IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 36 of 2004
With
Second Appeal No. 35 of 2004.
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In Second Appeal No. 36 of 2004:
Parwesh Sahi and others ... ... ... ... ... Appellants
Versus
Gango Devi and others ... ... ... ... ... Respondents
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In Second Appeal No. 35 of 2004:
Basant Prasad ... ... ... ... ... ... Appellant
Versus
Dilip Kumar Gupta ... ... ... ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE RAMESH KUMAR MERATHIA
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For the Appellants : M/s. R.K. Choudhary and T.N. Jha, Advocate.
For the Respondents: M/s. K.M. Verma, M.M. Sharma, Lakhan Sharma
and Lalan Kumar Singh, Advocate.
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7. 17. 3. 2009. S.A. No. 36 of 2004:
Mr. R.K. Choudhary, learned counsel appearing on behalf of the
appellants, submitted that against the judgment and decree dated
7.10.1996
passed by the learned Sub Judge, Latehar in Partition Suit No. 36
of 1988, the defendants-appellants filed Partition Appeal No. 9 of 2002
which was dismissed by the judgment and decree dated 14.11.2003 passed
by the Additional District Judge (F.T.C.) Latehar. He submitted that the
appellants have no grievance so far as the decree of partition of half share
each in the suit property is concerned, but the Takhta prepared by the
earlier Pleader Commissioner was given a go by only on the purported
objection filed on behalf of the plaintiffs-respondents, and that too,
without giving opportunity to the defendants-appellants. He further
submitted that the finding of the learned lower appellate court in
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paragraph 17 of the judgment is perverse. He referred to the lower court
records to show that the acknowledgement sent by Shri Harihar Dubey,
Amin Commissioner, did not bear the signature of Bali Shashi-appellant
no. 3. He further submitted that the lawyer concerned did not inform the
appellants about the order sheets shown to him.
2. Mr. K. M. Verma, learned counsel appearing for the respondents, on
the other hand supported the finding recorded in paragraph 17 of the
judgment of the lower appellate court and submitted that inspite of
sufficient opportunity, the appellants did not raise any objection for
preparation of Takhta by the Amin Commissioner Shri Harihar Dubey.
3. In the facts and circumstances of the case and in the interest of
justice, in my opinion, the parties should be given opportunity of hearing
on Takhtabandi report submitted by Shri Harihar Dubey, Amin
Commissioner. The parties will file their pleadings, in support of, or
objections, to the said report, before the lower appellate court, within four
weeks from today, which will be disposed of after giving opportunity of
hearing to them in accordance with law, as early as possible and preferably
within a period of three months thereafter. The parties will cooperate in
early disposal of the matter. It is made clear that this matter is being
remitted only for hearing on the said Takhtabandi, and not on the merits of
the judgments and decrees passed by the learned trial court and the lower
appellate court, regarding partition on merits.
4. Let the lower court records be sent back immediately to the lower
appellate court by special messenger, the cost of which will be deposited
by the appellants by 20th March, 2009. This order will be subject to deposit
of cost of Rs. 2,500.00 within four weeks in the lower appellate court which
the respondents-plaintiffs will be entitled to withdraw.
5. Second Appeal No. 35 of 2004: This appeal has been filed by Basant
Prasad, purchaser, from the defendants-appellants in Second Appeal No.
36 of 2004. Dilip Kumar Gupta, respondent in this appeal is the purchaser
of land from the plaintiffs-respondents in Second Appeal No. 36 of 2004.
Both are said to have purchased lands during the pendency of the main
Partition Suit No. 36 of 1988.
6. When this Court asked Mr. Choudhary and Mr. Verma, appearing
for the parties in this appeal, as to what will happen to such purchases,
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both the counsel agreed that such purchases will be subject to the
preliminary decree.
7. Accordingly, the said order passed in S.A. No. 36 of 2004 will govern
the parties in Second Appeal No. 35 of 2004 also, who are said to have
purchased land from the plaintiffs and the defendants of Partition Suit No.
36 of 1988, during the pendency of the partition suit, subject to the
respective shares of the parties in Partition Suit No. 36 of 1988, as per the
preliminary decree.
8. With these observations and directions, both the second appeals are
disposed of.
(R. K. Merathia, J)
AKS.Cp.2.