JHARKHAND HIGH COURT ISSUES ORDER ON BADARI PRASAD ANAD ORS. V/S NAURANG PRASAD AND ORS.

RANCHI, India, Sept. 8 -- Jharkhand High Court issued the following order on Aug. 8:

1. Learned counsel for the appellant is present.

2. This second appeal has been filed against the judgment and decree dated 22.06.2015 (decree sealed and signed on 04.07.2015) passed by learned Principal District Judge, Latehar in Partition Appeal No. 07 of 08 whereby the learned 1st appellate court affirmed the judgment and Final Decree dated 27.05.2008 (final decree sealed and signed on 25.06.2008) passed by learned Sub-Judge-II, Latehar in Partition Suit No. 1 of 99.

3. Learned counsel for the appellants has submitted that this case was tagged with S.A. No. 92 of 2005 in view of the fact that in S.A. No. 92 of 2005 the preliminary decree was under challenge and in the present appeal, the final decree was under challenge. The learned counsel submits that so far as the substantial questions of law in the present case are concerned, the same were framed vide order dated 14.05.2018 which are as follows:

"(i) Whether both the courts below completely overlooked the objection raised by the appellant against Plot No. 221,VillageLatehar which was not joint family property rather G.M. Land as Rasta and was allotted in Takhta of Respondent No. 2 showing the same as house and Sahan and thus entire report dated 28.04.2008 is fit to be rejected?

(ii) Whether the valuation of the suit property has been fixed by the Amin Commissioner while allotting Takhta?"

4. Learned counsel for the appellants further submitted that vide judgment dated 12.09.2024, the judgment and preliminary decree impugned in S.A. No. 92 of 2005 i.e., judgment and preliminary decree dated 15.03.2004 in Partition Suit No. 1 of 1999 has been quashed and set-aside and the matter has been remanded back to the learned court giving opportunity to the parties to amend their respective pleadings and file additional documents and lead further evidence in support of the amended pleading. He submits that since the co-ordinate Bench of this Court had remanded the matter relating to judgement and preliminary decree to the trial court , the court did not answer the 1st substantial question of law framed in that proceedings to avoid any prejudice which may be caused in the trial while deciding the matter afresh. Both the parties were directed to appear before the Sub-Judge- II, Latehar or his successor Court on 13.11.2024. A copy of the said judgment has been produced before this Court and paragraphs 23 to 27 of the said judgment are quoted as under:

"23. Under such circumstances, this Court is of the considered view that in view of the admitted case of the plaintiffs that certain persons of the joint family property have not been included in the suit nor the coparcener being impleaded as parties to the suit, the suit for partial partition is not maintainable. So the second substantial question of law is answered accordingly.

24. Keeping in view the principle of law settled in the case of R. Mahalakshmi vs. A.V. Anantharaman & Ors. (supra), this Court is of the considered view that courts below have committed an error by allowing the suit for partial partition of the property and in the light of the discussions made above, the judgment and decree passed by both the courts below i.e. the judgment and decree dated 11.03.2005 passed by the learned District Judge, Latehar in Partition Appeal No. 06 of 2004 and the judgment and decree passed by the learned trial court being Sub-Judge-II, Latehar in Partition Suit No. 01 of 1999 dated 15.03.2004 is hereby quashed and set aside.

25. The matter is remanded to the court of Sub-Judge-II, Latehar or its successor court by giving opportunity to the parties to amend their respective pleadings and to file additional documents and to lead further evidence in support of amended pleadings and thereafter the trial court being the court of Sub-Judge-II or its successor court can pass a judgment after appreciating the additional pleadings and evidence adduced in support thereof.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=oVz058q2ZLjDVEITM0Vw1B2bP9%2FewanS1gMA69C%2BouIxMRC%2BLOUIRa%2Fvewo5cIXN&caseno=SA/364/2015&cCode=1&cino=JHHC010065352015&state_code=7&appFlag=)

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