Jharkhand High Court
Badri Prasad vs Rajendra Prasad & Ors on 8 August, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 92 of 2005
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Badri Prasad .... .... .... Appellant
Versus
Rajendra Prasad & Ors. .... .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellant : Mr. Rahul Kr. Gupta, Advocate For the Respondents : Mr. Birendra Kumar, Advocate : Mr. Niraj Kishore, Advocate : Mrs. Shobha Rani, Advocate
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Order No.24 Dated- 08.08.2024 I.A. No.6380 of 2024 Learned counsel for the appellant submits that this interlocutory application has been filed with a prayer to formulate the three additional substantial questions of law. It is next submitted that this second appeal has been preferred against the judgment and decree dated 11.03.2005 passed by the District Judge, Latehar in Partition Appeal No. 06 of 2004 affirming the judgment and decree dated 15.03.2004 passed by Additional Sub Judge- II, Latehar in Partition Suit No. 01 of 1999. It is next submitted that vide order dated 11.05.2009 the following substantial question of law has been framed "Whether the nucleus of the joint family, having enough savings neither having been pleaded in the plaint nor any specific evidence worth the same having been produced by the plaintiffs either oral or documentary the suit for partition could have been decreed by the courts below, which was filed only with respect to properties of defendants?"
It is then submitted that following three additional substantial questions of law are required to be framed:-
(a) Whether in view of the undisputed fact that the plaintiff had left out certain joint family property whether the suit for partial partition was maintainable?
(b) Whether the courts below have erred in applying the principles of Hindu Law for decreeing the suit for partition only with regard to the property which were standing in the name of Bechu Sao and excluding the properties standing in the name of Chaturgun Sao?
(c) Whether the courts below were right in decreeing the suit for partition with regard to the properties, for which Kardhani Sao had relinquished rights in favour of Bechu Sao, particularly when the said registered deed of release/relinquishment was never challenged by Kardhani Sao or Chaturgun Sao in any appropriately constituted suit?
The learned counsel for the respondents on the other hand opposes the prayer for formulating additional substantial question of law. It is submitted that so far as the proposed additional substantial question of law as mentioned in paragraph no. 4 (a) of this interlocutory application is concerned, the trial court has already framed issue no. (v) and decided the same in paragraph no.18 and in the lower appellate court the defendants had not pressed their counter claim, thus, the finding of the issue no. (v) having been attained finality no additional substantial question of law is required to be framed. In respect of the additional substantial question of law at paragraph no. 4 (b), it is submitted by the learned counsel for the respondents that there are concurrent finding of facts about nucleus of joint family and mandate of Hindu Law has recognized self-acquired property by a coparceners used to earn on his own income thus finding recorded by trial court in paragraph no.18 as well as finding recorded by lower appellate court in paragraph no.14 and 15 shows that the proposed additional substantial question of law stated in paragraph no. 4 (b) is not required to be framed for its determination in this appeal. In respect of proposed substantial question of law at paragraph no.4 (c), it is submitted by the learned counsel for the respondents that there are concurrent finding of facts that the release deed (Exhibit C/1) is not valid document as per provision of Hindu Law as discussed in paragraph no. 16 by the trial court as well as in paragraph nos. 14 and 17 by the lower appellate court thus, the proposed additional substantial question of law stated in paragraph no. 4 (c) is not required to be framed for its determination in this appeal. Hence, it is submitted that this interlocutory application being without any merit be dismissed.
Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the issue no. (v) settled by the trial court in Partition Suit No. 01 of 1999 is to the effect that "Whether the counter claim of the defendant is acceptable?" and the same has been answered by holding that the counter claim was in respect of the property individually acquired by Chaturgun Sao but the said property by Chaturgun Sao could not be established to be joint family property hence the trial court held that there is no justification for entertaining the counter claim but perusal of the record reveals that it is the admitted case of the plaintiff having been mentioned in paragraph no.8 of the plaint itself that there are other properties also recorded in the last cadastral survey in the name of Kardhani Sao and his brothers and son Lakshman Sao which is not included in the suit and as the heirs of Lakshman Sao have also to be impleaded and thereby unity of title and possession would be disturbed. In view of such admission of the plaintiff, this Court is of the considered view that the answer to the issue no. (v) as discussed above in this order, relates only to the property of Chaturgun Sao, but the undisputed fact remains in view of the admission of the plaintiff in para-8 of the plaint, that there remains other joint family properties; which are not the subject matter of the suit. Thus, this Court is of the considered opinion that the proposed substantial question of law intended to be raised by the appellants as to "whether in view of the admitted case of the plaintiff that certain portion of the joint family property has not been included in the suit nor the other coparceners been impleaded as parties to the suit; this suit for partial partition is maintainable?"
So far as the proposed additional substantial question of law at paragraph no. 4 (b) is concerned, it is fairly submitted by the learned counsel for the appellant, when this order is being dictated that the same is covered by the original substantial question of law which has already been framed in this second appeal and in fact that there is force in the said submission of the learned counsel for the appellant. Hence, this Court is not inclined to allow the prayer to accept the proposed additional substantial question of law at paragraph no. 4 (b).
So far as the third additional substantial question of law, as mentioned at paragraph no. 4 (c) proposed to be formulated, in view of the concurrent finding of fact by both the courts below that relinquishment deed was not a valid one and there being no infirmity on such concurrent finding of fact by both the courts below, this Court do not find any justification to formulate the proposed the additional substantial question of law as mentioned in paragraph no. 4 (c) of this interlocutory application.
In the result, this interlocutory application is allowed in part by formulating only the following additional substantial question of law.
"Whether in view of the admitted case of the plaintiff that certain portion of the joint family property has not been included in the suit nor the other coparceners been impleaded as parties to the suit; this suit for partial partition is maintainable?"
This Interlocutory Application is disposed of accordingly.
(Anil Kumar Choudhary, J.) S.A. No. 92 of 2005 Heard the parties.
The following additional substantial question of law is formulated:-
(i) "Whether in view of the admitted case of the plaintiff that certain portion of the joint family property has not been included in the suit nor the other coparceners been impleaded as parties to the suit; this suit for partial partition is maintainable?"
Learned counsel for the respondents prays for time. Prayer for time is allowed as the last chance. List this appeal after a week under the heading 'for Final Disposal'.
Sonu-Gunjan/- (Anil Kumar Choudhary, J.)