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2014 DIGILAW 580 (PAT)

Surya Narain Sinha v. Maiyan Devi

2014-05-08

BIRENDRA PRASAD VERMA

body2014
ORDER This First Appeal has been filed against the judgment and decree dated 20th August, 1980 passed in Title Suit No. 66/12 of 1965/1980 by the learned 3rd Additional Sub-ordinate Judge, Biharsharif. 2. The plaintiffs-respondent 1st party herein, brought the aforesaid suit for partition and for allotment of share to the extent of 37 ½ paise in the suit properties, fully described in Schedules 1 and 2 of the plaint. The suit was contested by the defendant Nos. 1 to 5 by filing their joint written statement. Separate written statement was also filed on behalf of the minor defendants resisting the prayer made on behalf of the plaintiffs in the aforesaid suit. Finally, by the impugned judgment and decree the suit was decreed in part on contest with proportionate costs and it was held that the plaintiffs are entitled to get their 1/4th share or to the extent of 25 paise share in the suit properties detailed in Schedule I of the plaint. 3. The defendant Nos. 2 to 5, being aggrieved by the impugned judgment and decree, preferred the present appeal, which was admitted by this Court for hearing and notices were issued to the respondents. 4. By the office notes dated 19.2.2014/20.2.2014, it was pointed out that respondent Nos. 10(h) and 16 are reported to have died during the pendency of the appeal. Besides that, other defects were also pointed out by the aforesaid office notes regarding service report of appeal notice upon the respondents. 5. In view of the aforesaid office notes, by an order dated 21.2.2014 passed by this Bench, on the prayer made by learned counsel appearing on behalf of the appellants, four weeks’ time was granted for filing substitution petition vice deceased respondent Nos. 10(h) and 16 along with limitation petition as also petition for setting aside the abatement of the appeal, if any, failing which it was directed that the appeal shall be treated to have abated as against the heirs and legal representatives of the aforesaid deceased respondents. 6. By the aforesaid order dated 21.2.2014 itself, the appellants were granted three weeks’ time either for filing a petition showing jointness of respondent Nos. 4 to 8 and 9(b) with that of the person, who is said to have received appeal notice on their behalf or alternatively, for filing requisites for issuance of fresh appeal notice upon respondent Nos. 6. By the aforesaid order dated 21.2.2014 itself, the appellants were granted three weeks’ time either for filing a petition showing jointness of respondent Nos. 4 to 8 and 9(b) with that of the person, who is said to have received appeal notice on their behalf or alternatively, for filing requisites for issuance of fresh appeal notice upon respondent Nos. 4 to 8, 9(a), 9 (b) and 10 (i). The aforesaid order dated 21.2.2014 was peremptory in nature. Unfortunately, the aforesaid order dated 21.2.2014 has not been complied with by the appellants. 7. By the office notes dated 29.4.2014/30.4.2014, it has been pointed out that this appeal has stood abated as against the legal representatives of deceased respondent Nos. 10(h) and 16 on the ground of non-compliance of the Court’s order dated 21.2.2014. It has further been pointed out that this appeal stood dismissed as against the respondent Nos. 4 to 8, 9 (a), 9(b) and 10(i). Hence, competency matter of the present First Appeal has been placed for consideration by this Bench. 8. Learned counsel appearing on behalf of the appellants has submitted that despite all his efforts and all communications made to the appellants, he is not getting instructions from the appellants for quite a long time and, therefore, the order dated 21.2.2014 could not be complied with. However, it was contended that despite abatement of the appeal vice deceased respondent No. 10(h) Durgesh Devi and deceased respondent No. 16 Sri Dani Singh, as also despite its dismissal against the respondent Nos. 4 to 8, 9(a), 9 (b) and 10 (i), the appeal may still survive and can be decided on merit in future. In support of his above contention, he has placed reliance on a judgment of the Hon’ble Apex Court in the case of Chhangan Lal Keshav Lal Mehta Vs. Patel Narandas Haribhai [ 1982 BBCJ (SC) 119], as also a Full Bench judgment of this Court in the case of Jagannath Singh Vs. Smt. Singhasan Kuer[ 1984 BBCJ 163 (F.B.)]. 9. Per contra, learned counsels appearing on behalf of the respondents 1st set have strongly pleaded that in view of abatement of the appeal vice deceased respondent Nos. 10(h) and 16, and in view of its dismissal against the respondent Nos. 4 to 8, 9(a), 9(b) and 10(i), the whole appeal has become incompetent and it cannot proceed further. According to them, defendant Nos. 10(h) and 16, and in view of its dismissal against the respondent Nos. 4 to 8, 9(a), 9(b) and 10(i), the whole appeal has become incompetent and it cannot proceed further. According to them, defendant Nos. 6 to 9 and 18 are respondent Nos. 4 to 8 in the present appeal and written statement was filed on their behalf also in the learned trial court. It is also pleaded that the present appeal arises out of a judgment and decree passed in a Partition Suit and in absence of aforesaid respondents, against whom the appeal stood dismissed, the present appeal cannot be effectively and properly decided by this Court. In support of their above contention, they have placed reliance on the judgment of 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 ] and Budh Ram Vs. Bansi [ (2010) 11 SCC 476 ]. Apart from that, they have also placed reliance on an unreported judgment of this Court dated 14.3.2014 passed in First Appeal No. 55 of 1978. 10. After having heard the parties, and on consideration of the materials available on the record, this Court finds that the present appeal arises out of a judgment and decree passed in a Partition suit. Respondent Nos. 4 to 8 had also filed their written statement resisting the prayer made on behalf of the plaintiffs-respondents 1st set herein, yet the suit was decreed by the learned trial court. 11. It is well settled that appeal is a continuation of suit and in a Partition Suit every co-sharers/co-parceners are in the capacity of plaintiff or in the capacity of defendant, and in absence of any of them the suit/appeal becomes incompetent and effective judgment and decree cannot be passed by a court of law. 12. So far the judgment of the Hon’ble Apex Court in the case of Chhangan Lal Keshav Lal Mehta Vs. Patel Narandas Haribhai(Supra) is concerned, that was with respect to a mortgage suit. Therefore, the principles enunciated by the Hon’ble Apex Court in that case shall not salvage the present appeal. In fact, the present appeal is squarely covered by the latest judgment of the Hon’ble Apex Court in the case of Budh Ram Vs. Bansi(Supra). 13. Patel Narandas Haribhai(Supra) is concerned, that was with respect to a mortgage suit. Therefore, the principles enunciated by the Hon’ble Apex Court in that case shall not salvage the present appeal. In fact, the present appeal is squarely covered by the latest judgment of the Hon’ble Apex Court in the case of Budh Ram Vs. Bansi(Supra). 13. In the aforesaid facts and circumstances, particularly in view of the abatement of the appeal vice deceased respondent Nos. 10(h) and 16, and in view of its dismissal against the respondent Nos. 4 to 8, 9(a) 9(b) and 10(i), this Court is of the considered opinion that this appeal has become incompetent and cannot proceed further. Therefore, no useful purpose shall be served by keeping the present First Appeal pending any longer before this Court. 14. For the reasons recorded above, the appeal as a whole has to fail and is, accordingly, dismissed. However, there shall be no order as to costs.