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2024 DIGILAW 425 (JHR)

Sachidanand Deo @ Pratap Deo v. Ramesh Singh

2024-04-19

SUJIT NARAYAN PRASAD

body2024
JUDGMENT : SUJIT NARAYAN PRASAD, J. I.A. No.688 of 2024 1. The instant interlocutory application has been filed for deletion of the name of Proforma Opp. Party No.15, namely, Rajpati Devi from the cause title, who had died on 27.12.2023 during pendency of the instant petition. 2. Heard learned counsel for the petitioner. 3. Considering the ground taken in the instant interlocutory application, this Court is of the view that the prayer for deleting the name of the deceased, Proforma Opp. Party No.15 from the cause title, requires to be allowed. 4. Accordingly, the prayer made in the instant interlocutory application, is allowed 5. The Proforma Opp. Party No.15 is hereby deleted from the array of the opposite parties. 6. In view thereof, I.A. No.688 of 2024 stands allowed. 7. Office is directed to carry out necessary deletion in the array of opposite party. C.M.P. No.1244 of 2023 8. It has been submitted by Ms. Trishna Sagar, learned counsel that today Vakalatnama has been filed on behalf of Proforma Respondent nos.16 to 19 and 21 to 23. 9. The instant civil misc. petition has been filed under Article 227 of the Constitution of India, whereby and whereunder, the petition filed on behalf of the applicant on whose behalf the petition under Order 1 Rule 10 was filed which has been allowed by the learned trial Court, is under challenge in this petition. 10. The brief facts of the case, as per the pleading made in the instant petition, required to be referred which reads as under:- 11. It is the case of the petitioner that the lands of Khata No. 117 of Mouza-Punai, Thana No.-110, Khewat No.-2/11 stood recorded in the survey Khatiyan as Bakast where the landlords namely Sukhhlal Deo and Maheshwar Deo had equal share. Khata No. 123 of Mouza Punai stood recorded as Gairmajurwa Khas in the survey Khatiyan where the landlords namely, Sukhhlal Deo and Maheshwar Deo had equal share. Khata No. 121 was recorded in the name of Barhan S/o Laxman Mahra who died issueless and as such, Khata No. 121 went back to the landlords, namely, Sukhhlal Deo and Maheshwar Deo. 12. Khata No. 121 was recorded in the name of Barhan S/o Laxman Mahra who died issueless and as such, Khata No. 121 went back to the landlords, namely, Sukhhlal Deo and Maheshwar Deo. 12. As per the statement made in the Plaint that the Plaintiff has himself stated that the lands held by the two brothers, namely, Sukh Lal Deo and Mahesh Deo, were partitioned between them and each one was allotted half of the entire properties. The Partition Suit, thus, was only confined to the share which was allotted to Sukh Lal Deo and the partition was claimed essentially against the other descendants of Sukh Lal Deo. The Plaintiff did not make any claim against the descendants of Maheshwar Deo as according to the Plaintiff himself there was a partition between Sukh Lal Deo and Maheshwar Deo and therefore, no relief has been claimed as against the legal heirs of Maheshwar Deo. Although, Plot No. 1570, within Khata No. 117 had total area of 67 decimals Sukhlal Deo and Maheshwar Deo were entitled to only 33.5 decimals of each land, being 50 percent of 67 decimals of land in Plot No. 1570, within Khata No. 117, Mouza Punai, Thana No. 110, District-Hazaribagh. Bhavnath Deo and Ramkeshwar Deo settled the said 50 percent of the properties/Plots in the year 1938 which are there in Khata No. 117, Mouza Punai, Thana No. -110 Punai, District-Hazaribagh and in favour of their wives, namely, Kismati Devi and Alakhraj Devi which included 33.5 decimals of land in Plot No. 1570. Thereafter, the name of the said Settlees, namely, Kismati Devi and Alakhraj Devi were entered in the revenue records before the landlord and after vesting, in the revenue records of the State. 13. The fact of partition between the branch of Sukhlal Deo and Maheshwar Deo was absolutely final. Maheshwar Deo settled 50 percent of land in favour of daughter-in-law Rajpati Devi which is 6.72 x1/2 acres. However, Ramesh Singh, Umesh Singh, Ravindra Singh S/o Late Awadh Singh claimed/filed an application under Order 1 Rule 10 of the CPC claiming their right on the basis of Sale Deed dated 10.9.1957 executed by one Laxman Jolha. Maheshwar Deo settled 50 percent of land in favour of daughter-in-law Rajpati Devi which is 6.72 x1/2 acres. However, Ramesh Singh, Umesh Singh, Ravindra Singh S/o Late Awadh Singh claimed/filed an application under Order 1 Rule 10 of the CPC claiming their right on the basis of Sale Deed dated 10.9.1957 executed by one Laxman Jolha. However, from the recital of the said Sale Deed, it appears that the vendor of the aforesaid Sale Deed claimed that 67 decimals of Plot No. 1570, out of Khata No. 117 which was settled to him by Bhavnath Deo vide Hukumnama dated 02.07.1944 and in that capacity, he became the owner of the land and transferred it to Awadh Singh. 14. The entire story of Hukumnama given by Bhavnath Deo is falsified from the fact that it was claimed that Bhavnath Deo had settled 67 decimals of land from out of Plot No. 117, in favour of Laxman Jolha vide Hukumnama dated 2.7.1944. This story was absolutely false in view of the fact that undisputedly Bhavnath Deo and his brother had right over only 33.5 decimals of land in Plot No. 1570, Khata No. 117 and even out of the said 33.5 decimals, the said Bhavnath Deo had only 50 percent, therefore, Bhavnath Deo having right over only 16.75 decimals of land, could not have settled entire 67 decimals of Plot No. 1570, Khata No. 117, of Vill.-Punai District Hazaribagh. 15. Thus, the story put forth by the intervenor's was absolutely improbable and against the revenue records of the state and therefore even otherwise they did not have any right whatsoever to have intervened in the instant case and to get their title decided in a Suit for partition between family members. 16. However, certain disputes relating to partition of the property belonging to Sukh Lal Deo, cropped up between his descendants, which led to filing of Partition Suit, registered as Partition Suit 84 of 2010 by Shrawan Kumar Deo. In the said suit, the Plaintiff primarily prayed for relief as against Defendant No. 1 to 10, who all were the descendants of Sukh Lal Deo. It has already been that partition between Sukh Lal Deo and his brother namely Maheshwar Deo was not in dispute, by the parties to the suit. In the said suit, the Plaintiff primarily prayed for relief as against Defendant No. 1 to 10, who all were the descendants of Sukh Lal Deo. It has already been that partition between Sukh Lal Deo and his brother namely Maheshwar Deo was not in dispute, by the parties to the suit. In the said suit, the suit property, the only properties which were involved were the properties which were allotted to the share of Sukh Lal Deo and the Plaintiff was only seeking his share in the properties belonging to Sukh Lal Deo and therefore, the Petitioner herein was only impleaded as Proforma Defendant and no relief has been claimed as against him. The Defendant/Petitioner herein was impleaded in the said Suit only as a Proforma Defendant in order to help in complete adjudication of the matter in dispute. 17. In the aforesaid Suit, which was registered as Partition Suit No. 84 of 2010, the Defendants appeared and filed their Written Statement. The Defendant No. 1 to 10 filed 1 set of Written Statement whereas Defendant No. 11 series filed another set of Written Statement. 18. However, when the Suit was pending before the trial Court at the stage of Defendants' witnesses, the Respondents No. 1 to 3 herein filed an Intervention Petition on 4.3.2022/10.3.2022 under the provisions of Order 1 Rule 10 of the Code of Civil Procedure, 1908. The said petition, however, was dismissed due to non-prosecution vide order dated 22.5.2023, by Civil Judge Senior Division-III, Hazaribagh, passed in Partition Suit No. 84/2010. However, the said Respondent No. 1 to 3 again filed an Intervention Petition under the provisions of Order 1 Rule 10 of the Code of Civil Procedure, 1908 on 23.6.2023. The Respondent Nos.1 to 3, in their application under Order 1 Rule 10, primarily stated inter-alia that:- a) That one Laxman Jolha S/o Budhan Jolha of Vill. Punai, P.S Ichak, Distt.-Hazaribag acquires the land measuring an area of 0.067 acres of Plot No. 1570 Khata No. 117 by virtue of Hukumnama. Granted by ex-landlord namely Bhawnath Deo & was put in possession upon the same & received rent from the settles & after vesting of the estate in the State said Laxman Jolha was recognized as raiyat after due enquiry & government rent receipt was also issued on receipt of rent from him. Granted by ex-landlord namely Bhawnath Deo & was put in possession upon the same & received rent from the settles & after vesting of the estate in the State said Laxman Jolha was recognized as raiyat after due enquiry & government rent receipt was also issued on receipt of rent from him. b) That the said Laxman Jolha in exercise of his right, title, interest, Possession & for legal necessities sold & transfer the entire land in favour of Petitioner's father Awadh Singh by virtue of Register Deed of sale dated 17/07/1957 & put him in possession over the same. c) That the purchaser Awadh Singh after purchase got his name mutated in the Anchal in the office of Anchal Adhikari and started to make payment of them against the grant of rent receipt. d) That the said Awadh Singh who died sometime in the year 2020 leaving behind the Petitioners as his legal heirs & successors who succeeded his interest and come continued in khas cultivating possession without any hindrance & objection from any corner far less from the Plaintiffs and Defendants from the suit & as such the Petitioners acquires a right of adverse possession. e) That the Plaintiff in collusion with the Defendants by suppressing the possession of the Petitioners on the basis of his Sale Deed did not implead as party in the Suit with a view to obtain a Decree against him. f) That in view of the facts stated above the Petitioners are necessary party in the Suit in order to enable the Court effectively and completely adjudicate upon & settle on the questions which cannot be possible unless they are impleaded as a party in the suit. g) That since the claim of the Petitioner relates to lands involve in the present Suit out of Schedule 'A' land of the Plaint and as such it is desirable in the interest of justice & equity to implead these Petitioners as Defendant to this Suit so that their claim may also be adjudicated by this learned Court. 19. The Plaintiff/Respondent No. 4 herein, Defendant No. 1 to 10/Respondent No. 5 to 14 herein as well as original Defendant No.11/predecessor in interest of Petitioner herein, filed separate replies to the aforesaid petition filed by the intervenor under the provisions of Order 1 Rule 10 of this Code of Civil Procedure, 1908. 20. 19. The Plaintiff/Respondent No. 4 herein, Defendant No. 1 to 10/Respondent No. 5 to 14 herein as well as original Defendant No.11/predecessor in interest of Petitioner herein, filed separate replies to the aforesaid petition filed by the intervenor under the provisions of Order 1 Rule 10 of this Code of Civil Procedure, 1908. 20. The learned trial Court has heard the parties and vide order dated 26.7.2023, has erroneously allowed the Intervention Application dated 23.6.2023, filed by the Intervenor's/Respondent No. 1 to 3 herein and has under misconception of law, impleaded the said intervenor as party to the Partition Suit No. 84/2010. 21. It is evident from the factual aspect that while the suit has been filed for partition of the suit property, the petition under Order 1 Rule 10 was filed on behalf of the Interveners who have sought for their impleadment to the party to the aforesaid trial on the ground that the part of the property has been sold out in their favour by virtue of sale deed being sale deed no. 5669 dated 17.07.1957. 22. It appears from the statement made in the petition filed under Order 1 Rule 10 that the interveners who subsequently have been impleaded as party to the proceeding by virtue of the impugned order, has claimed their right and title over the land in question by purchasing the same from the settlee in whose favour the land was settled by virtue of Sadahukumnama. 23. An objection was filed on behalf of the Proforma defendant, who claims to be the shareholder of the property in question that since the suit is for partition in the property in question which is inter-say interest of the title over the property in question amongst the shareholders having no nexus with the third party over the property in question. 24. Learned counsel for the petitioner, based upon the aforesaid ground has submitted that since the aforesaid aspect of the matter, has not been taken into consideration by the learned trial Court while allowing the petition filed under Order 1 Rule 10 of the C.P.C., hence, the order suffers from patent illegality and as such, not sustainable in the eye of law. 25. While on the other hand, Ms. 25. While on the other hand, Ms. Trishna Sagar, learned counsel for the Proforma Respondent nos.16 to 19 and 21 to 23 who also claims to be similar right and interest, being the co-sharer, over the property in question. 26. This Court, for the aforesaid purpose and on consideration of the factual aspect particularly the basis of claim which has been made on behalf of the contesting opposite parties, on whose favour the petition under Order 1 Rule 10 of the CPC, was allowed for their impleadment on the basis of their claim that part of the property had been purchased by them from the settlee in whose favour the name was settled by virtue of Sadahukumnama. The propriety of hukumnama is yet to be considered, since, the same is the basis of the transfer of land in favour of the newly impleaded opposite parties based upon the order passed by the learned trial court while allowing the petition filed under the petition under Order 1 Rule 10 of the CPC. 27. The relevant consideration which has been given by the learned trial Court is the very scope of the Order 1 Rule 10 of the CPC which speaks that if the learned trial court comes to the conclusion that in absence of the party, the suit is not likely to be decided, said to be proper adjudication of the lis, hence, the petition if filed under Order 1 Rule 10 of the CPC showing some interest over the property in question, the same needs to be allowed. 28. Here, in the facts and circumstances of the case, admittedly, the partition suit has been filed amongst the co-sharer of the property in question. But part of the property has been sold out in favour of the newly impleaded opposite parties, hence, after coming to know about the filing of the partition suit and on the basis of the fact that the interest has been created in favour of the person concerned in whose favour the land has been sold out by virtue of the settlement made by way of Sadahukumnama. 29. 29. Here admittedly, the question of property of Hukumnama and the transfer made in pursuant to the said Hukumnama, requires consideration, otherwise, if an instrument has been created said to be incorrect, as the ground has been taken on behalf of the petitioner, even accepting the same, but the question would be, who will give the declaration that the said transfer of property is not valid in the eye of law. The same is to be declared by giving a declaration to that effect by the competent court of civil jurisdiction. 30. There is no dispute that if the partition suit is being filed, it is the interest over the property in question to be apportioned amongst the shareholder of the property in question. 31. Further, it is the admitted fact that in the issue of partition suit, there is no question of any dispute of title since if the title is admitted, the only consideration which is to be given by the concerned Court, to apportion the property by considering the title created in favour of one or the other co-sharer. 32. But here, it is the admitted case, since, having not been denied by the petitioner that the part of the property has been sold out in favour of one and after knowing about the aforesaid partition suit and also Ramesh Singh, Umesh Singh and Ravindra Singh considering the interest over the property in question by virtue of sale deed no.5669 dated 17.07.1957, the petition under Order 1 Rule 10 of the CPC was filed. 33. The learned trial court has considered the said petition and by taking into consideration the sale deed no.5669 dated 17.07.1957 by which, Ramesh Singh, Umesh Singh and Ravindra Singh are claiming their right and based upon the same, they have filed the petition under Order 1 Rule 10 of the CPC and in that circumstances, if the said petition has been allowed by the learned trial Court by virtue of passing the impugned order, the same according to the considered view of this Court, cannot be said to suffer from an error, it is for the reason that suppose, the partition suit will be decided by apportioning the property amongst the co-sharer, then the right said to be created by virtue of the sale deed, will remain un-adjudicated. 34. 34. The submission, however, has been made that the said registered sale deed is not valid in the eye of law and further, the settlement itself was not proper and not in consonance with the rule, it may be a ground to make an opposition but the question is that the declaration in this regard is to come from the competent court of civil jurisdiction, otherwise, the document which has been created by virtue of the sale deed dated 17.07.1957 will remain undecided. 35. In that view of the matter, if the petition has been filed, based upon which, the sale deed dated 17.07.1957 if has been allowed, the same according to the considered view of this Court, cannot be said to suffer from an error in exercising the power conferred under Article 227 of the Constitution of India. 36. It is the settled position of law that the jurisdiction of the court exercising the revisionary jurisdiction, as conferred under Article 227 of the Constitution of India, is very least and the same can only be exercised if there is manifest error or the jurisdictional error, reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 wherein, the Hon’ble Supreme Court has laid down 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. ii. 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. 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. 37. This Court, taking into consideration the aforesaid consideration based upon the fact as also the position of law, is of the view that if the learned trial Court has passed the impugned order, the same cannot be said to suffer from an error. 38. Accordingly, the instant petition fails and is dismissed. 39. Vakalatnama filed on behalf of Proforma Respondent nos.16 to 19 and 21 to 23, be kept on record.