Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 922 (JHR)

Kaushal Kumar Sahu v. Shivdasi Devi

2019-04-25

SUJIT NARAYAN PRASAD

body2019
ORDER : This writ petition is under Article 227 of the Constitution of India, whereby and whereunder order dated 28.01.2016 passed in Partition Suit No.159 of 2001, has been challenged, whereby and whereunder the petition filed on behalf of defendant, the petitioner herein, under Order 20 Rule 18 (2) of the C.P.C., has been rejected. 2. The brief facts of the case as per the pleading made in the writ petition is that the suit for partition of the property in question was filed being Partition Suit No.159 of 2001 in which the petitioner has put his appearance and taken the plea in the written statement about partition deed dated 09.05.1993 upon which issue has been framed being the issue no.2 to the effect:- “whether there was a previous partition amongst the parties over the suit property?” The said issue has been answered against the plaintiff and in favour of the defendant, petitioner herein and accordingly, the same partition suit has been dismissed vide order dated 09.07.2009. The order of dismissal of the suit has been assailed before the 1st Appellate Court wherein, the Court has declined to interfere against which, the second appeal has been preferred which is now pending for its consideration before the appropriate Forum. The petitioner has filed a petition being Partition Suit No.159 of 2001 under Order 20 Rule 18 (2) of the C.P.C. stating inter-alia therein to amend the preliminary decree dated 09.07.2009, sealed and signed on 18.07.2009 or to pass a fresh preliminary decree declaring the right and share of the property on the suit property taking notice of the previous partition deed dated 09.05.1993, the trial Court has rejected the said petition on the ground that the provision of Order 20 Rule 18 (2) of the C.P.C, is not applicable in the facts and circumstances of the case, reasons being that the suit although has been decreed but has been dismissed holding therein that there was a previous partition amongst the parties over the suit property are in the respective share. 3. Mr. 3. Mr. Shresth Gautam, learned counsel appearing for the petitioner while arguing the matter has submitted that the trial Court has committed gross error in holding in the impugned order regarding non applicability of the provision of Order 20 Rule 18 (2) of the C.P.C. since, on the basis of the factual aspect involved in this case, the said provision is strictly applicable and after considering the fact that the others are encroaching upon the said property. 4. This Court after hearing learned counsel for the petitioner and after going across the pleading made in the writ petition as also the reasons recorded in the impugned order is of the view that before entering into the illegality and impropriety of the order, it needs to refer the provision of Order 20 Rule 18 (2) which reads as hereunder:- “If and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.” 5. It is evident from the aforesaid provision that the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. If there is dispute amongst the parties regarding amicable separation, the Court will pass a preliminary decree declaring the right of the parties and on the basis of the legal position and the factual aspect of the case examined by this Court, it is the admitted case of the petitioner in the Partition Suit No.159 of 2001 is being objected for continuation of the aforesaid partition suit on the ground that property has also been partitioned in view of the partition deed dated 09.05.1993 and the trial Court while answering the issue regarding the maintainability of the said partition suit, as to whether in view of the partition having been made amongst the shareholders of the property, can the suit proceed, the same has been answered in favour of the petitioner, who has defendant in the said suit, thereafter, the suit has been dismissed. 6. 6. The admitted case of the petitioner is that there is a partition, meaning thereby, that the partition has been entered into amicably amongst the co-shares of the property in question and therefore, the applicability of provision of Order 20 Rule 18 (2) of the C.P.C., since it reflects its applicability, in case, if the partition or separation cannot be conveniently made, meaning thereby, if the partition has been made amongst the co-shares of the property in question conveniently, there is requirement of applicability of provision of Order 20 Rule 18 (2) of the C.P.C. 7. The petitioner is now approaching the Court on the ground that some of the parties are encroaching upon the property but only on account of the allegation of petitioner in this regard, no interference can be shown by the trial Court and rightly done by rejecting the petition under the provision of Order 20 Rule 18 of the C.P.C., otherwise, it will go into the legality and propriety of the order which is the subject matter of the second appeal lying pending before the second appellate court. 8. In view thereof and considering the reason assigned in the impugned order as also the applicability of the provision of Order 20 Rule 18 (2) of the C.P.C., according to the considered view of this Court, the trial Court has committed no error in passing the aforesaid order, warranting any interference by this Court in exercise of power conferred under Article 227 of the Constitution of India. 9. Accordingly, the writ petition fails and hence, dismissed.