Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 479 (JHR)

Debi Mahto, S/o late Harkhu Mahto v. Newaji Yadav

2019-02-15

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 227 of the Constitution of India, wherein order dated 05.03.2018 passed in Title (Partition) Suit No.47 of 1965, wherein the objection application dated 20.11.2017 filed on behalf of the defendant no.4-the petitioner namely Debi Mahto of the original suit, whereby and whereunder the objection to the aforesaid decree has been filed on the ground that the interest of the petitioner was not been canvassed by the natural mother, therefore, the decree passed in aforesaid partition suit prejudice to his interest, the same having been rejected by the trial Court by not entertaining the said objection with an observation that the applicant/petitioner filed his grievance before the Survey Knowing Commissioner for proper Takhtabandi, therefore, the final decree proceeding cannot be kept in abeyance on this ground. 2. It has further been agitated on the ground that the Title (Partition) Suit No.245 of 2016, wherein the present petitioner is plaintiff, it has been transpired to the trial Court that no prayer for setting aside the judgment and decree of Title Suit No.47 of 1965 not taken care of records under the provision provided under Order 32 Rule 3A of the C.P.C. has been restored to. 3. The petitioner, being aggrieved with the said order, is before this Court, challenging the same on the ground that the petitioner at time of decree passed in Title Suit No.47 of 1965 was minor and as such, his interest was not proper by the natural mother and when he has attained majority, he after becoming conscious about his right has filed a suit being Title (Partition) Suit No.245 of 2016 and hence, since the said suit is also pertaining to the relief sought for in the Title Suit No.47 of 1965, therefore, before reaching to the final conclusion in the suit filed in the year 2016, the final decree in the Title Suit No.47 of 1965 be kept at hold otherwise, it will prejudice the interest of the petitioner. 4. Having heard learned counsel for the petitioner and after going across the pleading made in the writ petition as also the impugned order, it is evident from the factual aspect that the petitioner happens to be legal heirs of defendant no.3-mother and the petitioner impleaded as defendant no.4 in the said suit. 5. 4. Having heard learned counsel for the petitioner and after going across the pleading made in the writ petition as also the impugned order, it is evident from the factual aspect that the petitioner happens to be legal heirs of defendant no.3-mother and the petitioner impleaded as defendant no.4 in the said suit. 5. According to the petitioner/defendant no.4 who was minor at that time and therefore, he has not been represented through his natural mother properly and as such the decree passed in Title Suit No.47 of 1965, his interest has not been properly considered and therefore, when had attained majority, he has filed a separate suit being Title (Partition) Suit No.245 of 2016 for partition of the aforesaid property. 6. Admittedly, the petitioner was the defendant no.4 and his mother was defendant no.3 in the Title Suit No.47 of 1965, wherein the preliminary decree has been passed way back on 04.12.1968 and at that time approximately the petitioner was 10 years old. The matter kept pending for preparation of final decree and after lapse of about 48 years, a fresh suit has been filed by the petitioner-defendant no.4 for partition of the property and thereafter objection has been filed on 20.11.2017 for keeping the execution of the decree passed in Title Suit No.47 of 1965 at hold on the ground that his interest has not been taken care of by the mother-defendant no.3. 7. Thus, it is not in dispute even accepting the petitioner was 10 years old at that time i.e. on the date of judgment which was pronounced on 04.12.1968 in Title Suit No.47 of 1965, the petitioner has attained his majority in the year 1976-77 but without making any objection to the decree at appropriate stage, he kept mum fairly for long time and in the year 2016, he has filed the fresh suit. 8. Now the question would be that it is suit of the partition of the suit in question and wherein the mother of the petitioner was impleaded as defendant no.3 and if the mother would get the partitioned property by virtue of the partition from amongst the portion of the property in favour of the mother, petitioner-defendant no.4 would be said to be shareholder, therefore, the contention which has been raised by the petitioner that his interest will not look into is not having any basis. Since the judgment has been passed way back in the year 1968 and a fresh suit has been filed being Title (Partition) Suit No.245 of 2016 by the petitioner-defendant no.4 in the Title Suit No.47 of 1965 and if execution of the decree/judgment passed in Title Suit No.47 of 1965 would be allowed to be kept at hold, it will amounting to render the judgment passed in Title Suit No.47 of 1965 as redundant, therefore, the trial Court has rejected the objection by making an observation that since the stage is of Takhtabandi by Survey Knowing Commissioner, therefore, the petitioner would raise this point before the Survey Knowing Commissioner for looking into his interest 9. It is further evident from the impugned order that in Title (Partition) Suit No.245 of 2016, which is not the prayer of the petitioner for setting aside the judgment passed in Title Suit No.47 of 1965, therefore, what would be the consequence of the decree passed in Title Suit No.47 of 1965, it has not been explained by the petitioner that it is settled position of law that decree passed in competent Court of civil jurisdiction, it is binding upon the parties and the decree or judgment cannot be rendered to be redundant that too over the said property in between the parties. 10. In view thereof, the trial court while rejecting the said objection has not committed any error. 11. This writ petition since has been filed under Article 227 of the Constitution of India i.e. under the revisional power conferred to this Court and it is settled position of law under Article 227 of the Constitution of India, the power conferred in the order passed by the trial Court which is interlocutory in nature. 12. This Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Hon’ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 13. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 13. In view thereof the factual aspect and also considering the scope of Article 227 of the Constitution of India, this Court is not inclined to interfere with the finding of the trial Court in the impugned order. 14. Accordingly, this writ petition fails and is hereby dismissed.