii)(b) Amod Kumar, S/O deceased Mohan Prasad. Both are resident of Vill. and P.O. Silhauri, P.S. Marhowrah, District-Chhapra 5(iii)(c) Smt. Geeta Devi, D/O deceased Molu Prasad, W/o Shree Anuj Rai, resident of Village-Garhara, Sariya, P.O. Sonpur, P.S. Sonpur, District Chhapra 5(v) Manju Devi W/o Birendra Prasad, village- Bhahurahayia, P.O. Kaui, District-Chapra.

5(vi) Puspa Devi, W/O Manoj Prasad, village- Bhahurahayia, S.O. Sariya, P.S. Marhowrah, District-Chhpra.

5 (iv) Neena Devi, W/o Awadhesh Prasad, village- Bhahurahayia, P.S. Parsa, P.O. Pauruthi, District-Chapra.

6(i) Sushila Devi, Wife of Abhimanyu Prasad 6(ii) Abhishek Kumar, Son.

6(iii) Ashwani Kumar, Son 6(iv) Amit Kumar, Son.

6(v) Bina Rani, daughter, w/o Tarkeshwar Prasad All are resident of village-Silhauri, P.S. Marhawa, District-Saran at Chhapra.

7. Surendra Prasad, S/o Asarfi Prasad, resident of village and Post Office- village-Silhauri, P.S. Marhawa, District-Saran.

8.Umesh Kunar, S/O Asarfi Prasad, resident of village and Post Office- village-Silhauri, P.S. Marhawa, District-Saran 9(i)Mostt. Kaushlya Devi, W/o Late Vijay Kumar 9(ii)Dhaneshwar Prasad, S/o deceased Vijay Kumar 9(iii) Poonam Kumari, D/o deceased Vijay Kumar. 9(iv) Pushpa Kumari, D/o deceased Vijay Kumar. All are resident of village and Post Office- village-Silhauri, P.S. Marharwa, District-Saran

10. Prahlad Prasad, S/o Naresh Prasad, resident of village and P.S. Silhauri, P.S. Marhawa, District-Saran ... ... Appellant/s Patna High Court FA No.408 of 1973 dt.18-01-2023

Versus

Jangali Devi (since deceased) 1(a)(i) Raja Prasad, husband of Jangali Devi 1(a)(ii) Rajbanshi Rai, S/o Late Jangali Devi 1(a)(iii) Yadubanshi Rai, S./o Jangali Devi 1(a)(iv) Malhari Devi, W/O Jagat Prasad Rai 1(a)(v) Sarita Devi, W/o Ramesh Narain Singh 1(a)(vi)Kalika Devi, W/o Ashok Kumar All daughter of Late Jangali Devi 1(a)(vii) Harendra Pd. Rai, S/o Late Rajendra Pd. Rai 1(a)(viii) Nagendra Kumar Rai, S/o Rajendra Pd. Rai 1(a)(ix) Dharmendra Rai, S/o Rajendra Pd. Rai. All are grandsons of Late Jangali Devi 1(a)(x) Usha Kumari, D./o Late Rajendra Pd. Rai 1(a)(xi) Asha Kumari, D/O Late Rajendra Pd. Rai. All are granddaughter of Lae Jangali Devi. (Sl. No. 1(a)(i) to 1(a)(iii) & 1(a)(vii) to 1(a)(xi) resident of vill.-Dhup Nagar, P.S.& P.O. Jalalpur, Distt.Saran. Sl. No. 1(a)(iv) resident of vill-Baluha P.S. & P.O. Chapra Sadar, Distt.-Saran. Sl. No. 1(a)(v) resident of vill-Bhainsmara, P.S.& P.O. Garkha, Distt. -Saran Sl. No. 1(a)(vi) resident of vill.-Dhonlahi, P.S. & P.O. Amaur, Distt.-Saran

2. (i) Mostt. Besari Devi, W/O Ramdeo Prasad, resident of vill.-P.O.- Silhaurhi, P.S. Marhwra, Distt.-Saran. 2(ii)(a) Mostt. Bedamia Kuer, W/o Late Shibpujan Prasad 2(ii)(b) Girja Pd. Yadav, S/o Late Shibpujan Prasad 2(ii)(c) Awadhesh Pd. Yadav, S/o Late Shibpujan Prasad 2(ii)(d) Sita Devi, W/o Jai Prakash Rai 2(ii)(e)Umrawali Devi, W/O Ajay Rai 2(ii)(f) Ranja Devi, W/o Ravindra Rai All resident no. (d), (e) & (f) are daughter of deceased Shibpujan Prasad and all are resident of vill & P.O. Silhaurhi, P.S. Marharwa, Distt. Chapra. 2 (iii) Bikrama Prasad, S/o deceased Ramdava Prasad. 2(iv) Kedar Prasad, S/o deceased Ramdave Prasad R. (v) Smt. Shanti Devi, W/o Mahanth Prasad, vill.-Chandchak, P.O. Aphar, P.S. Amnaur, Distt.-Saran R(vi) Chinta Devi, W/o Radha Kishore Prasad, Vill.-Sardha, P.O. Dahiwah, P.S. Muffasil, Chapra, Distt.-Saran. R(vii) Smt. Champa Devi, W/o Sri Jagdish Prasad, Vill. Chinar, P.O. Doriganj, Distt. Saran Resp. No. 3(i) is dead and his heirs are already on record as Resp. no. 23, 24 and 25 as Respondent First Party.

4(a) Kailsiya Devi, W/o Brij Mohan Prasad Yadav, R/o village Prasadi, P.O. and P.S.-Parsa, District-Saran at Chhpra R-9 to 12 already on record.

6-Ramcharitra Prasad.

7(a) Prahlad Prasa

(b) Mahesh Prasad

(c) Ramesh Prasad All sons of Late Suchit Prasad

(d) Bidya Devi

(e) Deepak Devi

(f) Sangeeta Devi . All daughter of Late Suchit Prasad Patna High Court FA No.408 of 1973 dt.18-01-2023

(g) Mania Kuar, W/o Late Suchit Prasad Address not given in substitution petition.

8(i)Mostt. Ramdevi Devi, W/o Late Jaleshwar Prasad

(ii) Nand Kumar

(iii) Birendra Kumar

(iv) Jitendra Kumar

(v) Satendra Kumar. All sons of Late Jaleshwar Prasad, vill.+P.O.-Silhauri, P.S. Marhawa, District-Saran 10 Jaimangal Prasad

11. Kanhaiya Prasad

12. Uma Shankar Prasad All sons of Hari Prasad

13. Paras Prasad

14. Lal Babu Prasad All sons of Sheonandan Prasad

15. Ramji Prasad

16. Laxman Prasad

17. Lala Prasad.

All sons of Ramcharitra Prasad

18. Prahlad Prasad

19. Mahesh Prasad 20 Ramesh Prasad All sons of Suchit Prasad

21. Nand Prasad, son of Jaleshwar Prasad

22. Sheopujan Prasad, son of Ram Dawan Prasad

23. Bikram Prasad

24. Kedar Prasad son of Ram Dawan Prasad,

25. Girija Prasad, son of Sheopujan Prasad Resident of Village and P.O.-Silhauri, P.S. Marhaura, District-Saran.

Respondent 1st Party

26. (a) M.P. Yadav, Resident of Bokaro Steel City, Sector-1218, Q. No. 3367, P.S. and District-Bokaro.

(b) Ram Lal Pd.Yadav-workshop B.C.C.L., Dhanbad

(c) S.P. Yadav-Sub Division Officer, P.H.E.D., near P.M.C.H., District-Patna

(d) Kameshwar Prasad-Silhauri, P.S. Marhaura, Distt.-Chapra

(e) Chiraiya Devi, W/o Sunar Roy, resident of vill. -Laganpura, P.S. Beldi, Distt. Chapra

(f) Lahi Devi, W/o Rameshwar Prasad Yadav, vill.-Madhurpur, P.S. Marhaura, Bihar 27(ka) (a) Dhananjay Prasad

(b) Jaimangal Prasad. Both are sons of deceased 27(ka)

(c) Smt. Sona Devi, W/o Laxman Prasad Smt. Panna Devi W/o Sudama Prasad

(e) Ghular Devi, W/o Jamadar Pd.

27(kha)(i) Ratia Devi, W/o Jamuna Devi, vill-Gorkha, Distt.-Saran

(ii) Chinta Devi, W/o Sri Jawahir Rai, vill. Mohan P.O.+P.S. Marhaura, Distt.- Saran

(iii) Rajmatia Devi, W/o Sheodayal Rai, vill. Baldori, P.O.+P.S. Manjhi, Distt. Saran

(iv) Chintu Kumari Patna High Court FA No.408 of 1973 dt.18-01-2023

(v) Manju Kumari, Boh are D/O Nawal Rai, vill. Khagari, P.S.-Jalalpur, Distt. Saran.

28(a) Shankar Rai, S/o Late Rampreet, Vill. Silhauri, P.S. Marhaura, Distt. Chapra 29(a) Tileshwari Devi, W/o Late Ramdeo Rai

(b)Uma Rai

(c) Radha Rai. Both son of Late Ramdeo Rai. All resident of Silhouri, P.O.& P.S.-Marhaura, Distt. Saran

(d) Kalawati Devi, W/O Ambika Rai resident of vill. Pokhan, P.O. and P.S. Marhaura, Distt. Saran

(e) Manju Devi, W/o Jitendra Rai, Resident of Gawra, P.O. and P.S. Marhaura Distt. Saran 30(a)(i)(ka) Sushila Devi, W/o Late Daroga Rai

(a)(i)(kha) Sikandar Prasad, S/o Late Daroga Rai (Ga) Birju Kumar (Gha) Ravi Shankar (Cha) Munni Kumari (Chha)-Soni Kumari. All son and daughter of Late Daroga Rai, Resident of vill. Silhouri, P.S.-Marhaura, Distt. Chapra 30(a)(ii) Pulish Rai, son of Late Baijnath Prasad, Village-Silhauri, P.S. Marhaura, District-Chapra

(a)(iii) Sita Devi, wife of Rameshwar Rai, Village Dayapur, P.S. Madhopur, P.S. Marhaura, District Chapra.

(a)(iv) Gita Devi, wife of Pancham Rai, Village Channa, P.O. Mirjapur, P.S. Marhaura, District Chapra, Both daughter of late Baijnath Prasad. 30(b)(a) Prem Narayan Prasad, son of Tejbali Prasad

(b) Anita Kumari

(c) Lal Pari Devi

(d) Babita Devi All daughter of late Tejbali Prasad, Resident of Silhauri, P.S. Marhaura, District Saran.

30(c) Sukhan Prasad

(d) Jharokha Prasad

(e) Lalak Prasad

(f) Sanichri Devi

(g) Phulmati Devi

(h) Etwari Devi, daughter of late Kunj Bihari Lal.

(i) Mostt. Sukwari Devi, wife of late Kunj Bihari Lal All are resident of Village-Silhari, P.S. Mahauwara, District-Saran. 31(i) Babu Lal Rai

(ii) Jaga Lal Rai. Both sons of Deceased.

(iii) Ratni Devi, D/o Deceased W/O Huleshwar Rai, Vill.+P.O.+P.S.-Bheldi, Distt-Saran

(iv) Butni Devi, D/o Deceased, W/o Kuldip Rai, Vill. Mobarkpur, P.S. Amour, Distt. Saran

(v) Patania Devi, D/O Deceased W/o, Baldeo Rai, vill. Jagdishpur, P.S. Jalalpur, Distt.-Saran

(vi) Deorania Devi, D/O Deceased, W/O Mahendra Rai Vill.-Asoiaan, P.O.- Mirjapur, P.S.-Marhoura, Distt. Saran 31 (vii)(a) Chandreshwar Rai, Vill. Tejpur, P.O.-Khodibag, P.S.-Jalalpur, Distt.-Saran 32(i) Mostt. Deopati Kuar, W/O Deceased.

Patna High Court FA No.408 of 1973 dt.18-01-2023

(ii) Yogendra Rai

(iii) Sheo Kumar Rai

(iv) Dew Kumar Rai

(v) Om Prakash Rai All sons of Late Deceased All resident of village and P.O.-Silhauri, P.S.-Marhaura, Distt.-Saran 32(vi)Smt. Pandhari Devi, W/O Sri Shambha Rai, D/O Deceased, Vill. and P.O. Manorpur, P.S. Amnour, Distt. Saran.

34. Budh Ram Rai

35. Raghunath Rai, S/o Lal Bihari Prasad, resident and P.O.-Silhaura, P.S.- Marhaura, Distt.- Saran 2nd Party

36. State of Bihar through Collector of Saran, Chapra.

37. Sri Khedan Prasad, Uchcha Vidyalaya through Sri Hari Prasad (Defendant No. 4), Secretary of Sri Khedan Prasad Uchcha Vidyalaya of Village-Silhauri, P.S. Marhawra, District Saran.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Prabhu Narayan Sharma, Advocate For the Respondents No. 9 and 19 : Mr. Ashok Kumar and Mr. Sushil Kumar Ojha, Advocates ======================================================= CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 18-01-2023

Heard Mr. Prabhu Narayan Sharma, learned counsel for

the appellants and Mr. Ashok Kumar, learned counsel for the

respondents no. 9 and 19.

2. The matter has been coming up for passing orders on

various Interlocutory Applications filed either on behalf of the

appellants or the respondents.

3. At the outset, the Court would indicate that

Interlocutory Application No. 4138 of 2018 and Interlocutory

Application No. 24 of 2021 filed on behalf of respondent no. 9

have been taken up first for the reason that prayer has been made

in the said Interlocutory Applications for holding that the present Patna High Court FA No.408 of 1973 dt.18-01-2023

First Appeal has abated on account of death of respondents no.

8(i), 8(iii), 9, 23, 24, 29(c), 33 and 34 as per Interlocutory

Application No. 4138 of 2018 and respondents no. 11, 26, 30(d),

32(ii) as also appellants no. 9 and 11 as per Interlocutory

Application No. 24 of 2021.

4. Learned counsel for the respondents no. 9 and 19

pressing the aforesaid Interlocutory Applications submitted that

the abovenamed respondents died in the year 1999, 2010, 2006,

2016, 2005, 2016, 2010, 2015, 2021, 2017, 2020 and 2020

respectively, whereas the appellants no. 9 and 11 have also died

but the date is now known to him.

5. Learned counsel submitted that for substituting the

respondents no. 8(i), 8(iii), 9, 23, 24, 29(c), 33 and 34,

Interlocutory Application No. 16 of 2019 has been filed on

06.02.2019, whereas for substituting the respondents no. 11, 26

and 30(d), Interlocutory Application No. 22 of 2021 has been filed

and with regard to respondents no. 30(d) and 32(ii) Interlocutory

Application No. 20 of 2021 has been filed whereas no application

has been filed with regard to respondent no. 26 and appellants no.

9 and 11.

6. Learned counsel submitted that the delay is ranging

from a year to 20 years and, thus, it shows absolute casualness on Patna High Court FA No.408 of 1973 dt.18-01-2023

the part of the appellants in pursuing the appeal and the same

suffers from willful delay and laches. It was submitted that even in

the Interlocutory Applications filed seeking condonation of such

delay no valid cause has been shown as the delay has also not been

explained as is required for the entire period and only a vague

statement has been made that such death was not in the knowledge

of the appellants, which cannot be accepted since the appeal arises

out of a partition suit and the parties being agnates, it cannot be

believed that for such a long period of two decades, they would be

unaware of the death having occurred of any of the parties, who

are closely related to each other. Thus, learned counsel submitted

that the law requiring such substitution to be made within 90 days

of the death having occurred, the delay of so many years is not fit

to be allowed. Further, it was submitted that as of now, the appeal

itself has automatically stood abated and for setting aside the

abatement even till date with regard to respondent no. 26 and

appellants no. 9 and 11 there being no petition on record, on an

overall view, the entire appeal should be held to have abated. In

support of his contention, learned counsel relied upon a recent

decision of the Hon'ble Supreme Court in Majji Sannemma alias

Sanyasirao vs. Reddy Sirdevi and others, 2021 SCC Online SC

1260, for the proposition that the discretion to condone the delay Patna High Court FA No.408 of 1973 dt.18-01-2023

has to be exercised judicially based on facts and circumstances of

each case and sufficient cause cannot be liberally interpreted if

negligence, inaction or lack of bona fide is attributed to the party

and further that even if it may harshly affect rights of a party it has

to be applied with all its rigour when prescribed by the statute.

Reliance was also placed on the decision of the Hon'ble Supreme

Court in Budh Ram v. Bansi, (2010) 11 Supreme Court Cases

476, the relevant being at paragraphs no. 17 to 20, for the

proposition that the abatement of appeal due to death of one

respondent would lead to abatement against other respondents

also, more so, in cases where there is joint and indivisible decree

as in the present case, where in a partition suit till actually there is

partition, there is a joint and indivisible right of all the co-sharers

on the entire property and, thus, in the absence of so many parties,

the appeal, but necessarily, has to abate. Moreover, learned counsel

submitted that the Court has also held that abatement is automatic

and there is no need for any declaration and the same has to be set

aside by a formal order which till date has not been done. Learned

counsel drew the attention of the Court to order dated 24.11.1994

which discloses that the appeal had already abated against the heirs

of deceased respondent no. 3(i) and further that the order dated

12.02.2009 would indicate that two weeks time was granted to Patna High Court FA No.408 of 1973 dt.18-01-2023

serve copy of Interlocutory Application No. 193 of 2007 to the

guardian advocate of minor respondents no. 11 to 21 and 23 to 25

which was peremptory and due to non-compliance the appeal

stood rejected with regard to deceased appellant no. 2 and

respondent no. 9.

7. Learned counsel for the appellants submitted that the

Court may take a lenient view as it is a partition suit and the right

of the parties exist which should be allowed to be adjudicated on

merits. However, on a query of the Court with regard to there

being no substantive explanation for the delay, learned counsel

could not give any reply.

8. Having considered the matter, the Court finds that

there is an adjudication by the original Court and, thus, it cannot

be said that the rights have not been adjudicated. Once a law is in

place, which in the present case is the law of limitation, and the

period prescribed for substituting a dead person/party, is within 90

days and multiple parties not being substituted for years together,

the maximum being 20 years, the Court does not find it persuaded

to interfere in the abatement.

9. Coming to the question of whether the entire appeal

would stand abated, it is obvious that in a partition suit, till the

decree is passed, in the entire property, there is indivisible and Patna High Court FA No.408 of 1973 dt.18-01-2023

inseparable jointness. Thus, the absence of so many persons whose

share is in the corpus of the suit property, not being party in the

appeal clearly has made the entire appeal incompetent to be

proceeded with any further. The Court also notes that the ratio of

the decisions of the Hon'ble Supreme Court in Majji Sannemma

alias Sanyasirao (supra) and Budh Ram (supra) apply in the

facts and circumstances of the present case in favour of the

contention of learned counsel for the respondents no. 9 and 19.

10. Accordingly, Interlocutory Applications No. 4138 of

2018 and 24 of 2021 stand allowed. As a consequence, the First

Appeal itself stands dismissed as abated.

11. Having held that the First Appeal itself has abated,

all pending Interlocutory Applications having become infructuous,

stand disposed of.

(Ahsanuddin Amanullah, J)

Anjani/-

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