IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 2 of 2009
Kamal Kishore Prasad & Others... ... ... Appellants
Versus
Smt. Shanti Sahay & Others... ... ... ... Respondents
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CORAM: THE HON'BLE MR. JUSTICE M. Y. EQBAL
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For the Appellants: M/s A.K. Sinha
For the Respondents: M/s R.R. Tiwary
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3/ 12.05.2009
Learned counsel appearing for the appellants and also
learned counsel appearing for the respondents have prayed to this
Court for disposal of this appeal at the admission stage. But before
allowing the plaintiffs and respondents to make their submission, I
shall have to see as to whether any substantial question of law is
involved or not.
The plaintiffs-respondents filed a suit for partition in respect
of 1/7th share in the suit property stating that there are seven co-
sharer and each one has 1/7th share in the suit property. Defendant
no. 2 and 10 contested the suit by filing written statement and the
suit proceeded ex-parte against rest of the respondents. While
deciding issue No. 6 i.e. ” Whether the plaintiffs are entitled to
1/7th share of the suit property”, the Court below has held as
under:
” Issue No. 6: On perusal of the case
record, it appears that only Df. No. 2 and 10 are the
contesting Dfs,. And the suit has proceeded exparte
against the rest of the Dfs. And since there is one
plaintiff as plaintiff no. 1 and two contesting Dfs.
Therefore, the Pf. No. 1 is entitled for 1/3rd share in
the suit property more fully described in Sch-B of
the plaint in th light of Section 6 of Hindu
Succession Act, 1956. In this way, this issue is also
decided in favour of the plaintiffs.”
Prima facie the decision of the learned judge is absolutely
illegal, erroneous and baseless.
Learned counsel for the plaintiffs-respondents very fairly
submitted that although plaintiff claimed 1/7th share but the Court
below on its own passed the preliminary decree in respect of 1/3rd
share.
For the reasons aforesaid, this appeal is allowed and the
findings recorded on issue no. 6 is set aside. It is held that the
plaintiff is entitled to get 1/7th share in the suit property as claimed
by the plaintiff.
(M. Y. Eqbal, J)
Alankar/-