First Appeal No. 464 of 1983. Case: Bijendra Mandal and Ors. Vs Ganpat Mandal and Ors.. High Court of Patna (India)
| Case Number | First Appeal No. 464 of 1983 |
| Counsel | For Appellant: Rajiv Kumar Verma, Naresh Kumar Sinha and Rajneesh, Advocates and For Respondents: Awadh Bihari Ojha, Advocate |
| Judges | Aditya Kumar Trivedi, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order I Rule 8; Order XXXII Rules 32, 32(3A)(2), 3A(2); Section 11; Code of Criminal Procedure, 1973 (CrPC) - Section 145; Indian Evidence Act, 1872 - Sections 101, 102, 44; Limitation Act, 1963 - Section 7 |
| Judgement Date | December 04, 2015 |
| Court | High Court of Patna (India) |
Judgment:
Aditya Kumar Trivedi, J.
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Plaintiffs/appellants being aggrieved by and dissatisfied with the judgment dated 12.08.1983, decree dated 29.08.1983 passed by Sub-Judge, Khagaria in Title Suit No. 17/1974/15/1977 whereby and whereunder dismissed the suit on contest with cost, have filed the instant appeal.
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For the sake of convenience, the status of the parties are being acknowledged in same way as they stood before the learned lower court.
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Asking for declaration with regard to the properties detailed under Schedule-1 of the plaint to be joint family property of a family consisting plaintiff, defendant-2nd party, defendant-3rd party and further defendant-1st party, has got no concern with the same, the judgment and decree passed in Partition Suit No. 12/1963 be declared as collusive, fraudulent and not binding upon the plaintiff, defendant-2nd party, identification of share of plaintiff as well as defendant 2nd party to the extent of 1/4th each followed with demarcation by appointing pleader-commissioner, final decree with possession thereupon cost at the suit, other relief or reliefs which the plaintiff is found entitled for and for that, it has been pleaded that plaintiffs No. 1 and 2 (major), plaintiff No. 3 and 4 (minors) being under guardianship of their natural guardian, mother plaintiff Nos. 5 and 6 as well, respectively, are the members of a joint Mitakshra family.
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It has also been disclosed that the plaintiffs, defendant-1st party, defendant-2nd party and defendant-3rd party are the descendants of Bhuj Das, Dhunj Das. Baiju Das was their brother who died in jointness, issueless. It has further been pleaded that Ayodhya Mandal, Lutan Mandal happen to be sons of Dhuj Das whose descendant Ganpat Mandal is Defendant No. 1. For better appreciation a genealogical table is given below in terms of Schedule-2 of the plaint:--
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It has further been disclosed that plaintiffs are the sons of Dhanu Mandal, Kamli Mandal, Tilakdhari Mandal and Dhyani Mandal. Dhanu Mandal was Karta and Karobari of his family during his life time who indulged in different kinds of activities adverse to the interest of the plaintiffs as well as on account thereof, the family suffered a setback, loss and disgrace.
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It has further been pleaded that Jorawar Mandal (Defendant No. 15) had drawn Partition Suit No. 12/1963 before Sub-Judge, Munger wherein after due elapse of time, Ganpat Mandal (Defendant No. 1) substituted himself as plaintiff. It has also been disclosed that he (Ganpat Mandal) took Dhanu Mandal in his collusion and got a collusive WS that no partition by metes and bounds was effected amongst the family members of Dhuj Das, Bhuj Das which happens to be false as well as contrary to the actual affair. It has further been pleaded that the lands detailed under schedule-I of the plaint is coming under the peaceful joint possession of the parties.
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It has further been pleaded that sons of Ram Keshav Mandal, namely, Dhanu Mandal, Kamli Mandal, Tilakdhari Mandal, Dhyani Mandal sailed under jointness. In the year 1933, there was partition and one branch was cared by Dhanu Mandal as well as became Karta (Manager) of joint family and during his tenure the family also made acquisition.
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Then it has been submitted that Dhanu Mandal was, virtually, influenced by Ganpat Mandal and on account thereof, he deliberately left to do proper Pairvi in Partition Suit No. 12/1963 as well as in likewise manner also failed to take proper care to protect the interest of the plaintiffs who were minor at the relevant time. On account of such collusive act of Dhanu Mandal in association with Ganpat Mandal, ultimately led the Partition Suit No. 12/1063 to be decreed affecting adversely to the interest of plaintiff. Not only this, though an appeal was filed before the Hon'ble High Court but again Pairvi was left intentionally to allow dismissal of the appeal for want of deposit of Talwana etc that too comprising of a meagre amount. It has also been pleaded that later on dispute arose whereunder Dhanu Mandal was murdered by the accused persons. In the aforesaid background, the plaintiff have pleaded that the judgment and decree of Partition Suit No. 12/1963 is found not at all binding upon the plaintiff. It has also been pleaded that delivery of possession has not been taken into effect in pursuance of the judgment passed in Partition Suit No. 12/1963 and that being so, the report whatsoever available on the record on that very score happens to be collusive one and is not binding upon the plaintiffs. Subsequently thereof, discharging the other formalities, paying court-fee, detailing the property under Schedule-1, pedigree of the family of the Schedule-2 filed instant suit with a relief as disclosed above.
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From the lower court record, it is evident that WS has been filed by the Defendants in two sets. As per joint pleading made on behalf of Defendants No. 1, Ganpat Mandal and 19, Sumitra Devi, apart from raising an ornamental objection, it has been pleaded that the suit is bad for non joinder of necessary party on account of non arraying sons of Jorawar Mandal, Tilakdhari Mandal as well as one son of Itwari Mandal. A plea of res judicata has also been raised in the background of judgment of Partition Suit No. 12/1963 as well as passing of final decree under Execution Case No. 10/1971 on the plea that in terms of Execution of final decree, the respective parties are over the land and in the aforesaid background, parties have lost unity of title as well as unity of possession.
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Now denying the averments of the plaint, a genealogical table has been furnished in order to show the correct status of the family of which Sheo Charan Mandal (deceased) was the common ancestor. It has also been pleaded that Dhanu Mandal during his life time was Karta and Karobari of the joint family during whose life time there was acquisition.
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Now coming to the status of Partition Suit No. 12/1963, it has been submitted that all the persons were duly impleaded and as the natural guardians failed to represent the minor coparceners on account thereof, Sri Sagar Singh, Advocate, Munger was appointed by the court as guardian ad litem who had filed WS on their behalf as well as defended the suit till its conclusion properly. It has also been pleaded that though defendants have filed WS contrary to the actual affair and on account thereof, they failed to substantiate the same during course of proceeding with the trial which ultimately, concluded acknowledging the share of the Ganpat Mandal to the extent of half and in pursuance thereof, preliminary decree was prepared followed with Pattibandi and ultimately concluded by way of final decree under Execution Case No. 10/1971.
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It has further been pleaded that plaintiff, in order to make out a case have intentionally and purposely introduced peculiar story that Dhanu Mandal, their ancestor, who was Karta and Karobari of the joint family, acted adverse to their interest after going into collusion of Ganpat as well as being drunkard and lecherous. At one point of time...
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