Jharkhand High Court
Shank Nath Tiwari And Ors. vs Raj Nandan Tiwary And Ors. on 21 January, 2003
Equivalent citations: [2003(1)JCR624(JHR)], 2003 AIR - JHAR. H. C. R. 686, 2003 A I H C 2315 (2003) 1 JCR 624 (JHA), (2003) 1 JCR 624 (JHA)
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This appeal filed by the plaintiff/appellants under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 2.9.1991 passed by VIIth Additional District Judge, Palamau in Title Appeal No. 31/85, whereby he has allowed the appeal and reversed the judgment and decree dated 29,3.1985 passed by Sub-Judge Palamau, Daltonganj in Partition Suit No. 31/84 and dismissed the suit.
2. The admitted facts of the case are that the land of Khata No. 30 plot No. 42 measuring an area of 3.58 acres of village Kurainpatra P.S. Leshliganj in the district of Palamau was originally recorded in the last cadastral survey records of right in the name of one Nageshwar Shukla Mentioning therein that one Sheodhari Tiwari was in cultivating possession as under raiyat. A separate darraiyati khata No. 6 was also prepared in respect of this land in the name of Sheodhari Tiwari. The case of the plaintiffs appellants is that the recorded raiyat Nageshwar Shukla surrendered the aforesaid land to the Khas Mahal Officer and the Khas Mahal Department later on made permanent raiyati settlement of the said land in the joint names of Deo Narayan Tiwari and Jeo Nandan Tiwari, sons of Sheodhari Tiwari and Nema Tiwari son of Pachu Tiwari, In course of settlement proceeding Jeo Nandan Tiwari died leaving behind a son Raj Nandan Tiwari (defendant No. 1) and accordingly, a new holding No. 83 was opened in respect of this land in the joint names of Deo Narayan Tiwari son of Sheodhari Tiwari, Raj Nandan Tiwari son of Jeo Nandan Tiwari and Nema Tiwari son of Pachu Tiwari. The plaintiffs are the heirs of Nema Tiwari, and the defendants are the heirs of Deo Narayan Tiwari. Thus plaintiffs filed partition suit No. 31/84 for decree for partition of half share in the suit property as according to them they have half share in the property while defendants appellants representing the branch of Sheodhari Tiwari have the other half share in the property.
3. The defendants respondents contested the suit. Their case in the written statement is that after the death of Sheodhari Tiwari his five sons namely, Deo Narayan Tiwari, Ram Briksha Tiwari, Jeo Nandan Tiwari, Narayan Tiwari and Ram Brij Tiwari succeeded the entire suit property and came in cultivating possession of the same. Deo Narayan Tiwari being the eldest member was karta of the family and on behalf of other brothers he entered into an arrangement with Nageshwar Shukla whereby Nageshwar Shukla surrendered his raiyati interest in. the suit land to the Khas Mahal and thereafter Deo Narayan Tiwari for himself and on behalf of all his brothers got the raiyati settlement from Khas Mahal and thus he alongwith his brothers and their heirs continued in cultivating possession of the entire suit land. Further case of the defendants is that initially jamabandi holding was numbered as 81 in the name of Deo Narayan Tiwari and his brothers. Subsequently some how or other in the rent receipts jamabandi holding came to be mentioned as 83. Their further case is that before the aforementioned partition suit, there was a proceeding under Section 145, Cr PC where it was admitted that all the five sons of Sheodhari Tiwari have their residential houses, and well in the suit property. In that preceding the remaining area of the suit land was in dispute and the plaintiff respondents had claimed 1/3rd share in the suit land. The plaintiffs lost the proceeding under Section 145, Cr PC in which the Court found the appellants-defendants and heirs of the other three brothers to be in possession of the suit land. The said order was affirmed in criminal revision also. According to the defendants therefore a simple suit for partition is not maintainable and further that suit is bad for non-joinder of the other brothers of Deo Narayan Tiwari in whose favour also possession was declared under Section 145, Cr PC.
4. The trial Court on the issue of maintainability of the suit held that there was no need for the plaintiff to seek declaration of title and recovery of possession merely because of an adverse order passed in a proceeding under Section 145, Cr PC for the reason that possession of one co-sharer is possession of all co-sharer. Learned trial Court further held that since settlement was made only with Deo Narayan Tiwari, Jeo Nandan Tiwari and Nema Tiwari and it was not made with other three brothers of Deo Narayan Tiwari, so the other brothers are not necessary party and the suit is not bad for non joinder of necessary party. Accordingly the trial Court decreed the suit.
5. The defendants aggrieved by the said judgment and decree preferred Title Appeal No. 31/85. The learned lower appellate Court reversed the finding recorded by the trial Court. The appellate Court held that even if the settlement was alleged to have been made in favour of the three persons, it does not lead to the inference that they only came in possession. The Khas Mahal who had never come in actual possession could not have put the three settlees in actual possession. Learned Court below further found that there was sufficient evidence that all the heirs of Deo Narayan Tiwari and his four brothers had fought the proceeding under Section 145, Cr PC and they all had been declared to be in joint possession of the suit property. Admittedly, other brothers and heirs of Deo Narayan Tiwari were not made party nor any declaration sought for against them The appellate Court therefore held that no decree for partition could be passed in the suit.
6. Hence, this second Appeal which was admitted by this Court on the following substantial question of law :
"Whether the learned Court of appeal below is correct in its finding that the persons who are parties in a proceeding under Section 145, Cr PC are necessary parties in the suit for partition, although, they may not be a co-sharer."
7. Mr. N.K. Prasad, learned senior counsel for the appellants assailed the impugned judgment passed by the Court of appeal below as being contrary to the law and evidence on record. Learned counsel submitted that the trial Court has correctly appreciated the law that the adverse order passed under Section 145, Cr PC will not effect the aggrieved person in respect of his title and claiming possession with other co-sharer. Learned counsel submitted that the Court of appeal below has totally failed to consider Ext. 3 which is the sheet anchor of the plaintiffs' case that the said property was settled by the Khas Mahal only in favour of three persons and not a person in whose favour a proceeding under Section 145, Cr PC was decided.
8. It is well settled that though an order under Section 145, Cr PC confers no title, the fact of possession remains and the person in possession can only be evicted by a person who can prove a better title or possession. Possession of all the parties who succeeds in proceedings under Section 145, Cr PC can not be put to an end by the unsuccessful party by mere violence or surreptitious invasion. In the case of "Ambika Thakur and Ors. v. Emperor", AIR 1939 Patna 611, a Division Bench of Patna High Court while considering the effect of order passed under Section 145, Cr PC therein held :--
"With all respect to Cuming J. we are unable to agree in his view of an order under Section 145. The whole object of the section is to stop a breach of the peace by deciding which party is to remain on the land and which party is to seek his remedy in the Civil Court. Breaches of the peace will continue, and the object of the legislature will be frustrated if the party who has, on the finding that he is not in possession, been forbidden to disturb the possession of the successful party until eviction in due course of law, is allowed to interfere with the possession of the successful party and to plead once more that whatever the order might have been, he is still in possession or has been able to regain in possession by force, and thus either compel the successful party to go to the Civil Court or to coerce a Magistrate to proceed against under Section 145, Criminal P.C. This will be a definite encouragement to disobedience of orders under the section."
9. Admittedly, Sheodhari Tiwari had five sons namely, Deo Narayan Tiwari, Ram Briksha Tiwari, Jeo Narayan Tiwari, Narayan Tiwari and Ram Brij Tiwari. Plaintiffs are the heirs of Nema Tiwari while the defendants are the heirs of Deo Narayan Tiwari, son of Sheodhari Tiwari. Un-disputedly, since Sheodhari Tiwari and their heirs have house, well and trees over an area of 1.50 acres, which was not in, dispute in a proceeding under Section 145, Cr PC. The lower appellate Court has recorded a finding that admittedly other sons and their heirs have been in possession of portion of the property and admittedly they are co-sharer with other sons of Sheodhari Tiwari and Nema Tiwari. It is also admitted possession that in the proceeding under Section 145, Cr PC all the heirs of Deo Narayan Tiwari and his four brothers contested the proceeding and they have been declared to be in joint possession over the suit property. In my opinion, therefore, the Court of appeal below is perfectly justified in holding that a simple suit for partition only against the heirs of Deo Narayan Tiwari and Jeo Nandan Tiwari without impleading the others heirs of the three brothers in whose favour possession was declared is not maintainable, the Court below correctly held that the suit for partition without seeking a declaration is also not maintainable. The Court of appeal below therefore rightly reversed the finding recorded by the trial Court.
10. For the aforesaid reasons, I do not find any merit in this appeal, which is accordingly dismissed.