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2011 DIGILAW 1093 (JHR)

Razia Bibi v. Mohammad Nazrul Haque

2011-12-13

POONAM SRIVASTAV

body2011
ORDER Heard counsel appearing on behalf of the appellants and also counsel on behalf of the respondents. 2. The instant Second Appeal is preferred challenging the judgment and decree in Title Appeal No. 1 of 2005 arising out of the judgment and decree dated 17.01.2005 passed by Sub-Judge-I, Pakur in original Suit No. 9 of 1980 (Mohammad Nazrul Haque Vs. Razia Bibi & Ors.). The suit was filed for a decree of partition in respect of 5 Ana 8 pie share of the plaintiffs in the suit properties. It was stated that the properties mentioned at Schedule-A are the joint family property of the plaintiffs and defendants. However, certain properties detailed in Schedule-B claimed by the plaintiffs are the self acquired property and no relief was claimed in respect of Schedule-B property. The claim of the plaintiff was regarding 1/3rd share of the property mentioned at Schedule-A. After hearing the parties, the court below allowed 1/3rd share to the plaintiffs in both the properties i.e. Schedule-A and B. The plaintiffs preferred an appeal before the learned District Judge, Pakur. The appeal was allowed by means of impugned judgment. The entire controversy revolves around the question that since no relief was claimed in respect of the property shown at Schedule-B, the trial court erred in law in declaring 1/3rd share in the said property as well. No counter claim was setup on behalf of the defendants. 3. The substantial question of law raised by the learned counsel is that in a partition suit, the defendants are coplaintiffs and, therefore, there is no necessity to setup a counter claim. 4. Reliance has been placed on a decision of the Karnataka High Court in the case of Smt. Gowramma Vs. Nanjappa & Ors., AIR (2002) Karnataka 76. 5. Learned counsel has laid emphasis on the findings of the trial court regarding Section 57 of the Mohammadan Law where it is a case of the plaintiffs that the property was purchased from the common business and since the family were living together and the business was being looked after by one Mohammad Shakurulla, therefore, all the other members had evidently a share in all the properties. The business was initially carried by Hazi Md. The business was initially carried by Hazi Md. Ali in the name of 'Sheikh Wajid Ali Hazi Mohammed Ali' and thus, from the income of the said joint property, the sons acquired share in the property described at Schedule-A, except plot No. 1706 and also properties detailed in Schedule-B. A number of documents were brought on record. 6. The contention on behalf of the appellants is that the properties mentioned at Schedule A and B of the plaint except plot No. 1706 continued to be joint family property. The admitted position is that there was no counter claim and, therefore, mere denial in the written statement could not have allowed the defendants a share in the property mentioned at Schedule-B specifically the plaintiff had not sought any relief in the plaint regarding business properties detailed at Schedule-B. The findings of the trial court holding that the entire property of Schedule-B, along with Schedule-A is joint property and liable to partition is, therefore, uncalled for since there was no counter claim or relief sought by the defendants. The suit was preferred only for partition of the property mentioned at Schedule-A of the plaint. The judgment of the court below is therefore a conclusive finding given on the fact that the property shown at Schedule-B was not a joint family property and also that no relief was claimed by the plaintiffs in respect of the property at Schedule-B, therefore, by merely filing a written statement, the defendants could not obtain a share in the said property as well. 7. I am in complete agreement with the findings of the lower appellate court. The substantial question of law raised in the instant appeal is devoid of any merit and does not call for any interference under Section 100 C.P.C. The scope of Section 100 C.P.C. is limited. The Apex Court held in the case of Santosh Hazari Vs. Purushottam Tiwari, (2001) 3 SCC 179 and Thiagarajan & Ors. Vs. Sri Venugopalaswamy B. Koil & Ors., (2004) 5 SCC 762 discussed the jurisdiction of the high court in a second appeal. The principle laid down was that a point of law which admits no two opinion may be a proposition of law, but cannot be a substantial question of law. Vs. Sri Venugopalaswamy B. Koil & Ors., (2004) 5 SCC 762 discussed the jurisdiction of the high court in a second appeal. The principle laid down was that a point of law which admits no two opinion may be a proposition of law, but cannot be a substantial question of law. The substantial question of law must be a debatable, not previously settled by law of land or a binding precedent and answer to the same will have a material bearing as to the right of the parties. This principle has been followed in a catena of decisions. Therefore, in my view, the present case is far from a substantial question of law. 8. The Second Appeal is accordingly dismissed. (Poonam Srivastav, J.) Manish