Patna High Court - Orders
Raj Narain Rai & Anr vs Shatrughan Roy & Ors on 11 September, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.348 of 1994
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Raj Narain Rai & Anr
.... .... Appellant/s
Versus
Shatrughan Roy & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Madhav Roy
Mr. Prabhakar Jha
Mr. Anil Kumar Jha Astik
For the Respondent/s : Mr. Madan Mohan Pd. Singh
Mr. Amar Nath Gupta
Mr. Bipin Kr.Sinha
Mr. B.K.Pandey
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL ORDER
52 11-09-2012I.A. No. 7100 of 2010 This interlocutory application has been filed on behalf of the appellants stating therein that the respondent no. 6, namely, Suraj Devi died on 08.02.2001 and respondent no. 4 (a), namely, Saraswati Devi died on 18.06.2009 leaving behind their heirs and legal representatives as mentioned in paragraph no. 8 and paragraph no. 5 of the petition respectively. Another I.A. No. 7099 of 2010 has also been filed on behalf of the appellants praying for condonation of delay in making the prayer for substitution within time. The respondent no. 5 (a) to 5 (d) has filed a separate interlocutory application (I.A. No. 1784 of 2010) praying therein that the appeal has abated against the heirs of the respondent no. Patna High Court FA No.348 of 1994 (52) dt.11-09-2012 2 4(a) and respondent no. 6 for want of substitution within time.
Heard the learned counsels for the parties on the aforesaid three interlocutory applications.
This appeal has arisen out of a suit for partition and has been filed by the plaintiffs after the dismissal of the suit. However, while dismissing the suit with regard to the claim of the plaintiffs, the learned court below has granted the decree for partition in favour of defendant nos. 7 and 8 as well as defendant no. 5, his wife and their sons, and thereafter a final decree was also prepared allotting different Takhatas to the parties. After the preparation of the final decree two more appeals were filed against the final decree; F.A. No. 152 of 1997 has been filed by the present appellants and first appeal no. 184 of 1997 has been filed by the heirs of the respondent no. 5 (since deceased). By order dated 02.09.2005 passed in F.A. No. 184 of 1997, the three appeals i.e. the instant First Appeal No. 348 of 1994, First Appeal No. 152 of 1997 and First Appeal No. 184 of 1997 have been directed to be heard analogously.
It is not in dispute that in First Appeal No. 152 of 1997 the prayer for substitution of the heirs of the deceased respondent no. 6, namely, Suraj Devi has already allowed on 2nd March 2003, and further notice in the substitution matter has been issued to the Patna High Court FA No.348 of 1994 (52) dt.11-09-2012 3 heirs of the deceased respondent no. 4(a), Saraswati Devi.
It has been submitted by the learned counsel for the appellants that in view of the aforesaid facts and also in view of the fact that the respondent no. 4 (a) Saraswati Devi and respondent no. 6 Suraj Devi are the daughters of the family and their interest is represented by their brothers, there would be no question of abatement even in case of non-substitution of the heirs in view of the decision rendered by a Full Bench of this Court in the case of Yogendra Bhagata Vs. Pritlal Yadava, 2009 (3) PLJR 696.
As all the three appeals have been made analogous and in another appeal the heirs of respondent no. 6 has already been substituted and notice has already been issued to the heirs of respondent no. 4(a) in the substitution matter, it appears just and proper that the heirs of respondent no. 6, namely, Suraj Devi, who has relinquished her share in favour of the respondent no. 5 apparent from the statement made in the written statement be also substituted, and further the notice in the substitution matter should go to the heirs of the deceased respondent no. 4(a) Saraswati Devi. It is done so accordingly.
The appellants are directed to take steps for issue show cause notice in the substitution matter for the proposed heirs of the Patna High Court FA No.348 of 1994 (52) dt.11-09-2012 4 respondent no. 4(a) for which the appellants must file requisites both under registered cover as well as by ordinary process within two weeks, failing which the substitution matter shall stand rejected without further reference to a Bench.
Issue appeal notices to the substituted heirs of the respondent no. 6 for which the appellants must file requisites both under registered cover as well as by ordinary process within two weeks, failing which the appeal as against them shall stand rejected without further reference to a Bench.
I.A. No. 3796 of 2012 This interlocutory application has been filed on behalf of the respondent no. 5 (c), namely, Sri Ram Rai praying for permission to transfer the lands mentioned in the supplementary affidavit. The counter affidavit has also been filed on behalf of the appellants.
Mr. Bipin Kumar Sinha, the learned counsel appearing on behalf of the respondent no. 5 (c) has submitted that the property which has been sought to be transferred for the purpose of raising funds for meeting the expenses of the marriage of his daughter which has been performed after taking loans and entering into an agreement for sale for the part of the suit land. It has been further submitted by the learned counsel that the property as Patna High Court FA No.348 of 1994 (52) dt.11-09-2012 5 mentioned in paragraph 2 of the supplementary affidavit are not beyond his share in the suit properties and have been allotted in the final decree proceeding in his Takhata. It has further been contended by the learned counsel that in view of the order dated 16.05.2012, this Court while restraining the parties from alienating the properties has further directed that the parties may transfer the suit property after seeking permission from the court. It has been pointed out by the learned counsel that the said observations and directions have been given in view of the statement made by him in his reply to the interlocutory application filed by the appellants for injunction.
Mr. Madhav Roy, the learned counsel appearing on behalf of the appellants has contested the prayer and has submitted that there is no actual need to the respondent for transferring the suit property. It has been urged by the learned counsel that the respondent along with other respondents have already transferred the property beyond their share in the suit property and if the permission will be granted, it will prejudicially affect the interest of the appellants. However, the learned counsel appearing on behalf of the appellants could not point out any specific statement that the respondent, who has sought the permission to transfer the property as mentioned in paragraph 2 of his supplementary Patna High Court FA No.348 of 1994 (52) dt.11-09-2012 6 affidavit, has already transferred the suit properties beyond his share in face of the specific stand of the learned counsel appearing for the respondent no. 5 (c) that the property with regard to which the permission has been sought to transfer, is not beyond his share in the suit property. The leaned counsel for the appellants has prayed that he may be given opportunity to file a supplementary affidavit making the position clear.
Put up this matter again on 13th September 2012 at 3.30 P.M. under the same heading.
(V. Nath, J) Devendra/-