Jharkhand High Court
Poonam Jain vs Gauri Shanker Jain on 4 December, 2020
Equivalent citations: AIRONLINE 2020 JHA 1367
Author: Ananda Sen
Bench: Ananda Sen
1
FIRST APPEAL No. 195 of 2013
[Against the Judgment dated 20.08.2013 (Decree
signed on 29.08.2013) passed by the Senior Civil
Judge I, Sahebganj in Title Suit No.16 of 1978]
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1. Poonam Jain
2. Bivek Kumar
3. Riya Jain
4. Pradeep Kumar Jain
5. Ashok Kumar Jain
6. Prakash Kumar Jain
7. Vikash Kumar Jain
8. Rinki Jain
9. Premlata Megotia
10. Hemlata Gupta ... Appellants
-versus-
1. Gauri Shanker Jain
2. Kailash Kumar Jain
3. Parmanand Jain ... Respondents
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For the Appellants : Mr. Sashank Shekhar, Advocate
For the Respondents : Mr. Amit Kumar Das, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANANDA SEN
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JUDGMENT
Reserved on 17.07.2019 Pronounced on 4.12.2020
1. This appeal is filed under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment dated 28.08.2013 and the decree dated 29.08.2013 by which the Title Suit No.16 of 1978, filed by the plaintiffs (appellants herein) has been dismissed.
2. A plaint was filed by the plaintiffs, which was registered as Title Suit No.16 of 1978, praying for a decree for partition of the properties mentioned in various schedules of the plaint and an order for separate possession. A decree for mesne profit was also prayed for with a direction for taking up of accounts.
3. The plaintiffs stated in their plaint that the parties are members of Joint Hindu Undivided Family and Khemraj Jain is the common ancestor. The parties are governed by Mitakshara School of Hindu Law. As per plaint, plaintiff Manilal Jain and Defendant Madan Lal 2 Jain are brothers constituting HUF. The case of the plaintiffs is that parent business of Hindu Undivided Family is running in the name and style of M/s. Khemraj Mandan Lal dealing in cement and salt etc. and it was being operated at Rajmahal. In addition to above, the firm is doing the business in several branches at Barharwa, Pakur, Sahibganj, Amrapara, Dhuliyan, Malda, Kolkatta, Chakai etc. They also deal in business of transport having several tractors, cars which were detailed in Schedule C of plaint. This family owns agricultural land and builds several building whose description is in Schedule D and E. This family has also several Bank accounts in different banks which have been detailed in Schedule F and jewelery, utensils, carpet and furniture in Schedule G. It is further case of plaintiffs that plaintiff No.1 used to remain out in connection with management of different business, litigations including income tax and sales tax and taking benefit of his engagement, defendants began to make personal capital out of the income of joint family funds and defendants by using the joint fund were making their separate business due to which already existing business of Petrol Pump, kerosene oil were closed due to mis- management by defendants and thus relationship between plaintiff No.1 and defendant No.1 became strained and the plaintiff No.1 was not given access to books of accounts. Then he demanded partition in the year 1976 at the occasion of Ramnavami and after evading for a considerable period the defendant No.1 entered into an agreement with plaintiff No.1 on 27.07.1976 agreeing to complete the account of entire business for effecting the partition but on one pretext or other it was not done and in the meantime the defendants continued to make wrongful gain from the business of family. It is further case that ultimately plaintiff No.1 and defendant No.1 agreed to partition by referring the matter to sole arbitrator Sri Baluram Dhaliwal who is husband of their sister and accordingly an arbitration agreement dated 19.09.1976 was drawn up but defendant did not cooperate with the arbitrator and ultimately arbitrator gave up the arbitration proceeding. The plaintiffs, then finding no option, filed the suit. As per plaintiff, the cause of action arose for suit on 27.07.1976 and on several dates when demand for partition was made. The plaintiffs sought
(a) a decree for partition by metes and bounds of properties mentioned in the various schedules and separate possession; (b) a decree for mesne profits with a direction for taking of accounts; (c) cost of the suit; (d) any other relief or reliefs the Court may deem fit and proper. The schedule was later on amended by deleting some of the properties.
34. After registration of the suit, the defendants were noticed. The defendants appeared and filed their written statement. In their written statement, the defendants have pleaded that the suit is not maintainable in the present form as final partition has already been effected years back and dishonestly or maliciously plaintiffs have brought this suit for partition of those properties which are exclusively belonging to defendants and excluded those properties which were allotted to plaintiffs. The case of defendants is also that the suit suffers from non-joinder of necessary parties as their sister Saraswati Devi has not been made party although likewise the plaintiffs have not impleaded state of Bihar as party who is the owner of several landed properties situated in Mauza Kasba and Araji Mokimpur. The defendant has also pointed out that truck No. BRH 1741 and BRH 2425 have been shown in possession of Chhedi Lal, but he was not impleaded as parties in the suit. In para 5 of the written statement, defendants have specifically stated that the suit is liable to be dismissed for not including valuable properties viz. five ancestral buildings and godowns of the parties situated at Rajmahal, K.M. Industries Bagususma, P.O. Gobindpur, District Dhanbad, Transport business run at Gobindpur, about 45 bighas of mineral based land with mining right in Mouza Sobhapur-Mokimpur, Khemanika Minerals, Rajmahal, Stone quarry with one bed, ford Truck, Crusher, Trolley and Trolley line near Tinapahar Station, Keshofulli Colliery at Village Kishofulli, P.S. Barhait, Araji Mokimpur China Clay Mines at Mouza Araji Mokimpur Rajmahal, Kasbha mining corporation at Mouza Kasba Rajmahal, Bank Accounts standing in the name of Manilal Jain, Sahaibganj, Bank accounts standing in the name of Minilal Jain, Sahaibganj, Bank Account with State Bank, Rajmahal standing in the name of plaintiffs No.3 and 4. Besides the landed properties which have since been excluded from the suit properties by amending the plaint. Other original and joint family properties not included in the suit have been described in the list enclosed as a part of the written statement. It has been pleaded for the defendants that the suit is bad for misjoinder of properties or business like Kailash potteries, Saidpur Bujruk China Clay Mines mentioned in Schedule A/3 and sl. No.4 of Schedule A/4 of Plaint, Nimta K. Oil business included in Schedule B/3 and jewelries etc. mentioned in Schedule F of the plaint, which never belonged to the joint family of the parties and are either separate or self acquired properties of defendant No.3 or jointly of defendant Nos.1 and 2 or are stridhan properties of the females of the house of the defendants. The suit is bad 4 and fit to be dismissed for want of notice under Section 80 of the Code of Civil Procedure to the State of Bihar, whose properties have been claimed in the suit. The suit at least with respect to landed properties and mining right in such properties included in the suit is hit by provisions of Section 5 of the Santhal Parganas Settlement Regulation, 1872, in view of the Notification No. S.O. 1387 dated 14.10.1977 issued under Section 9 of the said regulation with respect to Rajmahal Subdivision which has resulted in divesting the Court of the jurisdiction to entertain and decide such suits with respect to any land or interest in the land. Exclusion of some landed properties by amendment of the plaint covered by notification issued under settlement Regulation 3 of 1872 has resulted in making the suit as one of partial partition which is not maintainable. Moreover, the various items mentioned in Schedule left after amendment like machineries, Vats, tanks, platforms washing plants, office etc. which are part of land attached to land and un-removable cannot be the subject of partition in view of the settlement Notification No. S.O. 105 dated 17.01.1978 and S.O. 1079 dated 08.08.1978 as the partition of the above items means partition of land on which the same are situated. The present suit has been filed without any basis or cause of action whatsoever and only to harass, injure and damage the defendants. In paragraph 10 of the written statement, the defendants have admitted the genealogical table given with plaint and in the same paragraph it has been asserted by the defendants that at the occasion of Diwali of the Samvat year 2028 corresponding to 18.10.1971, there was break in the Joint Family status and partial partition in family properties and business have been done and the said separation has been mentioned in sub para 1-4 of this paragraph of written statement. It has further specifically mentioned in paragraph 12 that after partition in 1971, rest properties were partitioned on 23.11.1976 and these description has been given in sub paragraphs with detailed properties went in share of different shareholders. The defendants have also pointed out that the plaintiff No.1 being karta of the family has committed several misappropriation in favour of his own family but when the defendants have developed their business after partition, then plaintiffs have maliciously and intentionally came with this suit for partition with several non existing properties or for those properties which were allotted to defendants in partition. The defendants challenged the suit on the ground of valuation also saying that the suit is not properly valued. The defendants have denied the properties mentioned in Schedule E to F mentioning incorrect 5 and incomplete and omitted dishonestly and several Bank Accounts which have already been closed by plaintiff No.1 which has also been mentioned as suit properties. The defendants have also raised point that ornaments and jewelery are stridhan properties of different female family members and at the time of amicable partition utensils, furniture have also been partitioned and the defendants have also supported their case that after amicable partition plaintiffs and defendants have submitted the matter before the Income Tax authorities which were accepted and both parties are being assessed individually for individual business as allotted or started by them respectively. The defendants have also mentioned specifically in para 5 of the written statement about the properties which were not disclosed by the plaintiffs in Schedule A to E and a list has been furnished at the last of written statement. Thus, in short, the case of defendant is that partition has already effected in the year 1971 and finally in the year 1976 and no joint family exists consisting of plaintiffs and defendants. Whatever properties have been shown as suit properties, most of them were allotted to defendants or either those properties which are not existing and several properties which are under control of plaintiffs have not been included in the schedule of suit property and thus, the details of suit properties is vague and cannot be identified so the suit may be dismissed on the basis of above defects.
5. On the basis of the pleadings of the parties, the Court below framed the following issues: -
1. Is the suit as framed maintainable?
2. Have the plaintiffs valid cause of action?
3. Is the suit hit due to non joinder of parties?
4. Has this court territorial jurisdiction to hear the suit?
5. Is there unity of title and possession in between the parties or partition has already taken place as pleaded by the defendants?
6. Are the plaintiffs entitled to a decree for partition as prayed for?
7. Are plaintiffs entitled to get any other relief or reliefs, if any, to what other relief?6
6. Plaintiffs have examined the following witnesses as oral evidence: -
P.W.1 Md. Nashimuddin, P.W. 2 Basudeo Prasad Sah, P.W.3 Ramavtar Agrawal, P.W.4 Shanker Mishra, P.W.5 Uttam Prasad, P.W.6 Dilip Kumar Sah, P.W.7 Bishwanath Sharma, P.W.8 Subhash Chandra Das, P.W.9 Kishore Sharma, P.W.10 Umesh Kumar Singh, P.W.11 Rajkumar Jain, P.W.12 Binod Sharma and P.W.13 Fulchand Mandal.
7. Plaintiffs have also brought the following documentary evidence:-
Ext.1 to Ext. 1/a Signatures of Gauri Shankar Jain Ext. 1/b to Ext. 1/E Signatures of father of Gauri Shankar Jain Ext. 1/F Signature on petition of Balu Ram Dhariwal Ext. 1/g Letter of IBP Company Ext.1/h Letter of IBP Company Ext.2 to 2/b Three affidavits Ext.3 Indemnity Bond in three sheets Ext.4 Agreement dated 27.07.76 Ext.4/A Letter of Balu Ram Dhariwal Ext.5 Receipt No.929754 dated 27.02.1993 Ext.6 Lease deed Khemanika Minerals Ext.7 Writing of Ramchandra and Gourishanker Jain substituted by X/5 Ext.7/a Writing of Janardhan Prasad Gupta and Gourishanker Jain substituted by x/6 Ext.7/b Signatures of Gourishanker Jain and Dip Narayan Babu on typed letter substituted by x/7 Ext.7/c Signatures of Gaourishanker Jain and Gopal Babu on typed letter substituted by x/7 Ext.8 Certified copy of order Ext.1/i Writing of Kailash Prasad Jain on parcha substituted by X/1 Ext.1/j Writing of Kailash Prasad Jain on parcha substituted by X/3 Ext.1/k Receiving of Senior Sales Officer K.P.A. Banerjee.
Substituted by X/10 Ext. 1/L Signatures of Gopal Babu and Kailash Babu substituted by A/11 Ext.1/M and 1/N Signatures of Gopal Babu and Kailash Babu substituted by x/12 and A/13 Ext.1/o Signature of Madan Lal Jain substituted by x/14 7 Ext.8/a Order sheet dated 21.10.70 to 18.07.97 Ext.8/b Order sheet 21.10.90 to 11.08.98 Ext. 8/c Certified copy of order dated 21.10.70 196(R)(1) Ext.8/d Certified copy of order dated 21.10.70 195(R)(iii) Ext.9 Certificate of Registration Ext.9/a Certificate of Registration dated 17.05.78 Ext.9/b Certificate of Registration dated 17.05.78 Ext.9/c Registration no.1477 Receipt no.202656 issued by Weight & Measurement Department Ext.1/P Letter of Chief Inspector No.6133 dated 31.05.75 Ext.1/O Letter No.2036 dated 10.09.82 of Labour Superintendent Ext.1/R Amendment of Certificate dated 21.12.75 Ext.1/S Signature of Gaourishanker Jain on letter dated 28.09.88 Ext.1/T Amendment of Certificate Registration Ext.1/u to 1/y Four letters Ext.1/z Letter of Khemraj Mandal dated 30.4.77 Ext. 1/z/1 Carbon copy of power dated 30.4.77 Ext. 1/z/2 Typed letter dated 11.10.87 Ext.1/z/3 Typed letter dated 01.07.87 Ext.1/z/4 Typed letter dated 05.07.87 Ext.1/z/6 to Ext. Typing letter dated licence Bi.2162 Typing letter 1/z/7 dated 03.12.77 Ext.10 Typed letter dated 20.2.78 Ext.10/a Typed letter dated 24.10.8 Ext.10/b Typed letter dated 09.05.90 Ext.11 Letter no.319/12 dated 06.11.92 issued by District Transport Office Ext.12 Authentication certificate no.136176 dated 18.7.98 issued by Controller, Weight and Measurement, Bihar Ext.Y Sale deed and document 3107 dated 18.4.91 for identification
8. The defendants have also examined the following witnesses as oral evidence: -
D.W.1 Gauri Shanker Jain, D.W.2 Dilip Kumar Verma, D.W.3 Mirtunjay Jha, D.W.4 Janki Nath Mishra, D.W.5 Baijnath Kedia, D.W.6 Dwrika Nath Singh, D.W.7 Yogesh Chandra Mandal, D.W.8 Brij Bihari Mishra, D.W.9 Tulshi Choudhary, D.W.10 Bhuwan Chandra Mandal, 8 D.W.11 Satyanarayan Agrawal, D.W.12 Sughosh Sharma, D.W.13 Dilip Pandey, D.W.14 Jichhu Yadav, D.W.15 Md. Israff Ahamad, D.W.16 Hridyay Narayan Shukla, D.W.17 Narendra Haldhar, D.W.18 Srimant Dubey, D.W.19 Ranjit Kumar Chatterjee, D.W.20 Shyamala Tiberewal, D.W.21 Murari Lal Agrawal, D.W.22 Kailash Prasad Jai, D.W. 23 Nirbhay Raj Khajanchi, D.W.24 Rabindra Verman, D.W.25 Premnath Singh, D.W. 26 Jagarnath Sharma, D.W.27 Jadid Ansari, D.W.28 Vijay Kumar Jha, and D.W.29 Sunil Kumar Jha.
9. Defendants have also brought the following documentary evidence:-
Ext.A Signatures of District Mines Officer, Manoj Kumar and Ashok Kumar Ext. B to B/5 Rent Receipts Ext. B/6 to Ext. Rent Receipts B/11 Ext. B/12 to Ext. Rent Receipts B/14 Ext. C Signature of B.K.P. Singh, Tax Officer on Notice of Demand of the Income Tax to Mani Lal Jain Ext. C/1 to C/3 Signature of B.K.P. Singh, Tax Officer on Notice of Demand Ext. D to D/4 Certificate of Sales Tax Officer Ext.E Control Order Ext.F to F/4 Licences of Cement and Kerosene Oil Ext.D/5 to D/7 Registration of Certificate in the name of Manilal Jain Ext.C/4 to C/5 Notice to Labour Commissioner Ext.C/6 to C/7 Two notices of Wealth Tax Ext.G to G/1 Assessment order of Income Tax and Wealth Tax Ext.G/2 Certified copy of order of LRDC Ext.H to H/1 Two sale deeds Ext.B/15 to B/17 Three rent receipts Ext. B/18 to B/19 Two Rent Receipts Ext. G/3 to G/8 Papers of Income Tax in eight sheets Ext.A/1 Letter of I.B.P. Company dated 19.03.85 Ext.A/2 Letter of I.B.P. Company 19.02.85 Ext.A/3 Letter of Manilal Jain dated 12.12.73 Ext.G/9 to G/15 Notices and judgment dated 28.02.1998 Ext.C/8 to C/12 Notices from Income Tax and Sales Tax Ext.D/8 Certificate of Registration of Sales Tax
10. The Trial Court, thereafter decided each of the issue based on the evidence led by the parties. Issue No.5, i.e., Is there unity of title and 9 possession in between the parties or partition has already taken place as pleaded by the defendants, is of utmost importance. The Trial Court, after considering the evidence led by the parties and on the basis of the arguments, concluded that there is no previous partition by metes and bounds and the plaintiffs have come with jointness and the presumption of jointness has been confirmed by the evidence. Though it is the case of the defendants that there was previous partition, they failed to prove the same. Thus, the Trial Court held that there was no previous partition and the parties are joint. The issue was decided in favour of the plaintiffs.
11. On the question of the valid cause of action, which is Issue No.2, the Trial Court decided that there was a valid cause of action in favour of the plaintiffs. So far as the Issue No.3, which is on the point of non-joinder of parties, the Trial Court held that the suit is not suffering from misjoinder or non-joinder of necessary parties and answered the issue in favour of the plaintiffs. The Issue No.4, which was the question of jurisdiction, was also answered in favour of the plaintiffs. The only issue, which has been decided against the plaintiffs is Issue No.1 and Issue No.6, i.e., whether the suit, as framed is maintainable and whether the plaintiffs are entitled for partition. The Trial Court held that due to want of better particulars of suit property, no executable decree can be passed, thus, the plaintiffs are not entitled to get a decree for partition. Aggrieved by the said finding, this appeal has been preferred by the plaintiffs.
12. Counsel for the plaintiffs-appellants argued that the schedule of the plaint is specific and there cannot be any ambiguity in the same. He submits that the properties are well defined, which would be apparent from the bare perusal of the schedule. He submits that when the properties are well defined, the Court could not have decided the said issue against the plaintiffs. He submits that when the plaintiffs have stated that business is joint, it is not of much importance to mention as to what are the properties of the business. He submits that whatever be the properties of the business, the same should have been partitioned by appointing a Pleader Commissioner, who could have ascertained as to what are the properties to be partitioned. He submits that the basis of coming to a conclusion that the properties are not well defined is wrong and the Court could not have arrived at the said conclusion. He submits that when the findings in respect of other issues were not challenged by the defendants, then the Court could not have dismissed the suit by answering the Issue Nos.1 and 6 10 against the plaintiff.
13. Counsel appearing on behalf of the defendant-respondents submits that schedule is absolutely vague and the properties are not identifiable. He submits that when the properties are not identifiable, the partition suit is bound to fail. He further submits that the entire properties were not mentioned in the schedule and on that ground also the suit is liable to be dismissed and, thus, the appeal is also liable to be dismissed. He submits that even if a decree is passed, same would be non- executable and thus, the Court has rightly dismissed the suit.
14. I have heard the counsel for the parties and have gone through the records. The issue, in this appeal lies in a very narrow compass. The suit is a partition suit where the plaintiffs have prayed for partition, claiming that they are the members of Joint Hindu Family covered by Mitakshara School of Hindu Law. The Trial Court, on the basis of the pleadings of the parties, framed 7 (seven) issues. Two of the aforesaid issues are of utmost importance, i.e., issue No.5, whether there was previous partition amongst the parties or not and issue No.6 whether the plaintiffs are entitled to a decree for partition. There were other issues, like, non-joinder and mis-joinder of necessary parties and issue of territorial jurisdiction. The issue of non-joinder and mis-joinder of parties, territorial jurisdiction and also that of previous partition was decided in favour of the plaintiffs. This means that the Trial Court has held that there was no previous partition amongst the parties, meaning thereby that the parties are still joint. When the Trial Court has found that the parties are still joint, then this partition suit is definitely maintainable at the behest of the plaintiffs. Be it noted that there is no dispute amongst the parties that they belong from the common ancestors. By holding that there was no previous partition and still the parties are in jointness, the defendants' plea that there was break in the joint family status, has been demolished.
15. This finding of fact that the parties are still joint has attained finality as the defendants have not challenged the said finding by filing any cross appeal. Thus, there cannot be any other conclusion than what has been held by the Trial Court that the parties are still joint. So far as the issue of territorial jurisdiction and mis-joinder and non-joinder of parties are concerned, the said issue has also been answered in favour of the plaintiffs, which has also attained finality as the same has also not been challenged.
1116. The issue that the properties, which are sought to be partitioned, are identifiable or not, is the only issue, which needs consideration. The Court below, on the ground that the properties are not identifiable, has answered the Issues Nos.1 and 6 against the plaintiffs and in favour of the defendants. Issues Nos.1 and 6 are:-
1. Is the suit as framed maintainable?
6. Are the plaintiffs entitled to a decree for partition as prayed for?
17. The Trial Court has held that some of the businesses can be identified, but, what are the properties in those businesses are not clear. The Trial Court also held that regarding the landed properties, no documents have been produced, which may show that the said lands belongs to the family of the plaintiffs/defendants. The Trial Court also held that regarding vehicles, no papers have been submitted, which may suggest that the vehicles belong to the joint family of the plaintiffs and defendants. The Court also held that neither the bank account number nor the amounts available have been disclosed. Thus, on these grounds, as the properties are not clearly specified, dismissed the suit after answering the aforesaid two issues in favour of the defendants.
18. Now, the question is whether the properties, which are sought to be partitioned, as involved in the suit, can be said to be vague or not. When I go through the plaint, I find that there are several schedules appended to the plaint. Schedule 'A' refers to several businesses at Rajmahal, which are run in the name and style of Khemlal Madanlal and Madanlal Gaurishankar (A 1); Jay Gauri & Company Petrol Pump (A 2) and Kailash Pottery (A 3). In reference to these businesses, which have been mentioned in the plaint, reply has been given by the defendants in their written statement at paragraph 10. They have mentioned in detail, about these businesses and have taken a plea that since partition had taken place, they were allotted to the defendants. This reply in the written statement clearly suggests that the defendants are aware about these businesses and the properties. The plaintiffs seek partition of these businesses. Similarly, Schedule 'B' is an Oil Centre, Barharwa (B-1), Mani Lal Jain, Pakur Pumps (B-2) Dhulia and Nimta (B-3) Calcutta Branch at (B-
4) Sahibganj, Amrapara and Chakkai Branches (B-5). In respect of these properties, the defendants have given a reply in page 12 of the written 12 statement wherein they have stated that the properties were allotted to different parties in partial partition. They also denied the valuation of the suit properties as claimed by the plaintiffs. This also suggests that the defendants are well aware of the said properties. Schedule C is the details of some trucks and vehicles, though the registration numbers have not been given. Schedule 'D' are reference of some residential buildings and plots. Schedule 'E' is the bank accounts of the businesses, though it does not contain the bank account numbers, but, the name of the bank branch and the name of the business, who are holders of the accounts in the said branch has been mentioned.
19. In the written statement, in paragraph 13, it has been mentioned that the original business was run in the name and style of Khemraj Madanlal. I find that the defendants, who are the respondents herein, have in paragraph 5, have stated that five ancesstoral buildings and godowns of the parties at Rajmahal, K.M. Coke Industries, Baghmara, Gobindpur, Dhanbad; Transport Business at Gobindpur and other properties are not included in the suit. The defendants claim that since those properties are not included, the suit is liable to be dismissed. Further, these properties have been mentioned in Schedule 'A' of the written statement. This submission of the defendants clearly suggests that there are other properties also. Since it has been held by the Court below that there was no previous partition, this statement of the defendants and the properties mentioned therein will also come within the purview of properties which needs to be partitioned.
20. When I go through the judgment, I find that whether the properties described was vague or not and what are the properties of the joint family was not an issue before the Court. The Court decided the said question while answering issue No.6. If the Court had to answer the instant question as to whether the description of properties are vague or whether the properties are identifiable or not, the Court should have framed such an issue. Issue No.6 cannot be taken independently to decide as to whether the properties are vague and identifiable or not. In this case, issue No.6 should have been linked with issue No.5 and in fact should have been corollary issue of issue No.5. When the Court below has held that there was unity of title and possession and there was no previous partition, then issue No.6 should have been decided in favour of the plaintiffs, holding that the plaintiff is entitled for a decree of partition. Whether the 13 description of properties are vague or not should have been a separate issue. After framing the said issue, the Court should have dealt with all the properties individually.
21. The Hon'ble Patna High Court in the case of Nagar Khan and Others versus Gopi Ram Agarwala, reported in AIR 1976 Patna 2 at paragraph 5 has held as under: -
"According to the provision of Order 7, Rule 3 of the Code of Civil Procedure, where the subject-matter of the suit is immovable property, the plaintiff has to describe the same with sufficient particulars to identify it with boundaries or particulars in the record of settlement of survey, so that the decree, if passed, will be capable of execution. Both the courts below have devoted considerable attention on this question and have recorded a clear finding, as already pointed out above, that the description of the property was Insufficient and it was difficult to fix up the same with definiteness within the four boundaries mentioned above. Mr. R.S. Chatterji, who appeared for the appellants in this Court when confronted with this situation could not satisfactorily meet the point. He, however, simply contended that if it could be held that the defendant was not entitled to resist the claim of the plaintiffs, it would be a matter between the plaintiffs, on the one hand, and their vendor, on the other, to fix up the area. There is hardly any substance in this contention as it is the duty of the Court to pass only such decree which can be executed under the machinery provided by Order 21 of the Code of Civil Procedure with all precision and without any confusion or embarrassment either to the executing Court or to any other person. However, on this ground a suit cannot be dismissed nor a plaint rejected, and in such cases the Court may call upon the plaintiffs to furnish more particulars even to the extent of allowing the amendment of the plaint."
From the aforesaid judgment, it is clear that the Court may call upon the plaintiffs to furnish more particulars even to the extent of allowing amendment to the plaint.
22. Now, as held, whether the properties are identifiable or not is a separate issue by itself. The Court below has not framed the aforesaid 14 issue, but, has come to a finding that the description of the properties is vague. In this suit, the plaintiffs are seeking partition of the business. The name an style of the business has been specifically mentioned by the plaintiffs in the plaint and in its schedule. Similarly, in the written statement also, there is a schedule and defendants claim that those properties mentioned therein has been left out. Further I find that no plea was also taken by the defendants in their written statement about the vagueness of any property. This clearly suggests that the defendants were not prejudiced by the description of the properties given in the plaint, rather, they were well aware about the said properties. I find that the properties mentioned in the plaint and the written statement are identifiable and, thus, needs to be partitioned.
23. Thus, this Court is of the opinion that the Issue No.6 has been wrongly decided against the plaintiff and in favour of the defendants. Thus, the findings of the Court below, so far as issue No.6 is concerned, is set aside. The said issue is answered in favour of the plaintiffs and it is held that the plaintiffs are entitled for a decree of partition. In view of what has been held above, this appeal stands allowed.
24. The title suit is remitted to the Court of Senior Civil Judge I, Sahebganj for drawing up a preliminary decree after determining the share of each of the parties to the suit.
( Ananda Sen, J.) Dated, the 4th December, 2020 High Court of Jharkhand, Ranchi NAFR Kumar/Cp-02