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2023 DIGILAW 266 (JHR)

Raj Kumar Tewary v. Asha Kumari

2023-03-01

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Sanjay Kumar Dwivedi, J. Heard Mr. Bhaiya Vishwajeet Kumar assisted by Mr. Ranjeet Kumar, learned counsel for the appellants and Mr. Atanu Banerjee assisted by Mr. Satish Kumar, learned counsel for the respondents. 2. This second appeal has been preferred being dissatisfied with the decree sealed and signed on 18.02.2003 on the basis of the judgment dated 27.01.2003 in Partition Appeal No. 16 of 1997 by the learned Additional District and Sessions Judge, Fast Track Court No. II, Palamau at Daltonganj affirming the decree sealed and signed on 02.04.1997 on the basis of the judgment dated 15.03.1997 in Partition Suit No. 41 of 1989 by the learned Sub-Judge No. 2, Daltonganj. 3. The appellants/plaintiffs instituted suit for partition to the extent of 1/5th share of the plaintiffs, cost of the suit and another reliefs deemed fit and proper. The said suit was decided by the learned Sub-Judge No. 2, Daltonganj vide judgment dated 15.03.1997 and he has been pleased to dismiss the suit. Against that judgment, the appellants/plaintiffs moved before the learned appellate court in Partition Appeal No. 16/1997, which was decided vide judgment dated 27.01.2003 dismissing the appeal and affirming the judgment passed by the learned trial court. Aggrieved with that, the appellants/plaintiffs have preferred the present second appeal. 4. It appears from the judgments of the learned trial court as well as the appellate court that the appellants/plaintiffs instituted the suit stating therein that Khata no. 91, Khebat No. 1/19 and Khata no. 93 and 126 under Khebat no. 13 of village Golana, P.S. Patan was recorded in the name of one Bigan Mahto, son of Ganga Mahto. The said Bigan Mahto had four Pai share in these Khatas, out of four Pai share Bigan Mahto sold two Pai share to one Ram Mahal Dubey and one Pai ten Karant share was also purchased by said Ram Mahal Dubey in a Court auction. Therefore Ram Mahal Dubey became owner of three Pai ten Karant share in Khebat no. 1/19 and remaining ten Karant share belonged to the Khebatdar Bigan Mahto. Ram Mahal Dubey had five sons namely 1. Kail @ Parmeshwar Dubey 2. Adhar Dubey. 3. Sarwan Dubey. 4. Kauleshwar Dubey 5. Kanchan Dubey. Therefore Ram Mahal Dubey became owner of three Pai ten Karant share in Khebat no. 1/19 and remaining ten Karant share belonged to the Khebatdar Bigan Mahto. Ram Mahal Dubey had five sons namely 1. Kail @ Parmeshwar Dubey 2. Adhar Dubey. 3. Sarwan Dubey. 4. Kauleshwar Dubey 5. Kanchan Dubey. When Ram Mahal Dubey died in year 1956 his interest was jointly inherited by two sons Kail @ Paremeshwar Dubey and Adhar Dubey surviving that time, and grand sons of the three branches (three sons of Sarwan Dubey, one son of Kauleshwar Dubey and one son of Kanchan Dubey). Therefore, after the death of Ram Mahal Dubey each branch of his five sons succeeded and inherited to the extent of 1/5 th share. It was further stated that one son of Ram Mahal Dubey sold his 1/5 th share in favour of plaintiffs vide registered sale deed dated 02.09.1960 and since then plaintiffs are in joint possession of the land with the other co-tenants and are getting Usufruct according to their share and also are paying rent. The defendants no. 1 to 4 also purchased 2/3rd share of Adhar Dubey and Bhola Dubey, son of Kanchan Dubey vide sale deed dated 14.9.1960. The defendant no. 6 and the rather of defendant no. 8 to 11 also purchased 1/5th share of Sarwan Dubey's branch vide sale deed dated 01.09.1960 executed by three sons of Sarwan Dubey namely Law Dubey, Dinesh Dubey and Brij Bihari Dubey. Defendant no. 17 purchased 1/5th share of Kauleshwar Dubey through a sale deed dated 12.07.1960 executed by Jugeshwar Dubey the son of Kauleshwar Dubey. 5. The genealogical table of Ram Mahal Dubey is being given below- Ram Mahal Dubey died in the year 1956 Kali@ Parmeshwar Dubey Adhar Dubey Sarwan Dubey Kauleshwar Dubey Kanchan Dubey Jageshwar Dubey Bhola Dubey Law Dubey Dinesh Dubey Brij Bihari Dubey 6. There has been transferred and re-transferred of the suit property falling under the shares of other successors. It was asserted in the plaint that the purchased share of plaintiffs and has got no change and they have 1/5th share in the suit land. The further case of plaintiffs was that plaintiffs and defendants even without any specified share and allotment have been possessing land according to their convenience and share. It was asserted in the plaint that the purchased share of plaintiffs and has got no change and they have 1/5th share in the suit land. The further case of plaintiffs was that plaintiffs and defendants even without any specified share and allotment have been possessing land according to their convenience and share. When the defendants with vested interest started taking undue advantage of unspecified and un-divided share, the plaintiffs filed the suit. Reliefs have been sought in the suit that decree be passed for partition of 1/5th share of the plaintiffs in the land by metes and bound. Description of the land has been given in the schedule. In the Schedule attached with the suit, there are as many as ten plots comprising of Khata no. 91, 93 and 126 total area 2.9/20 acres. 7. The original defendants no. 12, 12A, 12B, 12C and original defendants no. 29, 30, 31, 32 have filed their writer statement, wherein, it has been stated that the plaintiffs have no title and right over plot no. 441, 258 of Khata no. 91 and plot no. 239 of Khata no. 93. It was claimed that Bigan Mahto, the Khewatdar had orally exchanged plot no. 441 with Swarath Ram Tiwari of Khebat no. 1/16, which is clear from Jarpeshi of year 1927. Ram Swarath Tiwari and his brother sold this plot to Butai Mahto who possessed the plot no. 441. On re-transfer by Butai Mahto this plot came into the possession of Ram Bihari Tiwari and Gagan Tiwari. In Partition suit of 1955 plot no. 441 allotted in the share Gagan Tiwari and after death of Gagan Tiwari his heirs succeeded to his interest in plot no. 441. It was again asserted by this contesting defendants that other two plots 258 and 239 came into possession of one Bhawani Tiwari of Khebat no. 1/17. The said Bhawani Tiwari died issueless and was succeeded by his widow Gaura Kunwar. Gaura Kunwar get these two plots with some other plots by way of maintenance and she got rent assessed and paid the rent. Gaura Kunwar became absolute owner after Hindu Succession Act and she executed sale deed dated 22.07.1963 in favour of Sarojani Devi. A residential house was constructed over plot no. 258, which is in possession of heirs of Sarojani Devi. It was specifically taken plea by these defendants that a title suit being no. Gaura Kunwar became absolute owner after Hindu Succession Act and she executed sale deed dated 22.07.1963 in favour of Sarojani Devi. A residential house was constructed over plot no. 258, which is in possession of heirs of Sarojani Devi. It was specifically taken plea by these defendants that a title suit being no. 60/1971 was filed by plaintiffs wherein the defendants were also party and that suit was dismissed. The first appeal arising out of that suit being title appeal no. 40/1976 and second appeal no. 153/1980 (R) was also dismissed by first appellate court and High Court and the Judgment of original court was upheld. Thus, the present suit is barred by principle of res judicata. Apart from it, plea was taken by the defendants that there is no cause of action in favour of plaintiff and the suit is not maintainable and is liable to be dismissed. 8. The case of original defendant nos. 27 and 28 was that land of Khata no. 91 plot no. 205 is in possession of defendant and the plaintiffs have no right and interest with that land. There was partition in between co-sharers and heirs of Tilakdhari Tiwari and said land was allotted to share of father of contesting respondents no. 27 and 28. The plea was also taken on behalf of these defendants that plot no. 205 was also subject matter of Title suit no. 60/1971 and defendants no. 27 & 28 (respondents no. 29 and 30) were party to that proceeding. In a case of rent assessment, case no. 242 of 1956-57, this plot was assessed in the names of these respondents and even the case before D.C.L.R. against the order of assessment of rent was also rejected. There was no right, title and possession over plot no. 205. Therefore, plaintiffs have no right in that plot. 9. Mr. In a case of rent assessment, case no. 242 of 1956-57, this plot was assessed in the names of these respondents and even the case before D.C.L.R. against the order of assessment of rent was also rejected. There was no right, title and possession over plot no. 205. Therefore, plaintiffs have no right in that plot. 9. Mr. Bhaiya Vishwajeet Kumar, learned counsel for the appellants submits that if the matter in issue or for the matter of that the right litigated between the parties was already adjudicated upon in previous suit so as to become res judicata as such could not be again placed in contest between the same parties in the same suit and if there was identity of parties or same parties in both the former and subsequent suit and if the parties in the subsequent suit have litigated under the same title as in the former suit, vitiate in law the concurrent finding of res judicata. He submits that these are the substantial questions of law and on that ground, this second appeal may kindly be admitted. He further submits that the suit property was not the subject matter in the earlier suit, which also vitiate in law the concurrent finding of res judicata. 10. Mr. Atanu Banerjee, learned counsel appearing on behalf of the contest respondents who appeared pursuant to the notice issued in substitution petition, submits that both the learned courts have considered the judgments rendered in previous suit and, thereafter have given finding. There is no illegality and perversity in the judgments of the learned courts and there is no substantial question of law involved in this second appeal and accordingly, the same is fit to be dismissed. He further submits that the judgment passed in the previous suit was taken before the High Court under Section 100 of the CPC and that second appeal was also dismissed and that is why, the matter has attained finality. 11. In view of the above facts and considering the submissions of the learned counsel for the parties, the Court has gone through the judgments of the learned trial court as well as the appellate court and finds that the learned trial court after discussing the materials, has come to the conclusion that the appeal from appellate decree no. 11. In view of the above facts and considering the submissions of the learned counsel for the parties, the Court has gone through the judgments of the learned trial court as well as the appellate court and finds that the learned trial court after discussing the materials, has come to the conclusion that the appeal from appellate decree no. 153 of 1980(R) against the judgment and decree dated 07.06.1980 passed in T.A. No. 40 of 1976 was dismissed in which Ram Bilash Tiwari and others were appellants and Matukdhari Tiwari and others were respondents vide Ext.C. T.A. No. 40 of 1976 was dismissed on contest with cost and the judgment and decree passed by the learned court was affirmed vide Ext.C/1. This plea is further substantiated by Ext.D, which is final decree for partition in Partition Suit No. 23 of 1955 in which Ajalati Kuer was the plaintiff and Gagan Tiwary and others were the defendants. The learned trial court has further observed that in Title Suit No. 22 of 1966, Matukdhari Tiwary and others were plaintiffs and Kailash Dubey and others were defendants, which was decreed ex-parte vide Ext. C-1. This was followed by a decree in a original suit vide Ext.D-1. The learned trial court has also considered the documents of the plaintiffs namely Ext.1 and 2-sale deeds, Ext.3 to 3/1-order sheets, Ext.4-certified copy of judgment of Title Suit No. 130 of 1925, Ext.5-certified copy of Khewat and Ext.6-certified copy of sale certificate and the learned trial court found that these documents do not in any way negative and nullify the impact and effect of the judgments referred in the said suit. In that view of the matter, the learned trial court has answered issue nos. V, VI, VII and VIII and dismissed the partition suit. 12. The learned appellate court has framed 3 points to decide the appeal. Point no. (ii) was with regard to ‘Whether the learned trial court committed an error in dismissing the suit as barred by res judicata?’. While deciding point no. V, VI, VII and VIII and dismissed the partition suit. 12. The learned appellate court has framed 3 points to decide the appeal. Point no. (ii) was with regard to ‘Whether the learned trial court committed an error in dismissing the suit as barred by res judicata?’. While deciding point no. (ii), the learned appellate court has considered Ext.C-certified copy of the judgment passed in Second Appeal No. 153 of 1980(R) by the High Court and Ext.C/1-certified copy of judgment passed in T.A. No. 40 of 1976 passed by the learned 4th Additional Sub-Judge, Daltonganj and the learned appellate court from perusal of the judgment passed in T.A. No. 40 of 1976 found that the facts of earlier suit No. 60 of 1971 are similar to those of present suit and the claim and counter claim by the contesting parties are also same and considering this aspect of the matter and further three judgments passed by the Hon'ble Supreme Court relied therein, the learned appellate court has affirmed the judgment passed by the learned trial court and, thereafter, dismissed the partition appeal. 13. So far as the submission of Mr. Bhaiya Vishwajeet Kumar, learned counsel for the appellants so far as suit property was not the subject matter in the earlier suit is concerned, it is well settled that for partition, all the properties are required to be included in one suit and after considering all aspects of the matter, the two fact finding courts have come to the conclusion and sitting in second appeal under Section 100 CPC, the High Court is not required to do the roaming enquiry to come to that conclusion. 14. In view of the above facts, reasons and analysis, the Court finds that both the learned courts have considered the arguments advanced on behalf of the appellants/plaintiffs and thereafter have passed the judgment. There are concurrent findings of two fact finding courts and this Court finds that there is no perversity in the judgments of the learned trial court as well as the appellate court. In that view of the matter, the High Court is not required to interfere with the concurrent findings of two fact finding courts sitting under Section 100 of the CPC 15. Accordingly, this appeal is dismissed.