Patna High Court - Orders
Smt.Ram Dulari Devi & Ors vs Usha Devi & Ors on 28 April, 2014
Author: Birendra Prasad Verma
Bench: Birendra Prasad Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.902 of 1972
======================================================
1. Smt. Ram Dulari Devi wife of Ram Sewak Singh.
2. Gopal Prasad Singh
3. Gobind Prasad Singh
4. Devaki Nandan Singh
5. Radha Krishna Singh
6. Krishna Singh
Nos. 2 to 6 sons of Ram Sebak Singh ,
7. Ram Sebak Singh son of Bachi Singh
All residents of village- Palidih, P.S. Bachwara, District- Monghyr also
residing at village Saidpur Tola Sahmirpur, P.S. Gopalpur, Dist.
Bhagalpur.
.... .... Plaintiffs..... Appellant/s
Versus
1. Parmeshwari Kumar son of Late Munsi Kumar (Expunged vide order
dated 24.10.1973 and his heir is already on record as respondent
no.2).
2. Shyamdeo Kumar son of Parmeshwari Kumar (Expunged vide order
dated 17.05.2000 and his heirs and legal representatives are
substituted.)
2(i) Usha Devi wife of late Shyamdeo Kumar, resident of village- Shaidpur
Tola Sahmirpur, P.S. Gopalpur, District Bhagalpur.
ii) Bina Devi daughter of late Shyamdeo Kumar wife of late
Sharandhar Singh, resident of village Ramnagar Tola Ramdiri, P.S.
Matihani, District- Begusarai.
(iii) Mira Devi daughter of Late Shyamdeo Kumar wife of Sri Niwash
Singh, resident of Pokharia, Kalaishton Road, P.S. and District Begusarai.
(iv) Muni Devi wife of Anil Singh, resident of Loverchak Ramdiri, P.S.
Matihani, District- Begusarai.
3. Baikunth Kumar son of late Pandit Kumar.
4. Lal Kumar
5. Nandan Kumar, both sons of Baikunth Kumar,
residents of village Saidpur Tola Sahmirpur, P.S. Gopalpur, District
Bhagalpur.
.... Defendants.... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Binod Kumar Singh
For the Respondent/s : Mr.
======================================================
CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
39 28-04-2014The present First Appeal has been filed against the judgment and decree dated 13th May 1972 passed in Title Suit No. 72 of 1967 by the learned 3rd Additional Subordinate Judge, Patna High Court FA No.902 of 1972 (39) dt.28-04-2014 2/3 Bhagalpur.
The plaintiffs- appellants herein brought the aforesaid suit for partition against the defendants for allotting a separate Patti of 14 annas share with respect to schedule-A property, a separate patti of 8 annas share in schedule-B property and for one
- third share with respect to schedule-C property. Besides that, other incidental reliefs were also sought for.
By the impugned judgment and decree, the aforesaid suit for partition was dismissed on contest with costs in favour of defendant no. 2, but without costs in favour of the remaining defendants.
By office note dated 23.04.2014, it has been pointed out that the present appeal, vice appellant no. 2 to 5, stood rejected on account of non-compliance of the Court's order dated 05.03.2014 and the appeal has become incompetent as it arises out of a judgment and decree passed in a partition suit. Therefore, competency matter of the present appeal has been placed for consideration by this Bench.
Mr. Binod Kumar Singh, learned counsel appearing on behalf of the appellants, has fairly submitted that despite all communications made to the appellants and despite all efforts made by him, he has not been able to get instructions from the appellants to press this appeal. He next submitted that in absence of the instructions from the appellants, the order dated 05.03.2014 could not be complied with, which was peremptory in nature. According to him, in absence of instructions he is not in a position to press this appeal.
In the aforesaid facts and circumstances and in view of the submissions made by the learned counsel appearing on behalf Patna High Court FA No.902 of 1972 (39) dt.28-04-2014 3/3 of the appellants, the appeal as a whole has to fail, and is, accordingly, dismissed, as not pressed, but without costs.
(Birendra Prasad Verma, J) BTiwary/-