Mewalal Choudhary Vs Rajkishore Choudhary

2025:JHHC:11452

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 62 of 2023

Rajkishore Choudhary, aged about 33 years, Son of Late Deocharan Choudhary, Resident of Budhar Khukhera, P.O. & P.S.Ramgarh, Dist.- Ramgarh represented through General Power of Attorney Holder Bhupnath Mahto, aged about 65 years, Son of Late Khedu Mahto, P.O.- Gosa, P.S. & Dist.- Ramgarh.

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… … Defendant No. 16/Respondent/Appellant Versus

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Mewalal Choudhary,

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Girdhari Choudhary,

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Sewalal Choudhary All sons of Late Magor Choudhary, Resident of Village- Kaitha, P.O. & P.S- Ramgarh, Dist.- Ramgarh

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… … Plaintiffs/Appellants/Respondents

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With

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S.A. No. 99 of 2023

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Mewalal Choudhary, aged about 76 years.

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Girdhari Choudhary, aged about 74 years.

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Sewalal Choudhary, aged about 68 years. All sons of Late Magor Choudhary, resident of Village- Kaitha, P.O. & P.S.- Ramgarh, District- Ramgarh, Jharkhand.

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… … Plaintiffs/Appellants/Respondents Versus

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Rajkishore Choudhary, son of Late Deocharan Choudhary, resident of Budhar Khukhera, P.S.- Ramgarh, District- Ramgarh, Jharkhand. … … Defendants/Respondents/Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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In S.A. No. 62 of 2023

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For the Appellant : Mr. Kumar Harsh, Advocate : Ms. Khushboo Kumari, Advocate : Mr. Tejaswa Mohanta, Advocate For the Respondents : Mr. Ayush Aditya, Advocate : Mr. Alisha Lakra, Advocate In S.A. No. 99 of 2023 For the Appellants : Mr. Ayush Aditya, Advocate : Mr. Alisha Lakra, Advocate For the Respondent : Mr. Kumar Harsh, Advocate : Ms. Khushboo Kumari, Advocate : Mr. Tejaswa Mohanta, Advocate

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1. Both the appeals arise out of the same judgement and final decree dated 17.03.2023 (Decree signed on 31.03.2023) passed in Civil Appeal No. 7 of 2022 filed under section 96/97 of CPC read with order XLI of CPC by learned Principal District Judge, Ramgarh whereby the appeal has been allowed against the final decree/order dated 01.02.2022 passed by learned Civil Judge (Senior Division)-I, Ramgarh in Partition Suit Number 52 of 1970 and the matter has been remanded by passing the following order: -

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“That the instant Civil Appeal no. 7 of 2022 arising of impugned order dated-01.02.2022 passed by Civil Judge (Sr. Div.)– I, Ramgarh in Partition Suit No 52/1970 is allowed on contest. The lower court order dated-01.02.2022 is set aside and the matter is remanded to the court below. The court below is directed to get prepare a fresh report by appointing Survey Knowing Pleader Commissioner in the light of entitlement of defendant no.16 declared by the Hon’ble High Court, which is 1/4 share in the half share of the schedule suit property declared by the judgment dt. 317-1975 in favour of plaintiffs together with defendant no. 16. It is needless to add that the Survey Knowing Pleader Commissioner would consider the fact of any transfer if any by the plaintiffs or defendant no.16 or receiving of any compensation by any of the parties of present appeal on account of land acquisition if any, as this point was also canvassed during hearing of the present appeal.”

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2. The Civil Appeal No. 07 of 2022 was filed against the final decree/order dated 01.02.2022 passed by the learned Civil Judge (Senior Division)-I, Ramgarh in Partition Suit No. 52 of 1970, whereby the report dated 07.03.2019 carving out separate Takhtabandi by Survey Knowing Pleader Commissioner has been accepted in the final decree proceeding.

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3. Mr. Rajkishore Choudhary, who is appellant in Second Appeal No. 62 of 2023 and is the sole respondent in Second Appeal No. 99 of 2023 is being represented by Mr. Kumar Harsh, Advocate.

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4. So far as respondents in Second Appeal No. 62 of 2023 and appellants in Second Appeal No. 99 of 2023 are concerned they are being represented by Mr. Ayush Aditya, Advocate.

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5. Mr. Rajkishore Choudhary was admittedly the only son of defendant No. 16 and was numbered as defendant No. 16(1). 6. The Second Appeal No. 62 of 2023 filed by the defendant no.16(1) has been admitted vide order dated 22.07.2024 to be finally heard on following substantial question of law: -

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“Whether the learned first appellate court committed a perversity by holding that the defendant No.16 will be entitled to one-fourth of the half share of the suit property schedule i.e. one-eighth share of the entire suit property instead of onefourth share of the entire suit property, as has been held by the trial court?”

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7. So far as Second Appeal No. 99 of 2023 is concerned, the same has been filed by the original plaintiffs of the suit with a direction to prepare a fresh report by appointing a Survey Knowing Pleader Commissioner in the light of entitlement of defendant No. 16 said to have been declared by the High Court amounting to 1/4^th share in the half share of the schedule property declared vide judgment dated 31.07.1975 in favour of the plaintiffs together with defendant No. 16. 8. It has been submitted by the learned counsel for the parties that vide report dated 07.03.2019 the Survey Knowing Pleader Commissioner had allocated half-half share to defendant No. 16 on one hand and the plaintiffs on the other. 9. Second Appeal No. 99 of 2023 was admitted for final hearing vide order dated 19.02.2025 to be heard on following substantial question of law: -

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“I. Whether the Court becomes functus officio after preparation of Final Decree and therefore, registering an application filed by the defendant no. 16 in the year 2011 was itself beyond jurisdiction and the entire proceeding thereafter is without jurisdiction and is liable to be set aside?

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III. Whether without setting aside of final decree dated 30.07.2010 by any higher Court, a fresh final decree could have been prepared?”

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10. While giving the factual background of the case, both the counsels have referred to the genealogy in a tabular chart produced before this Court. The genealogy is not in dispute. The summary is as follows: -

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a. It is not in dispute that the suit property originally belonged to Besram Choudhary who had two sons Khedu Choudhary and Mani Choudhary. The defendant No. 1 to 10 were descendants to Khedu Choudhary and so far as their half share of the suit property is concerned there is no dispute. The dispute is only in the branch of Mani Choudhary.

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b. Mani Choudhary had four sons, namely, Dukhi Choudhary, represented by defendant No. 16 to 18; Acha Choudhary , represented by defendant No. 11 to 15; Gulu Choudhary represented by defendant No. 19 to 24 and Fulu Choudhary represented by the plaintiffs in the suit.

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11. It is further not in dispute that so far as defendant No. 11 to 15 representing the branch of Acha Choudhary and defendant No. 19 to 24 representing the branch of Gulu Choudhary filed their written statements but did not stake any claim with respect to the properties involved in the present case and consequently, the defendant No. 11 to 15 and 19 to 24 did not contest the suit.

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12. So far as the branch of Dukhi Choudhary is concerned, he had one son namely Kitika Choudhary and Kitika Choudhary had three sons Debcharan Choudhary, Rameshwar Choudhary and Teklal Choudhary who were defendant No. 16, 17 and 18 respectively and the descendants of defendant No. 17 and 18 also did not contest the suit on the ground that they have got the properties at other locations. The suit was contested only by defendant No. 16 and upon his death by his son defendant No. 16(1) [the appellant in Second Appeal No. 62 of 2023 and sole respondent in Second Appeal No. 99 of 2023] .

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13. The contesting parties in the present case are Raj Kishore Choudhary [defendant No. 16(1)] and the descendants of Fulu

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Choudhary, who were the plaintiffs in the suit. There is no further dispute amongst the other defendants inter-se or with the defendant No. 16(1) or with the plaintiffs.

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14. The aforesaid facts are not disputed by the learned counsels of both the parties.

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15. It is further not in dispute that the present proceedings arise from Partition Suit No. 52 of 1970-74 decided on 31^st July, 1975 in which the plaintiffs [the descendants of Fulu Choudhary s/o Mani Choudhary] claimed 8 annas (50%) share in the suit property. The suit was instituted on 21^st March, 1970 and the plaintiffs of the suit were entitled to their shares in the suit property to the extent of 8 annas along with the defendant No. 16(1) as the defendant No. 11 to 15 and 19 to 24 had filed their written statement supporting the case of the plaintiffs and thereby they relinquished their right, title and interest and possession over the suit property and further defendant No. 17 and 18 also did not contest the suit. The finding of the learned trial court with respect to share of the suit properties has been given in paragraph 37 of the Judgment which is quoted as under:-

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“37. Issue No. 6:- Now the next point that arise for determination is as to whether the plaintiffs are entitled for half share in the suit properties as claimed by them or not. Admittedly Besram Choudhary had two sons namely Mani Choudhary and Kehdu Choudhary and the plaintiffs are of the branch of Mani Choudhary and the contesting defendant Nos. 1 to 4 are of the branch of Khedu Choudhary. Mani Chouhdary had four sons Achha, Dukhi, Fulu and Gulu. Defendant Nos. 11 to 14 and defendant No. 19 to 24 are the descendants and heirs of Accha and Dukhi Choudhary. It has been well established from the evidence of the plaintiffs and it has also been admitted by the D.W. that these defendants have settled in village Bhurhkhukhra and the lands of Burhkhukhura have been recorded exclusively in their names. Defendant No. 11 to 14 and 19 to 24 have filed their written statements supporting the case of the plaintiffs and thereby relinquished their right, title, interest and possession over the suit lands which is against their own interest. No one of them turned up to support their written statement no doubt but by keeping silent it will have to presume that they do not want to contest the claim of the plaintiffs. D.W. No. 17, defendant No. 16 has filed separate written statement and has practically

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supported the case of the contesting defendants 1 to 4 in every respect stating that their has been previous partition amongst the parties with respect to the suit land and hence there is no necessity of partition and the suit may be dismissed. He has not claimed his share in the suit land in his written statement but it is admitted fact that he happens to be the son of Dukhi Choudhary and the grand son of Mani Choudhary. It has also been established that Achha Choudhary and Dukhi Choudhary have settled in village Burhkhukhra and the lands of Burhkhukhra have been recorded exclusive in their names and the heirs of Achha Choudhary and the other sons of Dukhi Choudhary namely Rameshwar, Teklal and Parasnath who have been represented through their mother natural guardian defendant No. 11, have together with the descendants of Achha Choudhary accepted the claim of the plaintiffs and they have relinquished their right, title, interest and possession over the suit lands. Defendants No. 16 being the descendants of Dukhi Choudhary and the grand son of Mani Choudhary has no right, title, interest, possession and share in the suit lands. The suit lands being his ancestral properties, irrespective of the fact that he has settled down in village Burkhhukhra as he has not relinquished his right, title, interest, share and possession over the suit lands unlike the other defendant Nos. 11 to 15 and 18, 17 and 19 to 24. He cannot debarred from his share in the suit land as the suit land is his ancestral land and as has already been held above, the possession of one of the co-sharers will be deemed to be the possession of all the co-sharers under the law irrespective of the fact that he has settled down in another village Burhkhukhra. In this view of the fact and the discussions above, I am inclined to hold that defendant Nos. 1 to 4 the descendants of Khedu Choudhary have got 8 annas share in the suit property and the plaintiffs together with defendant No. 16 being the descendants of the branch of Mani Choudhary have got together 8 annas share in the suit property. This issue is answered accordingly. ” (emphasis supplied)

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16. Perusal of the aforesaid paragraph reveal that the descendants of Khedu Choudhary were given 8 annas and the plaintiffs together with defendant No. 16(1) were given 8 annas of the suit properties. The perusal of the judgment passed by the learned trial court dated 31^st July, 1975 does not reveal that any share of the suit property was divided amongst the plaintiffs and the defendant No. 16(1) who were descendants of Mani Choudhary (brother of Khedu Choudhary). This

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aspect of the matter is also not in dispute during the course of argument. The learned counsel appearing on behalf of Rajkishore Choudhary, upon repeated queries by this Court, has not been able to point out any finding in the trial court’s judgment which earmarked any division or share amongst the plaintiffs and the defendant No. 16(1).

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17. However, while referring to the substantial question of law framed by this Court vide order dated 22.07.2024 in S.A. No.62 of 2023, the learned counsel appearing on behalf of Rajkishore Choudhary [appellant in Second Appeal No. 62 of 2023] has vehemently submitted that the suit continues till the final decree is prepared by the court and therefore, the defendant No. 16(1), who is appellant in Second Appeal No. 62 of 2023, was entitled for his share. He has submitted that considering the genealogy of descendants of Mani Choudhary, who had four sons, and descendants of two sons of Mani Choudhary, having relinquished their claim, the descendants of Dukhi Choudhary [represented by Rajkishore Choudhary-defendant no.16(1)] was entitled to ½ share of the ½ share allocated to the Mani Choudhary and therefore, the defendant No. 16(1) and the plaintiffs as a whole, were entitled to half share each.

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18. He has further given the list of dates and has submitted that the preliminary decree was prepared on 31^st July, 1975 and prior to preparation of final decree Mewalal Choudhary representing the plaintiffs had field the Writ Petition being W.P.(C) No 5074 of 2007 but the said writ petition was dismissed vide order dated 01.11.2007 with an observation that the writ petitioner, namely, Mewalal Choudhary, was at liberty to raise objection after the Pleader Commissioner’s report is submitted. He has further submitted that the Pleader Commissioner’s Report was submitted on 06.03.2008 and a tentative final decree was drawn on 11.05.2009 in which an objection was filed on behalf of defendant No. 16 to 18 which was rejected and the report of the Pleader Commissioner was confirmed with

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modification to the extent that the name of defendant No. 17 and 18 be deleted and thereafter the final decree was prepared on 26.02.2010.

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19. He has submitted that in the meantime Rajkishore Choudhary representing defendant No. 16 had also filed a writ petition No. 3017 of 2009 but on account of preparation of final decree, the writ petition was dismissed as withdrawn on 01.04.2010. However, the decree was modified on 30.07.2010 on account of certain clerical mistakes.

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20. He has also submitted that Rajkishore Choudhary had filed Title Appeal No. 31 of 2010 against the final decree however, the same was withdrawn vide order dated 20.04.2011.

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21. In the meantime, Rajkishore Choudhary filed an application dated 29.03.2011 seeking appointment of Pleader Commissioner for allotment and Takhtabandi of 4 annas share of schedule A land for the purposes of a separate final decree and the same was filed by one Bhup Nath Mahto who was the power of attorney of defendant No. 16(1).

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The objection filed by Mewalal Choudhary and others representing the plaintiffs was rejected vide order dated 17.12.2013 and the matter was posted for determination of share of defendant No. 16 to 18 in-spite of the fact that defendant No. 17 and 18 were already deleted. However, against the order dated 17.12.2013 Mewalal Choudhary and other representing the plaintiffs filled a writ petition being W.P.(C) No. 1052 of 2014 and the said writ petition was allowed with a direction to the executing court to appoint a Survey Knowing Pleader Commissioner within one month for allocation of separate Takhta for the parties. The order of the writ petition is dated 22.11.2018 and ultimately survey report was filed on 07.03.2019 and final decree was prepared on 01.02.2022 in which land allocated to the plaintiffs has been shown in red colour and the property allocated to the defendant No. 16 (1) has been shown in green colour and the Commissioner had divided the property half and half between the plaintiffs and the defendant No. 16(1) respectively. The report submitted by the Commissioner was accepted and confirmed and the proceeding was

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disposed of. However, Mewalal Chaudhary and others representing the plaintiffs being aggrieved by the order dated 01.02.2022 preparation of Final Decree filed an appeal under section 96/97 read with Order XLI of the CPC which was numbered as Civil Appeal No. 07 of 2022 and the said appeal was allowed on contest and the matter was remanded to the trial court with a direction to prepare a fresh report by appointing a Survey Knowing Pleader Commissioner in the light of entitlement of defendant No. 16(1) by observing that the High Court had declared the share of defendant No. 16(1) which was 1/4^th share of the schedule property declared by judgment dated 31.07.1975 in favour of the plaintiffs together with defendant No. 16.

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The learned counsel for the appellant representing defendant No. 16(1) and appellant in Second Appeal No. 62 of 2023 has submitted that the defendant No. 16(1) [the sole descendants of defendant No.16] was entitled to half share to the schedule property declared in the judgment dated 31.07.1975 and was not entitled to only 1/4^th share of the half share and therefore, the present appeal has been filed against the order of remand. During the course of hearing, he has submitted that even if the judgment dated 31.07.1975 passed in the title suit did not earmark the definite share of defendant No. 16(1) and only declared that plaintiffs along with defendant No. 16(1) would be entitled to the half share of the suit property still it was open to prepare final decree fixing the specific share of defendant No. 16 visa-vis the plaintiffs of the case. He has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Shub Karan Bubna Alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and others reported in (2009) 9 SCC 689 paragraph 20 and 21 to submit that in a partition suit the preliminary decree only decides a part of the suit and therefore an application for passing final decree is only an application in a pending suit seeking further progress and in a partition suit there can be preliminary decree followed by a final decree or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be

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taken by the court. He has further submitted that a decree in partition suit ensures to the benefit to all the co-owners, and in a partition suit there is no judgment-debtor as such. A preliminary decree for partition only identified the properties to be subject matter of partition and defines and declares the shares and rights and the partition has to take place by meets and bounds at the time of preparation of final decree. 22. Paragraph 20 and 21 of the aforesaid judgment is quoted as under:-

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“20. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the coowners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.

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21. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds.”

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23. He has further relied upon the judgment passed by the Hon’ble Supreme Court in the case of Shankar Balwant Lokhande (Dead) by LRS. vs. Chandrakant Shankar Lokhande and Another reported in (1995) 3 SCC 413 paragraph 7 and 8 to submit that in the said case preliminary decree is a declaration of the right of parties with a charge on the property to be allotted and a Commissioner is required to be appointed for partition of certain specified properties and it has been held that more than one final decree can be passed and with the passing of the final decree in respect of share of one or the other respondents the right of the properties in respect of other properties

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does not get crystalized unless there is a division of property by meets and bounds and it was held that the final decree made in favour of first respondent in the said case was only passing to the extent of 1/6^th right without any demarcation or division of properties. The learned counsel has submitted that in view of the aforesaid judgment merely because defendant No. 16(1) along with plaintiffs were entitled to the half share of the half share of the property allocated to the branch of Mani Choudhary it was still open to the court to allocate specific share to the defendant No. 16 (1) while passing the final decree in the case. He has also relied upon the judgment passed by the Hon’ble Supreme Court in the case of S. Sai Reddy vs. S. Narayana Reddy and others reported in (1991) 3 SCC 647 and has submitted that in the said case at the stage of trial no share was allocated to the daughters and in the meantime Hindu Succession Act 1956 was amended and the Hon’ble Supreme Court considered the question as to whether the preliminary decree had the effect of depriving the daughters of the benefit of the amendment of Hindu Succession Act and ultimately it was held that only a preliminary decree had been passed and before the final decree could be passed the share could still be varied and allocated to the daughters of the family on account of amendment to the Hindu Succession Act. He has submitted that similarly in the present case merely because the final judgment has not allocated any definite share to defendant No. 16(1), still at the stage of preparation of final decree the share could be earmarked and definite share could be allocated to defendant No. 16(1) on one hand the plaintiffs on the other.

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24. The learned counsel has also relied upon the judgment passed by the Hon’ble Patna High Court reported in 1961 SCC OnLine Pat 43 and has submitted that the execution could not proceed unless decree was amended inasmuch as it was not prepared in accordance with the judgment and the amount of cost payable by the plaintiff to the appellants of the said case was paid the court could not proceed, was rejected.

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25. The learned counsel has finally submitted that the impugned judgment passed by the learned 1^st appellate court giving only 1/4^th of the half share to the defendant No. 16(1) is perverse and is fit to be set aside and it be declared that defendant No. 16(1) would be entitled to half share of the half share to the schedule property.

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Arguments of Respondents.

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26. The learned counsel for the respondents in Second Appeal No. 62 of 2023 has representing the plaintiffs has opposed the prayer and has submitted that while formulating the substantial question of law, it was submitted that as per the trial court judgment, the definite share was allocated to defendant No. 16(1) but no such definite share was allocated to defendant No. 16(1) and what was allocated to defendant No. 16(1) was jointly with that of the plaintiffs. The learned counsel has submitted that in such circumstances all the proceedings which had taken place for the purposes of allocation of definite share to defendant No. 16(1) are not in accordance with law and the final decree would have been prepared with respect to allocation of share to defendant No. 16(1) along with that of the plaintiffs and no separate share could have been allocated to defendant No. 16(1). He has also submitted that the defendant No. 16(1) had filed an appeal against the judgment passed by the trial court but ultimately it was withdrawn on 20.04.2011 and therefore, the judgment had attained finality and the present appeal which has been filed by the appellant on Second Appeal 62 of 2023 is against the final decree unless the preliminary decree was modified by the learned 1^st appellate court no separate allocation to defendant No. 16(1) could have been made.

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27. The learned counsel while referring to Section 97 of the CPC has submitted that there is a clear mandate that if the appeal is not filed against the preliminary decree the party cannot challenge the preparation of final decree which has been based on preliminary decree. The party cannot challenge the correctness of preliminary decree in an appeal arising out of final decree.

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28. The learned counsel has further submitted that the plaintiffs have also filed a separate appeal being Second Appeal No. 99 of 2023 against the same judgment and in the said case two substantial question of law have been framed. He has submitted that the final decree arising out of the suit was prepared on 26.02.2010 and there was no challenge to the final decree which attained finality. However, after the preparation of final decree dated 26.02.2010 though it was modified on 30.07.2010, applications were sought to be filed by Rajkishore Choudhary before the court seeking appointment of Pleader Commissioner for carving out his separate share which has ultimately lead to passing of the present impugned order.

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29. The learned counsel has also submitted that in the final decree prepared on 26.02.2010 which was modified on account of clerical mistake on 30.07.2010 the share earmarked with respect to the suit property was in accordance with the judgment passed in the title suit i.e. half share to the branch of Khedu Choudhary and half share to the plaintiffs and defendant No. 16(1) belonging to the branch of Mani Choudhary . The learned counsel has relied upon the judgment passed by Hon’ble Supreme Court in the case of Ganduri Koteshwaramma and Another vs. Chakiri Yanadi and Another reported in (2011) 9 SCC 788 paragraph 14 to submit that a preliminary decree determines the rights and interest of the parties and the partition suit is not disposed of by passing the preliminary decree unless the final decree is prepared by partition through meets and bounds. However, after passing of the preliminary decree the suit continues until the final decree is passed and if in the meantime there are certain developments, the same can be taken care of by the court on account of change in situation.

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30. The learned counsel has submitted that in the present case the final decree was ultimately prepared on 26.02.2010 with certain modification on 30.07.2010 and therefore after preparation of final decree there was no occasion to further proceed for preparation of final decree. He submits that once the final decree is prepared the

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court becomes functus officio and on account of the impugned proceeding there are parallel final decrees, one is final decree prepared on 26.02.2010 read with its amendment on 30.07.2010 and other is the impugned judgment and proceedings. The learned counsel has submitted that after the preparation of final decree way back in the year 2010, registering of an application filed by defendant No. 16(1) in the year 2011 was itself beyond jurisdiction and without there being any challenge to the final decree dated 26.02.2010 with modification on 30.07.2010, no fresh final decree can be prepared. He has submitted that both the orders passed by the learned court i.e. order dated 01.02.2022 passed by the learned trial court by which the Pleader Commissioner’s report was accepted allocating half share to defendant No. 16(1) on one hand and half to the plaintiffs at the other and also the order passed by the learned 1^st appellate court challenging the final decree by which the share of the defendant No. 16(1) has been reduced to 1/4^th of half share are not sustainable and if the substantial question of law in Second Appeal No. 99 of 2023 are answered in favour of the plaintiffs then both the orders are fit to be set aside as there was no need for any further exercise of appointment of pleader commissioner and earmarking any share as the final decree had already attained finality way back in the year 2010 and the appeal against the final decree which was filed by defendant No. 16(1) was also withdrawn.

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Findings of this Court.

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31. After hearing the learned counsels appearing on behalf of the parties and considering the materials placed on record, this Court finds that it is not in dispute that in the title suit, the plaintiffs and defendant No. 16(1) together were allocated half share of the suit property. It is further not in dispute that there was no further division of share in the judgment with respect to each of the plaintiffs and defendant No. 16(1). It is further not in dispute that the final decree was prepared on 26.02.2010 and was modified on account of clerical mistakes on 30.07.2010 and the final decree dated 30.07.2010 was challenged by

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the defendant No. 16(1) in Title Appeal No. 31 of 2010 which was dismissed as withdrawn on 20.04.2011.

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32. Thus, this Court finds that the allocation of share to defendant No. 16(1) along with the plaintiffs to the extent of entire half share of the suit property which stood allocated to the branch of Mani Choudhary became final and the final decree was also drawn in accordance with the judgment passed in the trial court.

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33. However, it appears that the defendant No. 16(1) was insisting on separate allocation so far as his share is concerned and consequently, he had filed a petition dated 29.03.2011 for appointment of Pleader Commissioner for allocation of share to the extent of 4 annas of the schedule A property which would amount to half share of the half share allocated to the branch of Mani Choudhary. This petition was filed in-spite of the fact that as per the judgment passed by the learned trial court there was no such indication that defendant No. 16(1) would be entitled to half share of the half share allocated to the branch of Mani Choudhary and the trial court held that defendant No. 16(1) along with the plaintiffs would be entitled to half share of the suit property i.e. 8 Annas.

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34. Pursuant to the aforesaid application dated 29.03.2011 an objection was also filed from the side of the plaintiffs which was rejected vide order dated 17.12.2013 and the matter was posted for allocation of share of defendant No. 16 to 18.

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35. Against the said order dated 17.12.2013 the plaintiffs had filed a writ petition being W.P.(C) 1052 of 2014 which was allowed in terms of the order dated 22.11.2018. The said order dated 22.11.2018 has been placed by the learned counsel for both the parties and the operative portion of judgment in the trial court was quoted in the order and the impugned order dated 17.12.2013 was modified to the extent that the defendant No. 16(1) was entitled for his share along with the plaintiffs in the suit schedule properties.

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36. Paragraph 7 to 9 of the said order dated 22.11.2018 passed in writ proceedings being W.P.(C) No. 1052 of 2014 is quoted as under:-

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“7. The suit was decreed partly to the above extent. From the judgment and decree prepared in Partition Suit No.52 of 1970/74, it is abundantly clear that the defendant no.16 has been found entitled together with the plaintiffs to the extent of half share in schedule-A properties. Now, in so far as defendant no.17 and 18 are concerned, the judgment and decree in the partition suit has attained finality on dismissal of First Appeal No.480 of 1975(R) and Title Appeal No.31 of 2010 has been dismissed as withdrawn and, therefore, the defendant nos. 17 and 18 now cannot lay a claim for their share in schedule-A properties. Liberty granted to the defendant nos.16, 17 and 18 by the writ Court vide order dated 01.11.2007 to raise objection would not alter the aforesaid position in law. The executing court, which has elaborately dealt with every aspect of the matter in its order dated 17.12.2013, however, has erred in law in still leaving the matter wide open. By now it is well accepted that a final decree proceeding must be concluded expeditiously so that a decree-holder is not deprived of the fruits of decree for decades together [refer, “Satyawati vs. Rajinder Singh & Anr.”- (2013) 9 SCC 491].

¶109

8. Accordingly, the impugned order dated 17.12.2013 is modified to the extent that the defendant no.16 is entitled for his share alongwith the plaintiffs in the suit schedule properties. The learned counsel for the respondents submits that the defendant no.16, who along with the plaintiffs has been held entitled for half share in the schedule-A properties, is entitled for 1/4th share in half of the schedule-A properties.

¶110

9. The writ petition stands allowed in the aforesaid terms, with a direction to the executing court to appoint a Survey Knowing Pleader Commissioner within one month for allocating separate Takta for the parties.”

¶111

37. In the paragraph 8 of the order dated 22.11.2018 passed in W.P.(C) No. 1052 of 2014, whereby the order dated 17.12.2013 stood modified holding that the defendant No. 16 would be entitled for his share along with the plaintiffs in the suit property, the argument of the learned counsel for the respondents, who was representing the respondent No. 16(1) was also recorded, who had submitted that defendant No. 16(1) would be entitled to 1/4^th share in half of the schedule properties.

¶112

16

¶113

2025:JHHC:11452

¶114

38. It is apparent that in the writ proceedings, it was not brought to the notice of this Court that final decree earmarking half share of defendant No. 16(1) along with the plaintiffs was already prepared vide final decree dated 26.02.2010 read with its amendment on 30.07.2010 which had attained finality. On account of this, it appears that the writ court while modifying the order dated 17.12.2013 to the extent that defendant No. 16 would be entitled for his share along with the plaintiffs in the suit schedule properties directed the executing court to appoint a Survey Knowing Pleader Commissioner within one month for allocating a separate Takhta for the parties.

¶115

39. After the order dated 22.11.2018 passed in W.P.(C) No. 1052 of 2014 a Survey Knowing Pleader Commissioner was appointed on 01.02.2019 and the Survey Knowing Pleader Commissioner report was submitted and the defendant no. 16(1) filed a petition dated 24.04.2019 before the executing court with a prayer for accepting a report of Survey Knowing Pleader Commissioner dated 12.03.2019. Ultimately the executing court passed the order dated 01.02.2022 titled as Partition Suit No. 52 of 1970 (Final Decree Proceeding) and recorded that vide order dated 23.01.2019 the Survey Knowing Pleader Commissioner was appointed on the cost at the defendant No. 16(1) and on perusal of the order dated 23.01.2019 passed by learned Court of Senior Civil Judge-II Ramgarh, it appeared that an order dated 22.11.2018 was passed in W.P.(C) No. 1052 of 2014 whereby a direction was given to the executing court to appoint a Survey Knowing Pleader Commissioner for allocation separate Takhata for the parties and in the light of the order passed by the writ court, the Survey Knowing Pleader Commissioner was appointed on 01.02.2019 and the Survey Knowing Pleader Commissioner report was submitted on 07.03.2019 pursuant to the direction issued by the writ court. The content of the report of the Survey Knowing Pleader Commissioner with respect to the share of defendant No. 16(1) has been mentioned in the order dated 01.02.2022, which is quoted as follows: -

¶116

17

¶117

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¶118

“01.02.2022……………………………………………………… ………………………….. In compliance of the order of the court, the report of the survey knowing pleader commissioner was submitted on 07.03.2019. The commissioner also states in his report that in light of the Hon’ble Court direction dated 22.11.2018 passed in W.P.C. No. 1052/2014 he has prepared the report. The concluding para of the order passed by the then court dated 23.01.2019 “the Hon’ble Court held that defendant No. 16 is entitled along with plaintiffs in the schedule properties. So far share of defendant No. 16 is concerned the learned counsel for the defendants submitted that defendant No. 16 is entitled for 1/4^th share in half-half share in schedule A properties”. This is also admitted by plaintiffs in his petition dated 05.01.2019 filed before this court by which the plaintiffs want to file review petition before the Hon’ble Court against the order dated 22.11.2018 passed by the Hon’ble Court.

¶119

In light of the above direction the Survey Knowing Pleader Commissioner prepared his report and schedule ‘B’ properties which is available in the Partition Suit No. 52/1970 has been partitioned. The survey knowing pleader commissioner in presence of both parties and villagers inspected the suit land on 17.02.2019. Thereafter, the survey knowing pleader commissioner in paragraph 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18 mentioned the details of the properties which has been partitioned through Takhtabandi. A separate map was also prepared in which the land allotted to the plaintiffs had been shown to be in red colour whereas the property allocated to the defendant No. 16 has been mentioned in green colour. The detail of Khata No., Plot No., area partitioned to the plaintiff and defendant have also been mentioned in detail in tabular form at page No. 6 & 7 of the Commissioner’s report……………………………………………………………………..

¶120

40. The learned Court accepted the report of the Survey Knowing Pleader Commissioner wherein a separate map was also prepared in which the land allotted to the plaintiffs had been shown to be in red colour whereas the property allocated to the defendant No. 16 has been mentioned in green colour. The learned court ultimately held that the report of the Survey Knowing Pleader Commissioner was in accordance with the aforesaid directions of the court given in order dated 23.01.2019 and also in the light of the order passed by the writ court in W.P.(C) No. 1052 of 2014 and separate allocation was made to defendant No. 16(1).

¶121

18

¶122

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¶123

41. The plaintiffs filed appeal which was numbered as Civil Appeal No. 07 of 2022 and the learned 1^st appellate court allowed the appeal on contest and the order dated 01.02.2022 was set aside the matter was remanded directing the court to prepare a fresh report by appointing Survey Knowing Pleader Commissioner in the light of entitlement of defendant No. 16 declared by Hon’ble High Court which is 1/4^th share in the half share of the schedule property declared by judgment dated 31.07.1975 in favour of the plaintiffs together with defendant No. 16. The operative part of the judgement is quoted as under:-

¶124

“15. In the light of discussion made herein above and in the facts and circumstances of the present case, order dated 01.02.2022 accepting the report of Survey Knowing Pleader Commissioner is set aside. The court below is directed to get prepare a fresh report from Survey Knowing Pleader Commissioner in the light of entitlement of defendant no.16 declared by the Hon’ble High Court, which is 1/4 share in the half share of the schedule suit property declared by the judgment dt. 31-7-1975 in favour of plaintiffs together with defendant no. 16. It is needless to add that the Survey Knowing Pleader Commissioner would consider the fact of any transfer if any by the plaintiffs or defendant no.16 or receiving of any compensation by any of the parties of present appeal on account of land acquisition if any as this point was also canvassed during hearing of the present appeal. 16. It is therefore,

¶125

ORDERED

¶126

That the instant Civil Appeal no. 7 of 2022 arising of impugned order dated-01.02.2022 passed by Civil Judge (Sr. Div.)– I, Ramgarh in Partition Suit No 52/1970 is allowed on contest. The lower court order dated-01.02.2022 is set aside and the matter is remanded to the court below. The court below is directed to get prepare a fresh report by appointing Survey Knowing Pleader Commissioner in the light of entitlement of defendant no.16 declared by the Hon’ble High Court, which is 1/4 share in the half share of the schedule suit property declared by the judgment dt. 31-7-1975 in favour of plaintiffs together with defendant no. 16. It is needless to add that the Survey Knowing Pleader Commissioner would consider the fact of any transfer if any by the plaintiffs or defendant no.16 or receiving of any compensation by any of the parties of present appeal on account of land acquisition if any, as this point was also canvassed during hearing of the present appeal.”

¶127

19

¶128

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¶129

42. This court finds that the aforesaid observation in Civil Appeal No. 07 of 2022 that entitlement of defendant No. 16(1) has been declared by High Court which is 1/4^th share in the half share of the schedule property declared by judgment dated 31.07.1975 in favour of the plaintiffs together with defendant No. 16, is an error and suffers from misunderstanding of order dated 22.11.2018 was passed in W.P.(C) No. 1052 of 2014. This Court finds that in the order dated 22.11.2018 passed by this Court in W.P.(C) No. 1052 of 2014, there was no declaration by the High Court that defendant No. 16(1) would be entitled to any particular share (1/4^th share) from the half share allocated to defendant No. 16(1) along with the plaintiffs as per the decree of the learned trial court. This is over and above the fact that the defendant No. 16(1) is claiming half share in the half share of the suit property and consequently the defendant No. 16(1) had also filed an appeal which is subject matter of Second Appeal No. 62 of 2023.

¶130

43. Thus, this Court finds that neither the judgment dated 31.07.1975 in the Partition Suit No. 52 of 1970 had earmarked any definite share to defendant No.16(1) nor the High Court in the writ jurisdiction had held that the defendant No.16(1) was entitled for any definite share (much less 1/4^th share) in the suit property. Rather, the High Court in the writ petition held that defendant No. 16(1) along with the plaintiffs was entitled to half share of the suit property.

¶131

44. As already observed above the fact that the final decree was already prepared earmarking half share to the defendant No. 16(1) along with the plaintiffs way back on 26.02.2010 (modified on 30.07.2010) was apparently not brought to the knowledge of the writ court. It is also important to note that the Survey Knowing Pleader Commissioner’s report as well as the final decree prepared in the title suit which ended in final decree on 26.02.2010 (modified on 30.07.2010) has been placed by the learned counsel appearing on behalf of the plaintiffs and upon perusal of the final decree as it stood amended the allocation of share to plaintiff No. 1 to 7 and the defendant No.16(1) has been shown together. The said Survey

¶132

20

¶133

2025:JHHC:11452

¶134

Knowing Pleader Commissioner’s report was finally accepted in the final decree on 26.02.2010 (modified on 30.07.2010).

¶135

45. This Court finds that the final decree was already prepared in the partition suit which attained finality and the defendant No. 16(1) had challenged the same in appeal and had withdrawn the appeal.

¶136

46. This Court is of the considered view that once the final decree was prepared and the case was closed after earmarking the respective share of the plaintiffs along with defendant no.16(1) in terms of the preliminary decree, there was no occasion for the learned court to proceed for appointment of Pleader Commissioner and allocate the separate and exclusive share to defendant No. 16(1) particularly, when there was no such allocation of separate and exclusive share to defendant No. 16(1) in the judgment passed in the partition suit. It is also important to note that the judgment passed in the partition suit has also attained finality.

¶137

47. In the aforesaid facts and circumstances, this Court is of the considered view that the substantial question of law as framed in Second Appeal No. 99 of 2023 is fit to be answered in favour of the appellants of Second Appeal No. 99 of 2023 representing the plaintiffs and it is held that the court had become functus officio after preparation of final decree way back in the year 2010 and therefore registering an application filed by defendant No. 16(1) in the year 2011 was itself beyond the jurisdiction of the court and consequently the entire proceedings flowing from the application filed by defendant No. 16(1) is without jurisdiction and is fit to be set aside.

¶138

48. It is further held that unless the final decree dated 30.07.2010 was set aside by any higher court there was no occasion to prepare any fresh final decree as such preparation of fresh final decree will amount to two conflicting final decrees arising out of the same judgment passed in the partition suit.

¶139

49. So far as the judgments which has been relied upon by the learned counsel appearing on behalf of Defendant No. 16(1), this Court is of the considered view that none of the judgments help the

¶140

21

¶141

2025:JHHC:11452

¶142

defendant No. 16(1) in any manner. It is one thing to say that the trial court can take note of subsequent developments which have taken place after preparation of preliminary decree as the suit does not terminate only upon preparation of preliminary decree but in the present case there is no subsequent development. The defendant No. 16(1) was allocated share jointly with the plaintiffs in the preliminary decree passed in the title suit and also in the final decree prepared way back on 26.02.2010 (modified on 30.07.2010) which also has attained finality.

¶143

50. So far as the substantial question of law framed in Second Appeal No. 62 of 2023 is concerned, this Court is of the considered view and it is also not in dispute that in the partition suit 1/4^th share of the entire suit property was never earmarked in favour of defendant No. 16(1) rather the ½ share of suit property was earmarked jointly to defendant No. 16(1) and the plaintiffs.

¶144

51. In view of the aforesaid facts and circumstances and in view of the answers to the substantial question of law decided in Second Appeal No. 99 of 2023, this Court is of the considered view that neither the learned 1^st appellate court could have held that defendant No. 16(1) was entitled to 1/4^th of the ½ share of the suit property nor the learned executing court could have held that defendant No. 16(1) was entitled to ½ of the ½ share of the suit property as the learned trial court while passing the preliminary decree nowhere held that defendant No. 16(1) in his exclusive and individual capacity would be entitled to 1/4^th share of the entire suit property.

¶145

52. The substantial question of law framed in Second Appeal No. 62 of 2023 filed by the defendant no.16(1) is answered by holding that the learned 1^st appellate court committed a perversity by holding that the defendant No.16(1) will be entitled to one-fourth of the half share of the suit property schedule i.e. one-eighth share of the entire suit property and the defendant no. 16(1) along with the plaintiffs is entitled to ½ share of the entire suit property, as has been held by the trial court.

¶146

22

¶147

2025:JHHC:11452

¶148

53. The substantial question of law framed in Second Appeal No. 99 of 2023 is answered as follows:-

¶149

“I. The learned Court became functus officio after preparation of Final Decree on 26.02.2010 (modified on 30.07.2010) and therefore, registering an application filed by the defendant no. 16(1) in the year 2011 was itself beyond jurisdiction and the entire proceeding thereafter is vitiated being without jurisdiction and are set aside.

¶150

III. A fresh final decree could not have been prepared without setting aside of final decree dated 26.02.2010 (modified on 30.07.2010) by any higher Court.

¶151

54. All the aforesaid substantial questions of law are answered in favour of the plaintiffs and against the defendant no. 16(1) and consequently, both the judgments passed by the learned trial court preparing the fresh final decree as well as the learned 1^st appellate court passed in Civil Appeal No. 7 of 2022 are hereby set aside.

¶152

55. These two appeals are disposed of on the aforesaid observations.

¶153

56. Pending I.A, if any, is closed.

¶154

57. Let a copy of this order be communicated to the concerned court through “Fax/E-mail”.

¶155

(Anubha Rawat Choudhary, J.)

¶156

Rakesh/-

¶157

23

Mewalal Choudhary v. Rajkishore Choudhary

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Mewalal Choudhary v. Rajkishore Choudhary

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