IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 34 of 2010
Bishnu Kumar Modi ........Appellant
Versus
1. Shekhar Modi.
2. Om Prakash Modi.
3. Kishan Kumar Modi. ..........Respondents
CORAM: THE HON'BLE MR. JUSTICE R.K. MERATHIA
For the Appellant : Mr. Rajeeva Sharma, Sr. Advocate
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4/ 5/04/2010
This second appeal has been filed against the judgement
and decree dated 18.1.2010, passed by learned Additional District
Judge, ( FTC), Dumka, in Title ( Partition) Appeal No. 30 of 2007,
confirming the judgment and decree dated 2.9.2004, passed by
learned Subordinate Judge-1, in Title ( Partition) Suit No. 29 of 2001.
It is submitted on behalf of the appellant that the partition
suit brought by the plaintiffs-respondents could be decreed on the
basis of its own strength and not on the basis of weakness of the
defendant-appellant.
It appears that this partition suit was filed by the plaintiff-
Shekhar against Om Prakash-defendant first party and Savitri Devi,
Bishnu and Kishan-defendant as second party, claiming partition of his
1/3rd share in the schedule property. Kishan is own brother of Bishnu
and son of Savitri Devi. Defendants appeared but only Om Prakash and
Kishan filed written statement and ultimately Savitri Devi and Bishnu
were debarred from filing written statement. The defendants-Om
Prakash and Kishan accepted the contention of the plaintiff that he
was adopted by registered deed dated 12.3.1982 by Satyanarayan.
They also claimed partition of their 1/3rd share. Accordingly, no issue
was framed with regard to adoption. The appellants-Bishnu and Savitri
Devi did not take any step in the suit even after they were debarred
from filing written statement. They did not chose to cross examine
witnesses. Ultimately, preliminary decree was passed. Appellant
refused to take notice in the execution case. The learned court below
has rightly observed that the appellant had full knowledge about all
the proceedings but deliberately did not take part in the proceeding
only with a view to delay the matter. After a delay of about 764 days,
the appellant preferred appeal before the learned appellate court. In
these circumstances, it can not be complained that no decree could be
passed in favour of the plaintiff-respondent.
In my opinion, no substantial question of law is involved in the
second appeal, which is accordingly dismissed.
( R.K. Merathia, J)
Rakesh/