Dismissed

Most. Bachani Kuer and Ors. v. Rama Shankar Singh and Ors.

Patna HC5 Mar 2013SA/211/2011

Case brief

AI extract

What is this about?

In a second appeal concerning partition of family land, the Patna High Court held that the dispute involved purely factual findings by the first appellate court regarding land valuation and allotment. Finding no substantial question of law arose, the appeal was rejected.

What did the court decide?

The appeal under Section 100 of the Code of Civil Procedure was dismissed as it did not involve any substantial question of law.

Most. Bachani Kuer and Ors. Vs Rama Shankar Singh and Ors. — Partition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.211 of 2011

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====================================================== 1. Most. Bachani Kuer wife of Late Ram Kumar Singh

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Anil Singh

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Sunil Singh both are sons of Late Ram Kumar Singh all are residents of village Piyan Kala P.S. Chenari District Rohtas

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Tejmani Devi wife of Birendra Singh, resident of village Mahuari PS Ramgarh District Kaimur

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Deo Kumar Singh 6. Sheo Kumar Singh both 5 and 6 are sons of Late Ishwar Singh

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Bidya Sagar Singh

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Mangal Singh

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Sidhu Narayan Singh all 7 to 9 are sons of Late Ram Kumar Singh All are residents of village Piyan Kala P.S. Chenari District Rohtas (Sasaram) .... .... Appellants Versus

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Rama Shankar Singh

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Dilip Singh both 1 and 2 are son of Late Ram Bhawan Singh

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Smt. Lahasho Devi wife of Late Ram Bhawan Singh

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Moti Sundar Devi wife of Satish Chandra Singh resident of village Kumhan P.S. Sheosagar District- Rohtas (Sasaram)

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Sakuntala Devi wife of Prabhu Narayan Singh, resident of village Ghari P.O. Bhadaila PS Kudra District Kaimur Bhabhua) . ….Respondents 1^st set

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5 Bhagwati Singh son of Late Jang Bahadur Singh

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Yogeshwar Singh

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Anil Singh both are sons of Late Bhagwati Singh, all are residents of village- Sohalia, PS Kargahar District Rohtas (Sasaram)

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Seema Kumari (minor)

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Bodar Kumar (minor) daughters and son of Bhagwati Singh under the Guardianship of Bhagwati Singh Natural Guardianship and next friend

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Meena Devi wife of Amar Singh, resident of Mohalla Gajrah (Gaurlakshmi) Sasaram PS Sasaram District Rohtas

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Nanhak Devi @ Dharamshila Devi wife of Ramraj Rai resident of village Shrikhinda PS Nokha District- Rohtas at present at Karkatta colony PS Khelari District Ranchi

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Kirit Ahir son of Jaganu Yadav resident of village Telari PS Chenari District- Rohtas

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Vijay Singh

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Suryabansh Singh

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Deva Singh all 13 to 15 are sons of Late Kailash Singh

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.... .... Respondents 2^nd set ====================================================== Appearance : For the Appellants : Mr. Arabind Nath Pandey, advocate For the Respondents : Mr. ======================================================

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Patna High Court SA No.211 of 2011 (8) dt. 05 -03-2013

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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH CAV ORDER

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Heard Mr. Arbind Nath Pandey, learned counsel for the appellant.

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8 05-03-2013

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The appellants who were plaintiffs before the trial court are aggrieved by the judgement dated 31-01-2011 and the final decree dated 07-02-2011 passed by learned 2^nd Additional District Judge, Rohtas in T.A. No. 36/02 whereby he has modified the judgement dated 24-01-2002 and the final decree dated 07-02-2002 passed by learned Sub Judge, V, Sasaram in Title Suit No. 216/1964.

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The parties in the present order are being described as per their party position before the trial court for the sake of convenience.

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The plaintiffs had filed the suit being title suit No. 216/1964 seeking partition in the family claiming half share of land as described in the schedule to the plaint. The defendants/ respondents contested the suit with the plea, inter alia, that partition in the family had already taken place 45-46 years ago which was complete and effected by metes and bounds with respect to the entire joint family property. The defendants also claimed that some of the properties described as joint family property were exclusively acquired by the defendants’ family members after partition and the plaintiffs did not have any concern with the same. The suit was decreed in part by judgement dated 30-09-1964 against which the plaintiffs and defendants both preferred appeal before this court vide First Appeal No. 580/1969 and First Appeal No. 585/1969.

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It has been contended on behalf of the appellants in

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the present appeal that First Appeal No. 580 of 1969 was allowed and the judgement and decree passed in Title Suit No. 216/1964, to the extent it held that acquisition made after 1929 would go to the branches who were shown to have made the purchases was set aside. The plaintiff’s suit was decreed for partition in accordance with the respective shares of the parties in respect of such acquisition also. In terms of the judgement of this court in First Appeal No. 580 of 1969 and 585 of 1969 decree was prepared and passed by this court. Letters Patent Appeal No. 79/1985 preferred by the defendants also came to be dismissed by this court. The defendants preferred Civil Appeal No. 7177-78 of 1993 before the Supreme Court which too was dismissed on 21-11-1996 and, thus, the judgement of this court passed in the First Appeal No. 580 of 1969 and 585/1969 became final.

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It appears that Advocate Commissioner was appointed for allotment of Takhta between the branches according to valuation of the suit lands of all the villages in which the suit lands were located. On 25-12-1990 the Advocate Commissioner submitted alignment report showing separate Takhta to be allotted to the plaintiffs and defendants. The defendants filed objection on 04-06-1999 and the plaintiffs on 15-06-1999. It also appears that in course of hearing before the Advocate Commissioner both the parties exchanged their Takhta with certain modifications taking into account the transfer of land already made by the parties to third parties.

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Before dealing with and referring to the other facts of the case, it would be apt to mention that the suit properties are located in three villages, namely, Piyan Khurd, Piyan Kala and Pora located under police station Chenari in the district of Rohtas.

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The valuation of the lands located in village Piyan Kala and Pora has been found to Rs. 3000/- per acre whereas those located in Piyan Khurd was found to be Rs. 2000/- per acre.

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As has been noted above, the plaintiffs filed their objections vide their petition dated 15-06-1999 before the Advocate Commissioner. They took the plea that defendants had sold land in the village Piyan Khurd to the extent of 2.35 acres which was allotted to them as also entire allotment of village Pora measuring 3.61 ½ acres. The plaintiffs, therefore, offered and suggested that they agreed to retain 2.35 acres of land out of plot No. 121 old and 221-222 new of village Piyan Khurd in lieu of sold plot No. 80-81 of village Piyan Khurd. They further suggested that in lieu of land sold by the defendants measuring 3.61 ½ acres of village Pora the plaintiffs wanted to retain 2.75 acres of land of plot No. 221, 222; 1.86 acres of old plot No. 24 and new 27 and 30 decimals of old plot No. 25 and new 32 towards south (total 5.41 acres). The plaintiffs, thus, claimed to get 5.41 acres of land in lieu of 3.61 ½ acres of land said to have been sold by the defendants of village Pora.

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The proposal of the plaintiffs was not acceptable to the defendants who filed their objection on 05-07-1999 suggesting that the plaintiffs might retain 3.61 ½ acres of land of village Pora as allotted in the exchanged share and in lieu of that the defendants would adjust the purchasers of this land in their own Takhta of RS plot No. 221-222 of village Piyan Khurd. The defendants in their petition dated 04-06-1999 had also suggested that excess of land sold by them be adjusted with the same valuation of other land.

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There is no dispute about the fact that after

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hearing the parties on their objection to the report of Advocate Commissioner dated 25-12-90, learned trial court passed the order dated 30-07-1999 to the effect that in course of hearing both the parties agreed to exchange the share allotted to them in light of details given in the objection of plaintiffs dated 15-06-1999. There is also no dispute about the fact that learned Trial court took note of the fact that the parties agreed that they had already sold certain properties and, therefore, such property could be adjusted in the shares allotted to them. In this view of the matter, the learned trial court observed that if it was found that any party had sold in excess area of land, the other party should be compensated from other lands of the same valuation and preferably in the same Mauza. Learned trial court accordingly directed the Advocate Commissioner “to submit a modified report in the light of this order and the objection of the plaintiffs dated 15-06-1999” .

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This order dated 30-07-1999 is the real bone of contention as, according to the plaintiffs, by this order the Advocate Commissioner was obliged to submit report in the light of “objection of the plaintiffs dated 15-06-1999”. According to them the report of Advocate Commissioner would otherwise violate the order dated 30-07-1999 passed by the learned trial court. The dispute continued and on 07-04-2000 the defendants filed a petition to which the plaintiffs filed their rejoinder whereupon the learned lower court passed order dated 06-05-2000 directing the Advocate Commissioner to submit his report “in the light of order dated 30-07-1999” passed by him. Petition of the defendants dated 07-04- 2000 stood disposed of.

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The Advocate Commissioner submitted his modified report dated 03-06-2000which is the second report

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submitted by him. The defendants objected to the report by filing a petition dated 04-12-2000 with the plea that the report was prepared in violation of the order of the trial court dated 30-071999 wherein it was observed that if it was found that any party had sold any excess area of land in that case the parties should be compensated from other lands of same valuation and preferably within the same Mauza. It was pleaded that the defendants had sold 3.61 acres of land in village Pora and, therefore, these lands are to be adjusted from lands of defendants in other village, Piyan Kala from the same valuation but the Advocate Commissioner made adjustment in other village Piyan Khurd where the valuation of the land is not same. It was pleaded that the Advocate Commissioner was either to allow the land of same valuation at village Pora and as no land was left to the defendants in village Pora the Advocate Commissioner should have adjusted the land of Piyan Kala of same valuation. To this the plaintiffs made their rejoinder stating that the petition filed by the defendants dated 05-07-1999, as noted above, was not accepted by the court and that the trial court vide order dated 30-07-1999 had directed the Advocate Commissioner to “ submit report in the light of plaintiffs’ objection dated 15-06-1999”.

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Learned trial court after hearing the parties vide his order dated 15-10-2001 confirmed the report of the Advocate Commissioner observing that the report of the Advocate Commissioner dated 03-06-2000 would form part of order dated 15-10-2001 and the final decree. As some typographical error occurred in the decree after necessary correction, final decree dated 07-02-2002 was accordingly prepared. It is against this final decree dated 07-02-2002 the Title Appeal No. 36/2002 was

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preferred in the file of learned 2^nd Additional District Judge, Rohtas at Sasaram.

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This is to be noted that in its report dated 03-06-2000 the Advocate Commissioner allotted 7 acres and odd decimals of land out of Takhta of defendants to the Takhta of plaintiffs in lieu of 3.61 ½ acres of land of village Pora which was sold by the defendants. This is the only dispute which was raised by the defendants before the first appellate court and this is the only dispute over which the parties are fighting up to the level of second appeal.

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The defendants who are respondents herein and were appellants before the first appellate court, pleaded that the trial court should have adjusted the lands of village Pora with the lands allotted to defendants in village Piyan Kala. According to them valuation of land of village Piyan Khurd was Rs. 2000/- per acre and valuation of land of village Piyan Kala was Rs. 3000/per acre, therefore, sold land of village Pora should have been adjusted with the lands of village Piyan Kala and, accordingly, prayed to modify the final decree only to the extent of land of village Pora measuring 3.61 acres.

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Taking into account the facts as noted above, the learned first appellate court framed two points for consideration which are as follows:(i) Whether the modified report of the Commissioner dated 03-06-2000 with respect to allotment of lands of Piyan Khurd measuring 7 acres and odd to the Takhta of plaintiffs/ respondent in

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(ii)

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lieu of sold land of village Pora measuring 3.61 ½ acres is based on the order dated 30-07-1999 passed by the learned lower court with the consent of the parties?

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Whether the judgement dated 24-01-2002 and final decree dated 07-02-2002 are fit to be maintained or fit to be modified to the extent of the allotment of share with respect to land of Pora measuring 3.61 ½ acres?

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In view of the rival plea one on behalf of the plaintiffs that in the order dated 30-07-1999 there was direction for preparation of Advocate Commissioner’s report on the basis of their objection dated 15-06-1999 with the further plea that defendants’ objection dated 05-07-1999 was not accepted by the trial court. Learned first appellate court after scrutinizing the effect of the order of the learned trial court dated 30-07-1999, which was admittedly passed with the consent of the parties, came to conclusion that the order was in two parts, the first part related to exchange of land already allotted to both the parties and in that view of the matter had observed “ in course of hearing both the parties agreed to exchange shares allotted to both the parties in the light of details given in the objection of plaintiffs dated 15-06-1999”. The second part related to the sold lands of the parties in which the learned trial court had mentioned that both the parties pointed out that they had already sold certain properties and, therefore, those properties should be adjusted in the share

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allotted to them already and thereafter it further observed that in case it was found that any party had sold any excess area of land, in that case that party should be compensated from other lands of same valuation and preferably in same Mauza. Learned first appellate court, in such view, came to a conclusion that Advocate Commissioner allotted the land of village Piyan Khurd measuring 7 acres odd in lieu of land sold of village Pora measuring 3.61 ½ acres but the valuation of land of Piyan Khurd was Rs. 2000/- per acre whereas the Advocate Commissioner allotted excess area in violation of the order of the learned trial court. It was in this background that learned first appellate court came to a conclusion that decree dated 07-02-2002 was not prepared with the consent of the parties with respect to the land of village Pora measuring 3.61 ½ acres and it could not be treated to be compromise decree with respect to land of Pora. He accordingly directed for modification the decree.

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The present second appeal under section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) has been filed against the order of the learned first appellate court whereby he has, in the circumstances mentioned above, directed for modification of the final decree.

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From the facts noted above which have been exhaustively dealt, it is apparent that absolutely no question of law, much less, substantial question of law is involved in the present appeal. The legal position needs no reiteration that for a Second Appeal to be entertained under section 100 of the Code, it must involve a substantial question of law and no other ground is available to question the finding of final court of fact, that is, the first appellate court and Section 101 of the Code in negative terms,

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bars maintainability of a Second Appeal on any other ground than the ground mentioned in Section 100 of the Code. The question in the present case is purely of fact which has been elaborately dealt by the learned first appellate court. Learned first appellate court in the impugned judgement under appeal has assigned detailed reasons necessitating modification in the decree under appeal. The logic and reasoning assigned by the learned first appellate court, on the face of it, appears to be plausible and cogent and cannot be said to be without any basis.

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In view of the above, I am of the opinion that this appeal under section 100 of the Code cannot be maintained as it does not involve any substantial question of law to be determined by this court under the said provision. The appeal is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Most. Bachani Kuer and Ors. v. Rama Shankar Singh and Ors.

Case brief

What is this about?

What did the court decide?

Most. Bachani Kuer and Ors. v. Rama Shankar Singh and Ors.

Case brief

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