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2014 DIGILAW 383 (PAT)

Safeda Kuer v. Sumitra Devi

2014-03-27

BIRENDRA PRASAD VERMA

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JUDGMENT : BIRENDRA PRASAD VERMA, J.:–The present First Appeal has been filed by the plaintiff- appellant herein against the judgment and decree dated 28th September, 1974 passed in Title Suit No. 73/21 of 1966/1970 by the learned 1st Additional Sub-Judge, Sasaram. The plaintiff-appellant herein had brought the aforesaid title suit seeking partition of the suit lands, detailed in Schedule-A and B of the plaint, and for allotment of half share by appointment of a Pleader Commissioner, besides other incidental relief. The suit was contested by some of the defendants by filing their written statement and producing their witnesses. Finally, by the impugned judgment and decree, the suit brought by the plaintiff- appellant herein was dismissed on contest with costs against the contesting defendants and ex-parte without costs against the rest of the defendants. 2. During the pendency of the appeal, sole appellant Most Safeda Kuer died on 22.02.1987 leaving behind her three daughters as her heirs and legal representatives. After about five years, only one daughter, namely, Ram Pyari Devi filed a petition seeking her substitution in place of original deceased sole appellant. Other two daughters did not join her for being adding as co-appellants. However, by order dated 04.09.1992 passed by a Bench of this Court, the present appellant- Ram Pyari Devi was substituted and her other two sisters were directed to be added as respondents. 3. From examination of the record, this Court finds that the present appeal stood dismissed against the respondent no.14 on account of non-compliance of Court’s peremptory order dated 16.12.1997. When this appeal was placed before a Bench of this Court with office note dated 18.09.2000 to consider the competency matter in view of its dismissal as against the respondent no.14 on account of non-compliance of the Court’s order dated 16.12.1997, learned counsel appearing on behalf of the appellant prayed for some time for filing restoration application and time till 23rd October 2000 was allowed by order dated 19.09.2000 passed by a Bench of this Court. However, despite aforesaid indulgence granted by this Court, no restoration petition was filed on behalf of the appellant seeking restoration of the present appeal as against respondent no. 14. 4. Again the competency matter was placed for consideration before a Bench of this Court with office note dated 20.11.2000. However, despite aforesaid indulgence granted by this Court, no restoration petition was filed on behalf of the appellant seeking restoration of the present appeal as against respondent no. 14. 4. Again the competency matter was placed for consideration before a Bench of this Court with office note dated 20.11.2000. Whereafter by order dated 21.11.2000 passed by a Bench of this Court, it was directed that the competency matter shall be considered at the time of final hearing of the appeal. Now, the matter has been listed “for hearing” for its final disposal. 5. Despite repeated calls, none appears on behalf of the appellant in support of the present appeal. None appears on behalf of the respondents either. However, since the appeal is pending since 1975 and more than 38 years have already elapsed, therefore, the Court has examined the whole record. 6. On examination of the record, this Court finds that the present appeal arises out of a judgment and decree passed in a partition suit. Admittedly, the appeal stood dismissed as against respondent no.14. Hence, the appeal has become incompetent. It is well settled that every co-owner has a right to possession and enjoyment of each and every part of the suit property equal to that of other co-owners. In fact, every co-owner of suit property owns every part of the composite property along with other co-owners/ co-sharers, unless, partition has taken place. It is also well settled that a decree of partition cannot be passed unless and until all the co-owners/ co-sharers have joined the proceeding. It is further well settled that the appeal is the continuation of a suit, and in absence of all the co-owners the partition suit/ appeal cannot be effectively decided by the courts of law. So far the present appeal is concerned, admittedly it stood dismissed as against respondent no.14 as for back as in the year 1997. Despite passage of more than 16 years, steps have not been taken by the appellant for its restoration as against respondent no. 14. 7. For the reasons recorded above, and in view of the judicial pronouncements made by the Hon’ble Apex Court in the cases of State of Punjab Vs. Nathu Ram [ AIR 1962 SC 89 ], Ram Sarup Vs. Munshi [ AIR 1963 SC 553 ], Rameshwar Prasad Vs. 14. 7. For the reasons recorded above, and in view of the judicial pronouncements made by the Hon’ble Apex Court in the cases of State of Punjab Vs. Nathu Ram [ AIR 1962 SC 89 ], Ram Sarup Vs. Munshi [ AIR 1963 SC 553 ], Rameshwar Prasad Vs. Shambehari Lal [ AIR 1963 SC 1901 ] as also in the recent case of Budh Ram Vs. Bansi [ (2010)11 SCC 476 ], this Court is of the considered opinion that the present appeal has become incompetent and cannot proceed further. 8. In the result, the first appeal as a whole, has to fail and is, accordingly, dismissed, but without costs. ?