Md. Nurul Hasnain @ Md. Narual Hasnain and Others vs Bibi Kamrul Fatima and Others

Mungeshwar Sahoo, J.—This First Appeal has been filed by the defendants-appellants against the judgment and final decree dated 08.02.1989 passed by the learned Sub Judge VI, Patna in Title Suit No. 48 of 1956/31 of 1983. The plaintiffs-respondents filed the aforesaid suit for partition of the suit property claiming 1/4th share. The said suit was decreed preliminarily on 31.07.1958. The present appellants filed First Appeal No. 609 of 1958 before this court. The said First Appeal was disposed of by the High Court on the basis of compromise on 21.11.1963. It appears that in the plaint and preliminary decree, some of the suit properties were described as Bakast lands and Tauji numbers were given. After vesting of zamindari, the said lands became the subject matter of the partition. Accordingly, on 13.09.1967, the plaintiffs-respondents filed an application with full particulars of the Bakast and Raiyati lands comprised in different Taujis and then prayed for partition of those properties finally by appointment of Pleader Commissioner. Against the said petition, objection was filed by the present appellants on 06.08.1968 in the court below and prayed for to stay the Pleader Commissioner from carving out takhtas. Finally, the court below after hearing the parties on 29.09.1969, rejected all the objections filed by the appellants. Against the said order, the appellants filed First Appeal No. 466 of 1969 and Civil Revision No. 1270 of 1969 raising the objections that the plaintiffs did not give the full particulars of the properties earlier and in the petition, the particulars of the properties given are contrary to the descriptions given in the plaint. Some of the properties are self-acquired properties of the defendants and, therefore, are not available for partition. However, the First Appeal was dismissed as not maintainable on 28.08.1974. After hearing the parties, the Civil Revision was dismissed on merit. However, while dismissing the Civil Revision, it was observed by this court that if so advised, the defendants may file a fresh objection. This order was passed in the year 1974. The appellants filed the objection in the year 1988, i.e., after 14 years and in the objection, the same very objection has been raised that in the plaint, no particulars of the properties have been given and that some of the properties are self-acquired properties.

It is not disputed by the appellants that these objections taken by the appellants was negatived by the High Court in the Civil Revision application. Therefore, in exercise of revisional jurisdiction, which is a part of the appellate jurisdiction, this court had already rejected the objections as far back as in the year 1974. Therefore, the sustainability of the objections which is being now raised after 14 years had already been examined by the trial court and also by this court in Civil Revision. The legality or otherwise of the order passed by the trial court was tested by the appellants by filing Civil Revision application. In such circumstances, when the revisional jurisdiction is part of appellate jurisdiction, this court sitting in appellate jurisdiction cannot differ with the order passed by this very court in revisional jurisdiction when the same matter is involved in the same proceeding between the same parties.

From perusal of the objections filed by the present appellants, it appears that the main objection is that the plaintiffs and defendant no. 20 have included many properties which are not in the suit and which have already been sold. So far this objection is concerned, if it is relied upon, then according to the appellants themselves, the purchasers are in possession of the property. However, it may be mentioned here that during this long period, no one ever filed any objection that his property is being partitioned. It may further be mentioned here that the execution proceeding was not stayed by this court, therefore, the parties have already got delivery of possession of the properties without there being any resistance by anyone. Therefore, this objection has got no force.

The next objection is that in the suit only share in different Taujis have been mentioned in the Schedule and now the plaintiffs and defendant no. 20 have mentioned the lands under those Taujis, hence, the confusion and mistake vide paragraph 2 of the objection. Therefore, in view of this objection, it becomes clear that earlier only share in Taujis were mentioned and after preliminary decree, the details of the plot numbers have been given. It is not the case of the appellants that any plot mentioned by the plaintiffs is not of the joint family property or is out of those Taujis. Therefore, there is no dispute regarding the identity of the lands.

The next objection is that some of the lands included in partition exclusively belonged to the petitioners. So far this objection is concerned, except this statement there is nothing on record as to how the lands belong exclusively to them. There is no such case in the pleading. As stated above, the First Appeal before this court was disposed of on the basis of compromise.

The learned senior counsel, Mr. Raghiv Ahsan submitted that some of the properties belonged to strangers. So far this submission is concerned, as stated above, no stranger has come either before the trial court or before executing court or before this court in this appeal claiming those properties.

The learned counsel submitted that there can be more than one preliminary decree and more than one final decree. Therefore, the learned court below should have decided the objection that some of the properties are self-acquired properties of the appellants which have been mentioned in Schedule II to the objection. No doubt, there can be more than one preliminary decree or final decree but in the present case, it is not the case of the defendants-appellants in the pleading that any of the property was self-acquired property. From perusal of the compromise application, which is part of the preliminary decree, it appears that it has been admitted that the plaintiffs-respondents have got 1/4th share in the suit property and likewise, defendant no. 5, i.e., respondent no. 2 herein has got 1 Anna 14 Dam share in the suit property. Therefore, when there is no dispute about the identity of the lands, how can the defendants be allowed to say now that the plaintiffs and defendant no. 5 and defendant no. 20 have got no share in the property mentioned in detail in Schedule II to the objection petition. It appears that this objection has been raised for the first time in the objection which too was rejected earlier by the trial court and by this court in revisional jurisdiction.

It has been held by this court in the case of Jugeshwar Singh and Another Vs. Rijhan Singh and Others, that the First Appeal against final decree is in fact, in the nature of a Second Appeal. The objection as discussed above raised by the appellants have already been examined by the trial court earlier and by this court in Civil Revision. After 14 years, again the same objection has been raised. Moreover, merely taking an objection is not sufficient to hold that the properties are self-acquired properties. There is no evidence to that effect. In such circumstances, in this First Appeal, no such finding can be recorded particularly when the appellants never prayed before the trial court for adducing evidence. The further glaring fact is that this suit for partition was filed in the year 1956 and still today, the matter is pending although, the delivery of possession has already been effected in favour of the parties.

The learned senior counsel for the appellants submitted that defendant no. 5 has been allotted different lands than the lands allotted to her in the compromise application. So far this submission is concerned, I find no force because from perusal of the takhta allotted to defendant no. 5-respondent no. 2, it appears that the said plots have been allotted and in addition to the said plots, some other lands have been allotted as has been agreed upon between the parties in the compromise application. Moreover, this is not the objection raised by the appellants in the trial court in the final decree proceeding.

In view of the above discussion, I find no force in the objection petition filed by the appellants. It appears that the learned court below has considered all aspects of the matter and then rejected the objection application and confirmed the Pleader Commissioner''s report. In such circumstances, I find no reason to interfere with the impugned judgment and final decree. In the result, this First Appeal is dismissed with cost of Rs. 10,000 to be paid by the appellants to the plaintiffs-respondents and defendant-respondent no. 2 within two months failing which the respondents shall realize the same through process of the court.