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2016 DIGILAW 362 (ORI)

Md. Sahid v. Md. Rafiqu

2016-05-06

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Sundargarh in R.F.A. No. 35 of 2011 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Sundargarh in C.S. No. 166 of 2008. The respondent no. 1 as the plaintiff has filed the suit for partition of the land described in the schedule of the plaint amongst the parties. It is his case that one Saheb Miyan had two sons namely, Sekhayat and Chhedi, both of whom are dead. They had the joint properties at mouza Rajgangpur under Khata no. 449 measuring Ac. 0.45 decimals over which they were having the residential houses and the land stood jointly recorded in their names. It is further stated that Sekhayat, besides the above property had got his separate landed property under Khata no. 448. They had constructed their separate residential houses where they used to reside with family and now their legal heirs are residing over there. But there was no partition of the said lands between them and their separate possession was merely for convenience which state has been continuing. The plaintiff claims to have approached the defendants on 25.08.2008 for partition and allotment of half share to him and as it was denied, the suit has been filed. 2. The appellant being the defendant no. 1 to 6 contested the suit by filing joint written statement. Similarly, defendant no. 7 to 10 and 13 have filed their written statement jointly, whereas the defendant no. 1 and 12 have submitted separate written statements. The defendant no. 1 to 6 in their written statement have given their genealogy saying that all the legal heirs of Saheb Miyan have not been made parties, though they are necessary parties to the suit. So, maintainability of the suit is challenged on the ground of non-joinder of necessary parties. According to them, Saheb died in the year 1996. They admit that the land under Hal Khata no. 449 stood jointly recorded in the name of Sekhayat and Chhedi which measures Ac. 0.45 decimals. Sekhayat’s share is said to be to the extent of Ac. 0.225 decimals. It is further stated that land under Hal Khata no. 448, is having total area of Ac. 0.50 decimals and under Hal Plot No. 46, the land measures Ac. 0.45 decimals. 449 stood jointly recorded in the name of Sekhayat and Chhedi which measures Ac. 0.45 decimals. Sekhayat’s share is said to be to the extent of Ac. 0.225 decimals. It is further stated that land under Hal Khata no. 448, is having total area of Ac. 0.50 decimals and under Hal Plot No. 46, the land measures Ac. 0.45 decimals. Thus total extent of land of Sekhayat in both the khatas is said to be of Ac. 0.725 decimals which stand for division amongst the heirs of Sekhayat. According to them, the plaintiff-respondent no. 1 has been in occupation of more land than what is due to him. They deny the plaintiff-respondent no. 1’s entitlement as half share over the land under both the Hal khatas. They say that Sekhayat had not died leaving behind his two sons i.e., Mehebub and plaintiff but he had four sons namely, Sefayat, Mehbub, Zinat and Rafiq (plaintiff). Sefayat died leaving behind his widow, six sons and four daughters whereas Zinat died leaving four sons. It is further stated that all the legal heirs of Sefayat and Zinat are alive and they have not been impleaded as parties though they are necessary parties. The respondent no. 7, 8 to 10 and 13 challenge the locusstandie of the plaintiff-respondent no. 1 to file the suit since he having taken possession of his share of land, has already constructed his house covering more than the area which he is entitled to get as of his share. The defendant no. 10 and 11 practically admit the case of the plaintiff. 3. The trial court on such rival pleadings, framed five issues. Going to answer issue no. 4, the decision has been returned that legal heirs of Sekhayat are entitled to half share over the suit land whereas the legal heir of Chhedi are entitled to the other half and that half share of Sekhayat is to be partitioned amongst the plaintiff, his brother and sister, when rest are to be partitioned amongst legal heirs of Chhedi. Similarly, the land under Khata no. 448 has been held as liable for the partition amongst legal heirs of Sekhayat. Similarly, the land under Khata no. 448 has been held as liable for the partition amongst legal heirs of Sekhayat. Next going to the issue relating to the non-joinder of the necessary parties, the trial court has held that the challenge on that score made by the defendants to thwart the suit is untenable since they have failed to establish that Sekhayat and Zinat died leaving behind their legal heirs. The lower appellate court being moved by the unsuccessful defendant no. 1 to 6 in appeal, the same has also been dismissed. Therefore, the present second appeal has been filed. 4. Learned counsel for the appellants submits that the finding of the courts below that the suit is not bad for non-joinder of necessary parties is wholly unsustainable and the courts below ought not to have passed the preliminary decree for partition as prayed for by the plaintiff-respondent no. 1 in the absence of those necessary parties and ought not to have gone to decide the issues in their absence and behind their back. This according to him is the substantial question of law which surfaces for certification for the purpose of admission of this appeal. 5. On going through the judgments of the courts below, it is found that a specific issue on the above score has been framed by the trial court i.e., issue no. 3 and that has been answered. The challenge on that score having been made before the lower appellate court, the same has been addressed by it. On going through the rival case as also the evidence on record, the concurrent finding of fact stands that the suit is not bad for non-joinder of necessary parties as contended by the defendant no. 1 to 6 and that being their main ground of challenge, the same stood negated. It is specifically stated by the defendant no. 1 to 6 that legal heirs of Zinat Miyan and Sefayat Miyan and Mustari Khatoon have not been made parties. According to them, Sekhayat had two sons namely, Safayat and Zinat and daughter namely Mustari whose legal heirs are necessary parties. The defendants in a very casual manner as is seen have averred in the written statement that legal heirs of Md. Sefayat and Zinat are alive. However, they have not disclosed their names much less to say any other particulars. The defendants in a very casual manner as is seen have averred in the written statement that legal heirs of Md. Sefayat and Zinat are alive. However, they have not disclosed their names much less to say any other particulars. It may be stated here that the plaintiff by amendment inserted in the plaint that Safayat and Zinat died issueless. To this, the defendants have not filed any additional written statement in stating particularly the names of their legal heirs who are alive and that they thus stand as necessary parties to the suit to enable the court to conclude as to if in their absence the decree as sought for if can be passed. They do not deny said pleading in the plaint. 5. It is the settled position of law that when the defendants want to thwart the suit in saying that the suit is bad for non-joinder for necessary parties and as such it cannot proceed in their absence for decision, the pleading has to be very specific which is wholly lacking in the present case. Here though the defendants have pleaded that legal heirs of Safayat and Zinat are alive, yet they are not giving out their names. Even the defendant no. 3 being examined as D.W. 1, in his evidence has not stated anything about those legal heirs of Safayat and Zinat. Thus mere plea in the written statement, that the suit is bad for non-joinder of necessary parties cannot stand in the way of disposal of the suit on merit and in accordance with law unless the party taking such a plea shows to the satisfaction of the court that those persons kept out the arena of the suit are in fact necessary parties in whose absence no effective decree can be passed since their right is likely to be affected thereby. In such state of affairs, the courts below having rendered the concurrent finding of fact that the suit is not bad for non-joinder of necessary parties, this Court finds no such infirmity with the same so as to accept the submission of the learned counsel for the appellants that there arises any substantial question of law for being answered in this appeal. Thus, the appeal does not merit admission. 6. In the result, the appeal stands dismissed. No order as to cost.