IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.70 of 2010
NIRMALA DEVI .
Versus
BACHANI DEVI & ORS. .
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06. 30.09.2010 (1) Heard Mr. Dhrub Narayan Singh, learned
senior counsel on behalf of the appellant and Mr. Jai
Prakash Singh, the learned counsel appearing on behalf of
the respondent in I.A. No. 6246 of 2010.
(2) This is an application under Section 151
C.P.C., filed by the appellant praying therein to stay further
proceeding of title suit no. 326 of 2006 pending in the
Court of Sub Judge I, Rohtas at Sasaram for preparation of
final decree.
(3) The learned senior counsel, Mr. Dhrub
Narayan Singh appearing on behalf of the appellant
submitted that in fact, there had already been a
compromise decree with regard to subject matter of the
present suit and unless that compromise decree is set
aside, no decree for partition would have been granted by
the Court below at the instance of the respondent no. 1,
Bachani Devi, who was not a party to the said compromise
decree. According to the learned counsel, her father died
prior to 1956 and therefore, she had no title to the
property. So, without making her party in the earlier suit
i.e. partition suit no. 73 of 1974, the parties concerned
compromised and divided the property amongst
themselves. The learned counsel further submitted that in
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that suit, in fact, she applied for being added as party but
the prayer was refused and moreover, according to the
appellant, she was not the daughter of Vishwanath Singh,
who died issueless in the year 1939-1940, as a result of
which, his share devolved on his brothers on the principles
of survivorship. Therefore, four brothers of Vishwanath
Singh compromised. The present suit was filed by Bachani
Devi claiming herself to be the daughter of Vishwanath and
the Court below has decreed the partition suit granting
decree to the extent of 1/5th share. The learned counsel
further submitted that the learned Court below has
decreed the suit ex-parte. On these grounds, the learned
counsel submitted that the final decree proceeding may be
stayed.
(4) On the other hand, the learned counsel for the
plaintiff-respondent submitted that the husband of the
present appellant had filed a written statement in the
present partition suit admitting the plaintiff to be the
daughter of Vishwanath and also admitting the fact that
Vishwanath died in December 1956. After his death, the
present appellant and her minor sons were substituted and
notices were served on them. Therefore, the submission of
the learned counsel for the appellant that the suit was
decided ex-parte has got no substance and moreover, if, in
fact, it is ex-parte, then, the appellant should have applied
in the Court below for setting aside the ex-parte decree.
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The learned counsel further submitted that the appellant
cannot be allowed to take a different stand then, the
original defendant who had filed written statement
supporting the plaintiff’s case. The learned counsel further
submitted that the other respondents have got no
grievance and therefore, they have not challenged the
decree.
(5) The learned counsel submitted that final
decree is appealable and therefore, this is not the practice
of this High Court to stay final decree proceeding.
(6) It appears that the respondent no. 1 filed the
aforesaid partition suit claiming 1/5th share in the suit
property on the ground that she is daughter of Vishwanath,
who died in jointness. According to her, the defendants
without the knowledge of the plaintiff, filed partition suit
and obtained a collusive compromise decree only to
deprive the plaintiff, therefore, the compromise decree is a
nullity and is not binding on the plaintiff, respondent no. 1.
The learned Court below has decreed the said suit and final
decree proceeding is going on for carving out 1/5th share of
the plaintiff. From perusal of the impugned judgment, it
appears that the husband of the appellant also filed a
written statement supporting the plaintiff’s case.
Moreover, the suit properties are agricultural lands. It is
not the practice of Patna High Court to stay the further
proceeding for preparation of final decree. Final decree is
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also appealable. The finding of the Court below is that
plaintiff has got unity of title and possession. In view of
this finding, now, she has 1/5th share in the suit property.
Now, therefore, for the ends of justice, it will not be proper
to stay further proceeding in the Court below for
preparation of final decree.
(7) Accordingly, I am not inclined to stay further
proceeding in title suit no. 326 of 2006 pending in the
Court of Sub Judge I, Rohtas at Sasaram for preparation of
final decree. Accordingly, the I.A. No. 6246 of 2010 is
rejected.
Saurabh ( Mungeshwar Sahoo, J.)