Dismissed

Ashok Kumari Alias Ghasin And Anr. v. Most Lalita Devi And Ors.

Jharkhand HC23 Sept 2024SA/666/2016

Case brief

AI extract

What is this about?

Defendants in a partition suit challenged the final decree prepared on a pleader commissioner's report, contending no opportunity to object and unequal allotment of valuable land. The High Court found they never objected despite opportunities, no perversity was shown, and dismissed the second appeal without costs.

What the court decided

AI extract

Ashok Kumari Alias Ghasin And Anr. Vs Most Lalita Devi And Ors. — Partition | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No.666 of 2016

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------

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Ashok Kumari @ Ghasin, wife of Chitrasen Parhi

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Chitrasen Parhi, son of late Govardhan Parhi Both residents of Bichagarha, P.O. & P.S.-Karra, Dist.-Khunti

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.... .... …. Appellants

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Versus

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Most. Lalita Devi, wife of late Bindeshwari Babu

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Om Prakash Mishra

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Jai Prakash Mishra

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Sl. No. 2 and 3 both sons of late Bindeshwari Babu. Sl. Nos. 1 to 3 are r/o Village-Bichagarha, P.O. & P.S.- Karra, Dist.-Khunti

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Sushma Devi, wife of Narayan Parhi, resident of Village-Birta, P.O. & P.S.-Torpa, Dist.-Khunti

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Smt. Anima Devi, wife of Vijay Panda, resident of Village-Tamar, P.O. & P.S.-Tamar, Dist.-Ranchi

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Smt. Aloka Devi, wife of Sushant Pari, daughter of late Bindeshwari , r/o Tola Purna Bazar, P.O. & P.S.-Chakradharpur, Dist.- West Singhbhum

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Smt. Achala Devi, wife of Rajni-Kant Mishra, resident of Koel Nagar, P.O., P.S. & Dist.-Rourkela, (Orissa)

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…. .... …. Respondents

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------ For the Appellants : Mr. Vishal Kr. Tiwary, Advocate For the Respondents : Mr. Praveen Akhouri, Advocate : Mr. Diva Kant Roy, Advocate

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PRESENT

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree passed in Partition Appeal No. 08 of 2011 arising out of Partition Suit No. 03 of 1988 dated 13.01.2016 passed by the learned District Judge-I, Khunti whereby and where under, the appeal was dismissed on contest without costs.

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The brief fact of the case is that a preliminary decree for partition was passed in Partition Suit No. 3 of 1988 by the learned Sub-Judge-I, Khunti and the same has attained finality and after

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Second Appeal No. 666 of 2016

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that a final decree proceeding was initiated and the final decree was prepared on the basis of the report of the pleader commissioner on 19.03.2009.

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It is pertinent to mention here that the undisputed fact remains that the appellants herein who were the appellants before the learned first appellate court and the defendants of the suit did not file any objection to the pleader commissioner report on the basis of which the final decree was prepared; though adequate opportunity for the same was given to them.

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Being aggrieved by the final decree prepared in the said Partition Suit No. 3 of 1988, the defendants-appellants filed Partition Appeal No.8 of 2011 in the court of Principal District Judge, Khunti which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

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The learned first appellate court on the basis of the materials in the record and submissions before it, formulated the following two points for determination:- :-

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“(i) Whether the Advocate Commissioner prepared his report without giving any opportunity of being heard to the appellants before the learned first appellate court who was the defendants in the trial court?

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(ii) Whether the Sub-Judge-I, Khunti confirmed the report submitted by the Advocate Commissioner without giving any opportunity of being heard to the appellants/defendants and prepared the final decree for which there is possibility of the appellants-defendants facing any financial crunch in their livelihood?”

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The learned first appellate court took up the points for determination together and after considering the materials in the record came to the conclusion that the Advocate Commissioner

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Second Appeal No. 666 of 2016

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informed the parties to the suit and prepared the half takhta of the suit land after reaching the suit land and also came to the conclusion that the contention of the appellant that the Advocate Commissioner did not give information to the defendants while carving out the takhtabandi is a false one. The learned first appellate court also considered that the learned trial court also gave opportunity to the appellants-defendants before acceptance of the report submitted by the Advocate Commissioner in carving out the takhta and did not find any merit and dismissed the same.

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It is submitted by the learned counsel for the appellants that both the courts below failed to consider that most valuable land has been allotted to the share of the plaintiffs whereas no corresponding adjacent has been done in the share of the defendants therefore, the acceptance of the Advocate Commissioner’s report is erroneous. Hence, it is submitted that the final decree prepared by the learned trial court be set aside after formulating appropriate substantial question of law.

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Learned counsel for the respondents on the other hand vehemently opposes the prayer made in this second appeal and submits that the appellants-defendants never filed any objection to the report submitted by the Advocate Commissioner and there is no illegality in the same. It is next submitted by the learned counsel for the respondents that takhta has been carved out in terms of the preliminary decree and only for the sake of lingering the litigation, this second appeal has been filed. Hence, it is submitted that there being no merit in this second appeal, the same

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Second Appeal No. 666 of 2016

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be dismissed.

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Having heard the submissions made at the Bar and after carefully going through the materials in the record, this Court finds that the undisputed fact remains that the defendants though were given several opportunities by the learned trial court but the defendants did not file any objection regarding the report of the Advocate Commissioner. There is no material in the record to suggest that the Advocate Commissioner even though gave notice to the defendants-appellants but they did not object to the takhtabandi being prepared by the Advocate Commissioner.

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Under such circumstances, the appellants-defendants having not raised any objection before the learned trial court at the time of acceptance of the report prepared by the Advocate Commissioner and no perversity having been made out by the judgment and decree passed by both the trial court and the learned first appellate court, this Court is of the considered view that there is no substantial question of law involved in this appeal.

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Accordingly, this second appeal being without any merit is dismissed but under the circumstances without any costs.

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Let the copy of the Judgment be sent to the learned court below forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 23^rd September, 2024 AFR/ Sonu-Gunjan/-

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Second Appeal No. 666 of 2016

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Ashok Kumari Alias Ghasin And Anr. v. Most Lalita Devi And Ors.

Case brief

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What the court decided

Ashok Kumari Alias Ghasin And Anr. v. Most Lalita Devi And Ors.

Case brief

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