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2024 DIGILAW 142 (JHR)

Dhurpati Devi @ Dropadi Devi v. Yogendra Bhagat

2024-02-09

SUJIT NARAYAN PRASAD

body2024
JUDGMENT : Sujit Narayan Prasad, J. 1. The instant petition has been filed for quashing of order dated 07.09.2021 passed in Original Suit No. 56 of 2017 by learned Civil Judge, Senior Division-II, Dhanbad whereby and whereunder petition dated 18.02.2019 filed by the petitioners, [defendant nos. 10, 11 and 13 in Original Suit No. 56 of 2017 i.e., three daughters of late Rameshwar Bhagat] [though only defendant nos. 10 and 11 have chosen to file the present petition i.e., CMP No. 419 of 2021], whereby and whereunder prayer made to drop the trial of the original suit being Original Suit no. 56 of 2017 was rejected. 2. This Court, before adverting to the prayer made in the instant petition, deems it fit and proper to refer certain factual aspects as per the pleadings available on record, for proper adjudication of lis: 3. Initially, the plaintiffs, namely, Jogendra Bhagat and one Ram Awadh Bhagat, filed one partition suit being Title Partition Suit No. 150 of 1996 against (1) Lali Bhagat (2) Gajadhar Bhagat (3) Binod Bhagat and (4) Kalicharan Bhagat praying therein for partition of 1/4th share in Schedule B property in their favour, after appointing Survey Knowing Pleader Commissioner and also for possession over the said property. However, since during pendency of the suit defendants no. 1-Lali Bhagat and defendant no. 4-Kalicharan Bhagat died as such they were substituted by 1(a) Rajendra Bhagat; 1(b) Surendra Bhagat; 1(c) Satyendra Bhagat, 1(d) Smt. Saraswati Devi, all children of Late Lali Bhagat and 4(a) Meena Devi, D/o late Kalicharan Bhagat. The relationship between the plaintiffs and defendants, with reference to their common ancestor Bechu Bhagat was set out in the Genealogical table given in Schedule A of the plaint. 4. The ancestors of the plaintiffs and defendants originally belongs to district Chhapra, the then State of Bihar and acquired some ancestral landed property by virtue of inheritance, as described in Item No. 1 of Schedule B of the plaint, which were recorded in the name of Bechu Bhagat. Since the ancestors of plaintiffs and defendants were facing hardship in maintaining his family from the emerging income of Item I of Schedule B property, as such defendant no. Since the ancestors of plaintiffs and defendants were facing hardship in maintaining his family from the emerging income of Item I of Schedule B property, as such defendant no. 1 (Lali Bhagat S/o Bechu Bhagat) first of all came to Dhanbad to earn livelihood and on the land as described in Item No. II of Schedule B, which was initially full of Jhari and Putus, started cultivation for his livelihood by growing vegetables thereupon. But it is alleged that after sometime, the performa defendant no. 4 (Kalicharan Bhagat, S/o late Bechu Bhagat), i.e., father of defendant no. 2 and 3, and plaintiff no. 1 [Ramawadh Bhagat, S/o late Bechu Bhagat] also came to Dhanbad and after doing hard labour reclaimed the entire lands described in Item No. II of Schedule B of the plaint and began to possess jointly by growing vegetables etc. and were residing over the same. Later on, the State made claim over the said land, as mentioned in Item No. II of schedule B land and with the joint earnings of parties, the litigation fought up-to Hon'ble Supreme Court in the name of defendant no. 1. 5. Further, from the joint family income of plaintiff no. 1, defendant no.1, performa defendant no. 4, and the father of defendant no. 2 and 3, i.e., from the earning made from Item No. I and II of Schedule B property they purchased agricultural lands vide various registered deeds and are in joint possession thereof. It has been alleged that property mentioned at item no. II is morefully described in Item No. III of Schedule B of the plaint. 6. Further the plaintiff no.1, defendant no. 1, performa defendant no. 4 and the father of defendant nos. 2 and 3 also purchased lands in their joint name in Mauza Madarpur, District Chapra and constructed Pucca residential house thereupon, which is mentioned in Item No. IV of Schedule B of the plaint. 7. Father of defendant nos. 2 and 3 from the joint family income also purchased land and house in Dhanbad in his own name vide registered sale deeds and also some agricultural lands were purchased which were jointly possessed by them. 7. Father of defendant nos. 2 and 3 from the joint family income also purchased land and house in Dhanbad in his own name vide registered sale deeds and also some agricultural lands were purchased which were jointly possessed by them. But after sometime, some dispute arose between the parties and other purchasers of other co-sharers of the aforesaid land, which resulted into filing of title suit being Title Suit No. 31 of 1974, against one Pursottam Knaji and others, in which final decree was passed and certain portion of land was decreed in their favour, which is mentioned in Item No. V of schedule B of the plaint. 8. From the above facts, the plaintiffs has stated that Item No. 1 of Schedule B is the ancestral property of the parties whereas Item No. II to V of schedule B is the property being acquired by plaintiff no. 1, defendant no.1, performa defendant no. 4 and father of defendant no. 2 and 3 from their joint labour and joint family income. Thus, it has been alleged by the plaintiffs that the entire properties as described in Schedule B are the joint properties of the parties of the suit and each of the plaintiff has got 1/4th share in the joint family property, as described in Schedule B of the plaint and similarly defendant no. 1 has got 1/4th share and defendant no. 2 and 3 have got 1/4th share in the joint family properties. 9. It has been submitted that in the year 1992, father of defendant nos. 2 and 3 died thereafter the relationship between the members of joint family became bitter, as a result of which the parties started residing separately but still they are maintaining their family out of joint income from the joint properties morefully described in Schedule B of the plaint. It has been submitted that well wishers of the parties made several attempts to partition the properties as described in schedule B amicably but failed, hence, the plaintiffs have left with no option but to file the present suit for partition of the joint family properties, as described in schedule B of the plaint. 10. After filing of the suit, being Title (Partition) Suit No. 150 of 1996, pursuant to notice being served upon the defendants, they appeared and filed their separate written statements. 11. Defendant no. 10. After filing of the suit, being Title (Partition) Suit No. 150 of 1996, pursuant to notice being served upon the defendants, they appeared and filed their separate written statements. 11. Defendant no. 1 in his written statement has stated that the suit is not maintainable and is bad for non-joinder of necessary party as wife and four daughters of defendant-Rameshwar Bhagat have not been made party to the suit. However, he admitted that the fact that Lali Bhagat, who was the elder in family, first comes to Dhanbad and after clearing the bush, he made some land cultivatable and started cultivation and thereafter other party to the suit also came there and that property is in joint possession of the family. He has further stated that Rameshwar Bhagat, father of defendant nos. 2 and 3, jointly purchased properties as mentioned at Item No. II, out of joint income. He has stated that all lives together. He has further stated that they have made house upon the properties mentioned at Item No. I and II jointly. Since the defendant no. 1 was the aged one hence he has been made proforma defendant. He has stated there was no occasion for the plaintiffs to file the present suit. 12. Defendant no. 2, in his written statement has stated that the present suit is not maintainable. So far property mentioned at Item No. I is concerned it is paternal property of parties in which partition has already been done. Further there is no title and possession over the properties mentioned in Item No. II and V between the parties, because it is the property acquired by Rameshwar Bhagat, the father of defendant no. 2 and 3. He has further stated that plaintiff has no occasion to file the present suit as parties are not jointly residing rather they live separately. It has further been submitted that properties mentioned at Item No. I of Schedule B has already been partitioned between the parties so it does not need adjudication. He has further stated that defendant no. 1 and 4 jointly claim to have acquired this property but the property was purchased and owned by Rameshwar Bhagat, the father of defendant no. 2 and 3. In brief, he has submitted that Item no. I is the paternal property which has already been partitioned and Item no. He has further stated that defendant no. 1 and 4 jointly claim to have acquired this property but the property was purchased and owned by Rameshwar Bhagat, the father of defendant no. 2 and 3. In brief, he has submitted that Item no. I is the paternal property which has already been partitioned and Item no. II to V is separate property and nothing to do with the present suit. 13. Defendant no. 3 also raised the issue of maintainability on the ground of non-joinder of necessary party as daughters of Bechu Bhagat and daughters of other party have not been made party. He has further stated that father of defendant no. 2 and 3 has acquired the property as mentioned at Item No. II and V at Dhanbad whereupon there is no right, title and possession of other party, so partition cannot be done of these properties. Further property mentioned in Item No. III has also not been purchased from the joint income rather it has been purchased by personal income. 14. The learned Court after hearing learned counsel for the parties and has framed following issues for adjudication of the suit, which is in Hindi. For ready reference the same is being reproduced in Hindi as also its English : English Translation: I. Whether the suit is maintainable in its present form? II. Whether there is fatal defect of the parties of the suit, as a result, this suit is not maintainable? III. Whether there is unity of title and possession among the parties regarding land situated in Dhanbad, the details of the same is given at Item Nos. II and V of Schedule-B of this suit? IV. Whether partition of lands under Item Nos. I, III and IV (which is not under jurisdiction of this Court) are considerable whereas property under Item Nos. II and V only belongs to Rameshwar Bhagat, the father of Defendant Nos. 2 and 3? V. Whether plaintiffs are entitled for decree of partition for any suit land? VI. Whether plaintiffs are entitled for any other relief? 15. Learned counsel for the parties submitted documentary evidence in support of their submission and based on the submission advanced on behalf of parties the learned court first took up issue no. 2 and 3? V. Whether plaintiffs are entitled for decree of partition for any suit land? VI. Whether plaintiffs are entitled for any other relief? 15. Learned counsel for the parties submitted documentary evidence in support of their submission and based on the submission advanced on behalf of parties the learned court first took up issue no. 3 and 4 for adjudication so that it can be ascertained as to whether there is unity of title and possession over the land situated at Dhanbad or not, which has been mentioned at Item No. II and V of Schedule B and further property at Item No. I, III and IV, which are not situated within the territorial jurisdiction of this Court and whether these properties are partitionable or not and further property mentioned at Item NO. II and V are exclusive property of Rameshwar Bhagat or not. 16. The parties have stated that the ancestors of parties were originally habitat of district Chapra, Bihar. Therefore, property at Item No. I is inherited by them. Defendant no. 1 for the first time came for livelihood at Dhanbad and after clearing Futus and Bush over the property mentioned at Item No. II land started cultivation. After some time, performa defendant no. 4 and father of defendant no. 2 and 3, Rameshwar Bhagat also came Dhanbad and defendant no. 1 took possession over the property as mentioned in Item No. II of Schedule B. 17. Learned counsel for the plaintiffs has submitted that property mentioned at Item No. I, III and IV is the joint property of parties, which has been purchased by joint income of family. Learned counsel for the defendants has submitted that land situated at khata no. 157 of plot no. 4576 and 2439 was settled in favour of late Lali Bhagat (defendant no. 1) by the Jharia King and further land of Khata No. 51 was purchased by Lali Bhagat in the name of Rameshwar Bhagat, whereupon Rameshwar Bhagat has never any possession, Lali Bhagat and sons of Lali Bhagat are cultivating on the aforesaid land. 18. Learned Court after hearing learned counsel for the parties and on perusal of documents filed on behalf of parties has come to the conclusion that parties have not produced the complete paper with respect to land as mentioned in Item Nos. 18. Learned Court after hearing learned counsel for the parties and on perusal of documents filed on behalf of parties has come to the conclusion that parties have not produced the complete paper with respect to land as mentioned in Item Nos. I, II, III, IV and V and in absence of complete set of paper no order can be passed for partition of the schedule property. 19. Based on the aforesaid facts and pleadings available on record, the learned court came to the conclusion that there is no jointness of property situated at Dhanbad, which has been mentioned at Item No. II and V of Schedule B. Further properties mentioned at Item No. I, III and IV is not fit for partition. Further, learned Court came to the conclusion that item no. II and V is not the exclusive property of father of defendant no. 2 and 3, namely, Rameshwar Bhagat. Accordingly, decided issue no. 3 and 4 against the plaintiffs. 20. So far, issue no. 1, 2 and 5 are concerned, it has come on record that admittedly all the three sisters of defendant no. 1 has not been made party as also wife of Rameshwar Bhagat and his daughters were not made party, therefore the suit is barred by non-joinder of necessary party. Further in view of the fact that there is no khata no. of property mentioned at Item No. IV and further the court since has come to the conclusion that there is no jointness of property at Dhanbad. Therefore, the Court has come to the conclusion that Issue nos. 1, 2 and 5 are decided against the plaintiffs. 21. Accordingly, the Title (Partition) Suit No. 150 of 1996 was dismissed against the plaintiffs vide order dated 03.09.2016. 22. Thereafter, the plaintiff no. 2 of Title (Partition) Suit no. 150 of 1996, namely, Yogendra Bhagat filed another suit being Original Suit No.56 of 2017 for decree of plaintiff's 1/4 share in schedule A, mainly on the ground that as stated at paragraph 29 of the plaint that defendant no. 1 (in Original Suit No. 56 of 2017) and plaintiff filed a suit for partition being Title (Partition) Suit no. 150 of 1996, namely, Yogendra Bhagat filed another suit being Original Suit No.56 of 2017 for decree of plaintiff's 1/4 share in schedule A, mainly on the ground that as stated at paragraph 29 of the plaint that defendant no. 1 (in Original Suit No. 56 of 2017) and plaintiff filed a suit for partition being Title (Partition) Suit no. 150 of 1996 but the same was dismissed on technical ground of non-impleadment of all necessary party i.e., daughters of Bechu Bhagat and/or their successors and also for improper description of the suit property so that partition could not be made by metes and bounds. 23. Written Statement has been filed on behalf of some defendants. 24. In the said suit, a petition dated 18.02.2019 was filed on behalf of defendant nos. 10, 11 and 13 to drop the trial of the suit being non-maintainable as hit under Order 2 Rule 2 besides other grounds. Rejoinder to the said petition was filed on behalf of plaintiff. 25. The learned trial after hearing the parties dismissed the petition dated 18.02.2019 filed on behalf of defendant nos. 10, 11 and 13, against which, the present petition has been filed. 26. Mr. J.K. Pasari, learned counsel for the petitioner has submitted that the petitioner-defendant has submitted that in the written statement they have categorically stated that the suit is barred under Order II Rule 2 of the Code of Civil Procedure and barred by res judicata. 27. It has further been submitted that the Original Suit No. 56 of 2017 is not maintainable in absence of any liberty having been granted in earlier Title Partition Suit No. 150 of 1996 to file a fresh Title Partition Suit. 28. It has further been submitted that the learned Court while dismissing the earlier suit, after framing the issues on maintainability i.e., on the issue of non-joinder of necessary party has also framed the issue regarding joint-ness of property as mentioned in Schedule B property, and decided all the issue on merit as well as maintainability against the plaintiff of that suit, therefore, it cannot be said that suit has been dismissed only on technical ground rather the suit was dismissed on merit also. 29. 29. It has been submitted that the plaintiff of the Title Partition Suit No. 150 of 1996, if at all is aggrieved with the said order he could have file appeal but instead of doing so he has filed the Original Suit No. 56 of 2017, therefore, the same is not maintainable and is barred by principle of res judicata, as the matter has finally been decided by the Court in Title Partition Suit No. 150 of 1996 vide order dated 03.09.2016. 30. But learned Court while rejecting petition dated 18.02.2019 of the petitioner (defendant nos. 10, 11 and 13) did not take into consideration these facts and came to the conclusion that the suit [Title Partition Suit No. 150 of 1996] was dismissed on the ground of non-joinder of parties being a fatal defect to the suit of partition and the same has been discussed in detail at para 9 of the judgment. Accordingly, rejected the petition dated 18.02.2019 filed by the petitioners, which is not sustainable in law. Therefore, prayer has been made for quashing of order dated 07.09.2021 passed in Original Suit No. 56 of 2017 by learned Civil Judge, Senior Division-II, Dhanbad and trial of the Original Suit No. 56 of 2017 be dropped. 31. After filing of the present petition, at the request of learned counsel for the petitioners notice was served upon the Opp. Party No. 1 to 27 through their respective counsel appearing in Original Suit no. 56 of 2017. Pursuant thereto, O.P. No. 4 to 6 and 13 and 14 appeared through counsel. So far O.P. Nos. 1 and 8 to 17 are concerned, the service report shows that it has validly been served. In respect of O.P. No. 2, 3, 7 and 18 to 27, undelivered notice has been received with the report as proceeded ex-parte. Thereafter notice was directed to be served personally upon O.P. Nos. 2, 3, 7 and 18 to 27 vide order dated 6th November, 2023 but no requisites for personal service was furnished. 32. Therefore, this Court proceeded to hear the matter on the basis of pleading available on record. 33. Mr. Lukesh Kumar, learned counsel for the appearing Opp. Thereafter notice was directed to be served personally upon O.P. Nos. 2, 3, 7 and 18 to 27 vide order dated 6th November, 2023 but no requisites for personal service was furnished. 32. Therefore, this Court proceeded to hear the matter on the basis of pleading available on record. 33. Mr. Lukesh Kumar, learned counsel for the appearing Opp. Parties, defending the order passed by learned court below has submitted that ground taken by the petitioner-defendants of res judicata and suit being hit by Order II Rule 2 CPC is wholly misconceived and not maintainable and not maintainable either in fact or law. 34. Learned counsel for the Opp. Parties has further submitted that from perusal of petition dated 18.02.2019 filed by the petitioner, it would appear that the same has been filed seeking maintainability of the suit in view of provisions as contained in Order II Rule 2 CPC but from the prayer as also from the pleading it would appear that the petition has been filed on the ground of res judicata as well as under the provisions of Order II Rule 2 CPC. But, it is settled that the scope, ambit and purpose of both the provisions are distinct and different. It has further been submitted that in Original Suit No. 56 of 2017 four separate written statements have been filed but in none of the written statements the plea of present suit being barred by res judicata or under Order II Rule 2 CPC has been taken. It is settled principle of law that plea is to be raised in the written statement and in absence thereof, issue cannot be framed in absence of pleading to that effect. 35. It has further been submitted that even the plea of res judicata and Order II Rule 2 does not entail the dismissal of the suit at the threshold stage rather such plea leads to the framing of issues on those mixed questions of fact and law. 36. Submission has been made that earlier suit for partition was filed sometimes in the year 1996 but as the said suit was dismissed on technical ground so fresh cause of action continued to arise in view of settled principle of law that cause of action for a suit of partition is recurring one i.e., it continues to arise till properties are finally partitioned. The bar of res judicata applies only when the issues directly and substantially involved are heard and finally decided but here since the suit for partition was dismissed on technical ground as such the principle of res judicata will not apply. It is admitted fact that some of the co-owners were not impleaded in earlier round of litigation therefore the suit was declared bad for non-joinder of necessary party. 37. This Court having heard learned counsel for the parties and after going through the pleadings available on record has found that earlier the plaintiffs of the present suit, namely, Yogendra Bhagat and one Ram Awadh Bhagat son of late Bechu Bhagat, have filed one partition suit being Title Partition Suit No. 150 of 1996 against the defendants-(1) Lali Bhagat (2) Gajadhar Bhagat (3) Minor Binod Bhagat and (4) Kalicharan Bhagat praying for partition of 1/4th share in Schedule B property in their favour as also for possession over the said property. 38. In the plaint they have pleaded that the ancestors of the plaintiffs and defendants were originally belongs to district Chhapra, the then State of Bihar and acquired some ancestoral landed property by virtue of inheritance, as described in Item No. 1 of Schedule B of the plaint, which were recorded in the name of Bechu Bhagat. Since the ancestors of plaintiffs and defendants were facing hardship in maintaining his family from the emerging income of Item I of Schedule B property, as such defendant no. 1 (Lali Bhagat S/o Bechu Bhagat) first of all came to Dhanbad to earn livelihood and on the land as described in Item No. II of Schedule B, which was initially full of Jhari and Putus and started cultivation for his livelihood by growing vegetables thereupon. But it is alleged that after sometime, the performa defendant no. 4 (Kalicharan Bhagat, S/o late Bechu Bhagat), i.e., father of defendant no. 2 and 3, and plaintiff no. 1 [Ramawadh Bhagat, S/o late Bechu Bhagat] also came to Dhanbad and after doing hard labour reclaimed the entire lands as described in Item No. II of Schedule B of the plaint and began to possess jointly by growing vegetables etc. and were residing over the same. 39. 2 and 3, and plaintiff no. 1 [Ramawadh Bhagat, S/o late Bechu Bhagat] also came to Dhanbad and after doing hard labour reclaimed the entire lands as described in Item No. II of Schedule B of the plaint and began to possess jointly by growing vegetables etc. and were residing over the same. 39. The plaintiffs has stated that Item No. 1 of Schedule B is the ancestral property of the parties situated at Chappra, Bihar whereas Item No. II to V is the property being acquired by Plaintiff no. 1, defendant no.1, performa defendant no. 4 and father of defendant no. 2 and 3 from their joint labour and joint family income. 40. It has been submitted that in the year 1992, father of defendant nos. 2 and 3 died thereafter the relationship between the members of joint family became bitter, though well-wishers of the parties made several attempts to partition the properties as described in schedule B amicably but failed, hence, the plaintiffs filed the present suit [Original Suit No. 56 of 2017] for partition of the joint family properties, as described in schedule B of the plaint. 41. After filing of the suit pursuant to notice being served upon the defendants, they appeared and filed their separate written statements. 42. The learned court after going through the pleading available on record framed the issues, as quoted and referred in above paragraph and after hearing the parties answered all the issues against the plaintiffs and came to the conclusion that parties have not produced the complete paper with respect to land as mentioned in Item Nos. I, II, III, IV and V and in absence of complete set of paper no order can be passed for partition of the schedule property. 43. Based on the aforesaid facts and pleadings available on record, the learned court came to the conclusion that there is no jointness of property situated at Dhanbad, which has been mentioned at Item No. II and V of Schedule B. Further properties mentioned at Item No. I, III and IV is not fit for partition. 44. Further, learned Court came to the conclusion that item no. II and IV is not the exclusive property of father of defendant no. 2 and 3, namely, Rameshwar Bhagat. Accordingly, decided issue no. 3 and 4 against the plaintiffs. So far, issue no. 44. Further, learned Court came to the conclusion that item no. II and IV is not the exclusive property of father of defendant no. 2 and 3, namely, Rameshwar Bhagat. Accordingly, decided issue no. 3 and 4 against the plaintiffs. So far, issue no. 1, 2 and 5 are concerned, it has come on record that admittedly all the three sisters of defendant no. 1 has not been made party as also wife of Rameshwar Bhagat and his daughters were not made party, therefore the suit is barred by non-joinder of necessary party. Further in view of the fact that there is no khata no. of property mentioned at Item No. IV and further the court since has come to the conclusion that there is no jointness of property at Dhanbad. 45. Therefore, the Court has come to the conclusion that Issue nos 1, 2 and 5 are decided against the plaintiffs. Accordingly, the suit was dismissed vide order dated 03.09.2016. 46. Thereafter, the plaintiff no. 2 of Title (Partition) Suit no. 150 of 1996, namely, Yogendra Bhagat filed another suit being Original Suit No.56 of 2017 praying therein for preliminary decree of plaintiff's share of 1/4th in the properties as described in Schedule A of the plaint. 47. In the suit, notice was sent upon the defendants, pursuant thereto they appeared as also defendant no. 10, 11 and 13 had filed written statement. 48. In the Original Suit No. 56 of 2017, the defendant no. 10, 11 and 13 filed a petition on 18.02.2019 praying therein to drop the trial of present suit being non-maintainable as hit under Order II Rule 2 CPC besides other grounds. The learned court below after hearing the parties dismissed the petition, hence the present petition. 49. It is settled principle of law that to determine whether the suit is barred by res judicata it is necessary that the issues in the subsequent suit were directly and substantially is in issue in the former suit as also the former suit was between the same parties. 50. Admittedly, herein, it is the not the case that the plaintiffs in original suit has tried to conceal the fact about filing of former partition suit. Further, admitted fact herein is that after filing of the original suit, notices were issued to defendants, pursuant thereto they appeared and filed written statement. 50. Admittedly, herein, it is the not the case that the plaintiffs in original suit has tried to conceal the fact about filing of former partition suit. Further, admitted fact herein is that after filing of the original suit, notices were issued to defendants, pursuant thereto they appeared and filed written statement. Thereafter, the petition dated 18.02.2019 has been filed by the defendant nos. 10, 11 and 13, in which the impugned order has been passed which is under challenge by invoking the jurisdiction conferred to this Court under Article 227 of the Constitution of India. 51. This Court therefore deems it fit and proper to deal with the power which is to be exercised under Article 227 of the Constitution of India. 52. Law is well settled that the power which is to be exercised by the Court exercising the power conferred under Article 227 of the Constitution of India is only to show interference if there is error apparent on face of the record. 53. The High Court sitting under Article 227 of the Constitution of India has got limited jurisdiction as has been held by the Hon'ble Supreme Court rendered in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 holding 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. 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. i. 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 11 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. iii. 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. iv. 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. v. 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. vi. 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. vi. 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. vii. 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. 54. Recently, the Hon'ble Apex Court in the case of M/s Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181 , has been pleased to hold that the power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. For ready reference relevant paragraph 15 to 17 of the judgment reads as under : "15. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. For ready reference relevant paragraph 15 to 17 of the judgment reads as under : "15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed : (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to." 17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex parte decree and therefore the submission that the appellant came to know of the ex parte decree only on release from jail on 6-5-2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6-10-2015 to 6-5-2017. If it was felt that the application for setting aside the ex parte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution." 55. This Court is now proceeding to examine legality and propriety of the impugned order based upon the fact as to whether the order impugned suffers from any error said to be apparent on the face of it. 56. The aforesaid consideration is required to be tested on the basis of factual aspect, as has been discussed hereinabove, from which it is evident that prayer has been made to drop the trial of the Original Suit in entirety. 57. The learned trial Court has passed order by rejecting the said petition vide order dated 07.09.2021 by referring therein that all the issues which has been raised is required to be considered only after commencement of the trial i.e., by framing of issues and leading evidence on those issues on behalf of parties. 58. For ready reference, the concluding paragraph of order dated 07.09.2021 [order impugned] passed in Original Suit No. 56 of 2017 is quoted as under : "That CC of the plaint and the judgment dated 03.09.2016 passed in Title (Partition) Suit no. 150/96 was filed on behalf of the defendants. 58. For ready reference, the concluding paragraph of order dated 07.09.2021 [order impugned] passed in Original Suit No. 56 of 2017 is quoted as under : "That CC of the plaint and the judgment dated 03.09.2016 passed in Title (Partition) Suit no. 150/96 was filed on behalf of the defendants. Further on perusal of the judgment dated 03.09.2016 of Title (Partition) Suit no. 150/96, it is clear that the suit was dismissed on the ground of non-joinder of parties being a fatal defect to the suit of partition and same has discussed in detail at para 9 of the judgment. The plea of res-judicata raised by the defendant at this stage of the trial can be decided only after leading of evidence by both parties as per issues involved in Title (Partition) Suit no. 150/96 were decided on merit or not can be only adjudicated after evidences being led by both parties. The issue regarding res-judicata cannot be decided at this stage of trial. Hence petition dated 18.02.2019 of the defendant is rejected. Put up on 30.09.2021 of hearing on settlement of issued. Both parties are directed to file proposed issues." 59. In view of finding recorded by learned Original Court, the basic question herein is that at this stage whether the petition filed by the petitioners to drop the trial by taking aid of Order II Rule 2 was said to be proper approach of the petitioner. For the aforesaid consideration the provision of Order II Rule 2 is required to be referred herein, which reads as under : 2. Suit to include the whole claim.— (2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. 60. The bar contained under Order II Rule 2 CPC is attracted so as not to allow the plaintiff to file the suit. The provision of Order II Rule 2 CPC has been considered by Constitution Bench of Hon'ble Apex Court in the case of Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810 wherein the Hon'ble Apex Court while explaining the true spirit of Order II Rule 2 CPC has laid down the parameters as to how and under what circumstances the application of Order II Rule 2 is to be invoked. 61. Bhooralal, AIR 1964 SC 1810 wherein the Hon'ble Apex Court while explaining the true spirit of Order II Rule 2 CPC has laid down the parameters as to how and under what circumstances the application of Order II Rule 2 is to be invoked. 61. It has been held at paragraph 6 of the judgment that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out; (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. 62. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar. 63. The aforesaid principle of law has consistently been followed by Hon'ble Apex Court even in the year 2013, in the case of Virgo Industries (Eng.) Pvt. Ltd Vs. Venturetech Solutions Private Limited [ (2013) 1 SCC 625 ], wherein the principle of law has been reiterated that the cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. 64. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression i.e. cause of action, particularly, in view of clear enunciation in a recent judgment of this Court in Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust [ (2012) 8 SCC 706 ]. The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury's Laws of England (4th Edn.). The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury's Laws of England (4th Edn.). The following reference from the above judgment, therefore, be apt for being extracted hereinbelow : " 'Cause of action' has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular action on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action." 65. The aforesaid judgment has also been considered by Hon'ble Apex Court in the case of Rathnavathi & Anr. Vs. Kavita Ganashamdas [ (2015) 5 SCC 223 ]. The relevant paragraphs for parameters to be adopted by the trial Court is at paragraph 26 and 27, which reads as under : "26. One of the basic requirements for successfully invoking the plea of Order 2 Rule 2 CPC is that the defendant of the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based. As mentioned supra, since in the case on hand, this basic requirement in relation to cause of action is not made out, the defendants (appellants herein) are not entitled to raise a plea of bar contained in Order 2 Rule 2 CPC to successfully non-suit the plaintiff from prosecuting her suit for specific performance of the agreement against the defendants. 27. Indeed when the cause of action to claim the respective reliefs were different so also the ingredients for claiming the reliefs, we fail to appreciate as to how a plea of Order 2 Rule 2 CPC could be allowed to be raised by the defendants and how it was sustainable on such facts." 66. 27. Indeed when the cause of action to claim the respective reliefs were different so also the ingredients for claiming the reliefs, we fail to appreciate as to how a plea of Order 2 Rule 2 CPC could be allowed to be raised by the defendants and how it was sustainable on such facts." 66. Herein the defendant has filed petition by invoking jurisdiction of the Court by invoking Order II Rule 2 CPC while one of the basic requirement for successfully invoking Order II Rule 2 CPC is that the defendant of the suit must be able to show that second suit is in respect of same cause of action on which the previous suit was based. 67. From perusal of the impugned order dated 07.09.2021 as also the plaint of Title (Partition) Suit No. 150 of 1996 and Original Suit No. 56 of 2017 including its Schedule it appears that : I. Initially Title Partition Suit No. 150 of 1996 was filed for partition of land in which, the learned court, after hearing the parties, has come to the conclusion that parties have not produced the complete paper with respect to land as mentioned in Item Nos. I, II, III, IV and V and in absence of complete set of paper no order can be passed for partition of the schedule property. II. Further, learned court came to the conclusion that there is no jointness of property situated at Dhanbad, which has been mentioned at Item No. II and V of Schedule B and the properties mentioned at Item No. I, III and IV is not fit for partition. Further, learned Court came to the conclusion that item no. II and IV is not the exclusive property of father of defendant no. 2 and 3, namely, Rameshwar Bhagat. Accordingly, decided issue no. 3 and 4 against the plaintiffs. III. So far, issue no. 1, 2 and 5 are concerned, it has come on record that admittedly all the three sisters of defendant no. 1 has not been made party as also wife of Rameshwar Bhagat and his daughters were not made party, therefore the suit is barred by non-joinder of necessary party. There is no khata no. of property mentioned at Item No. IV. Therefore, the Court has come to the conclusion that Issue nos. 1, 2 and 5 are decided against the plaintiffs. There is no khata no. of property mentioned at Item No. IV. Therefore, the Court has come to the conclusion that Issue nos. 1, 2 and 5 are decided against the plaintiffs. Accordingly, the issues were decided against the plaintiffs. IV. In the case at hand, i.e., in Original Suit No. 56 of 2017 the parties have appeared and put their appearance and have filed written statements also but certainly neither issues have been framed nor evidence has been led by the parties so at this stage it would not be apt to come to the conclusion about the suit being barred by principle of res judicata. V. Therefore, whether the issues involved in Title (Partition) Suit No. 150 of 1996 were decided on merit or not can only be adjudicated after evidences being led by both the parties. VI. It is well settled principle that the issues regarding res judicata can well be decided after framing of issues on this issue and leading evidence by the party on the aforesaid issue. 68. Now coming to the impugned order passed by learned Original Court it appears that the learned Court taking the facts, as referred hereinabove, into consideration has rejected the petition filed under Order II Rule 2 CPC which cannot be said suffer error on face of it. 69. Since this Court is exercising the jurisdiction under Article 227 of the Constitution of India it has got very limited jurisdiction as per the law laid down by Hon'ble Apex Court in the case of Garment Craft v. Prakash Chand Goel (supra) and other cases on the issue, as referred above, and from the discussions made hereinabove, no error is apparent on face of record, as such this Court is of the view that the impugned order needs no interference by this Court. Moreover, the learned trial Court has also made an observation that this issue will be considered at appropriate stage, therefore, the parties are directed to lead evidence for its proper appreciation. 70. Accordingly, the instant petition stands dismissed. 71. Before parting with the order, it is made clear that this Court has not given any finding as to whether the Original Suit No. 56 of 2017 is barred by principles of res judicata or not. However, the learned trial Court may frame the issue of preliminary issue first and decide the same in accordance with law. 71. Before parting with the order, it is made clear that this Court has not given any finding as to whether the Original Suit No. 56 of 2017 is barred by principles of res judicata or not. However, the learned trial Court may frame the issue of preliminary issue first and decide the same in accordance with law. The parties are at liberty to raise all the points before the learned Court below in Original Suit No. 56 of 2017. 72. With the aforesaid observations this instant petition stands disposed of. 73. Pending Interlocutory Application, if any, stands disposed of.