Saryu Dubey And Ors vs Awadhesh Dubey And Ors

Heard, learned counsel for the appellants, Mr. Rajeev Ranjan Tiwari. The second appeal has been preferred against the impugned judgment dated 28.11.2008 and decree signed on 13.12.2008 passed by learned Additional District Judge, F.T.C. No. I, Palamau in Partition Appeal No. 32/1992 affirming the judgment dated 30.05.1992 and decree signed on 06.06.1992 passed by Sub-ordinate Judge-III, Daltonganj in Partition Suit No. 94/1983.

Learned counsel for the appellants has submitted that appellants are descendants of Baldeo Dubey, though the learned courts below while affirming the judgment has held that plaintiff is not entitled for any share in Schedule-C property considering severance in the family, but considered jointness in family property with regard to Schedule-A & B properties. There is no such unity of title and possession with respect to Schedule-C property. The said judgment of trial court has been affirmed by the learned appellate court. The plaintiff has never preferred any appeal against the said judgment of the trial court.

Learned counsel for the appellants has submitted that three appeals have been preferred by different sets of defendants against the judgment and decree passed by learned trial court, but the same has been dismissed by the learned appellate court affirming the judgment and decree passed by the trial court without taking into notice of Exhibit-B & B-1.

Learned counsel for the appellants has submitted that Exhibit-B & B-1 brought on record without objection deals with previous partition and allotment of share of Rameshwar Dubey, Son of Chhedi Dubey, resident of Village - Cheneya, District - Palamau with regard to Schedule-A property. The appellants are only aggrieved with the fact that the share which has already remained in possession with the appellants since long should not be disturbed during preparation of the final decree.

To strengthened his argument, learned counsel for the appellants has relied upon the evidence of D.W.-7, father of the plaintiff, namely, Tapeshwari Dubey particularly in para-8, where Tapeshwari Dubey has admitted that the land of Mouza-Cheneya has already been partitioned between the share holders and he has put signature on the said partition deed. As such, learned counsel for the appellants has submitted that if any disturbance in the possession of land of defendant nos. 4 & 5 is made during final settlement, the parties will suffer a lot as because defendant no. 4 & 5 got 1/3rd share in Schedule-A property as per their entitlement and some of their land has already been sold to different persons.

Learned counsel for the appellants has submitted that he is not aggrieved by the share in Schedule-A, rather he is only apprehending that any disturbance in the long possession of the appellant because of previous partition. The learned trial court and the appellate court have concurrently held contrary to the evidence brought on record as Exhibit-B & B/1 and evidence of D.W.-7 Tapeshwari Dubey.

The entire issue between the family of Sukhari Ram Dubey, the common ancestors of Tapeshwari Dubey, Baldeo Dubey and Chhedi Dubey may not be re-opened as the courts below have considered Schedule-C property not liable to be partitioned between the parties, but wrongly considered Schedule-A to be joint. The defendant no. 4 has not claimed any share in Schedule-B property and has no grievance that share has not been allotted to him in Schedule-B property.

Under the aforesaid circumstances, this second appeal is admitted on the following substantial question of law limited to Schedule-A property:-

(i) Whether the Schedule-A property which relates to Khewat No. 4/7 & 3/6 of Village Cheneya was joint or partitioned between the family of recorded tenants Sukhari Ram Dubey?

(ii) Whether the courts below have considered the Exhibit-B & B/1 in consonance with the evidence of D.W.-7 Tapeshwari Dubey, father of the plaintiff while adjudicating suit property of Schedule- A?

The lower court records has already been called for by Coordinate Bench of this Court in terms of order dated 06.12.2019, which has already been received and perused by this Court.

Let notice be issued to the respondents namely, (1) Awadhesh Dubey, Son of Tapeshwari Dubey, Resident of Village - Cheneya, P.O. - Rajhara, P.S.-Bishrampur, District - Palamau, (2) Harihar Dubey, Son of Tapeshwari Dubey, Resident of Village - Cheneya, P.O. - Rajhara, P.S.-Bishrampur, District - Palamau (3) Smt. Shakuntala Devi, Wife of Sri Saltanti Mishra, Resident of Village - Ranadih, P.O. & P.S. - Mohammedganj, District - Palamau (4) Smt. Urmila Devi, Wife of Sri Chakrawarty Pandey, Resident of Village - Semra, P.O. & P.S. - Chainpur, District - Palamau, 5(a). Tirthraj Dubey, 5(b). Krishna Kumar Dubey, 5(c). Sidhi Kumar Dubey, 5(a) to 5(c) all sons of Harihar Dubey, all residents of At + P.O. - Hamidganj, Near Police Line, P.S. - Daltonganj, District - Palamau, 5(d). Sumitra Devi, Daughter of Harihar Dubey, Wife of Dhanwant Dubey, resident of At + P.O. - Purubdiha, P.S. - Chainpur, District - Palamau, 5(e). Pavitar Devi, Daughter of Harihar Dubey, Wife of Late Basistha Dubey, Resident of Village - Golahane, P.O. - Nawadih, P.S. - Padwa, District - Palamau, 5(f). Sabitar Devi, Daughter of Harihar Dubey, Wife of Shiv Shankar Mishra, Resident of At + P.O. - Hamidganj, Near Police Line, P.S.- Daltonganj, District - Palamau, 5(g). Gyanti Devi, Daughter of Harihar Dubey, Wife of Sanjay Mishra, Resident of Village & P.O. - Hamidganj, Near Police Line, P.S. - Daltonganj, District - Palamau, 5(h). Gunwanti Devi, Wife of Vijay Mishra, Resident of At + P.O. - Dehri-on-Sone, Near Rama Rani High School, P.S. - Dehiri-on-Sone, District - Rohtas, Bihar, (6). Sonemati Devi, Wife of Damodar Dubey (7) Smt. Bhagmati Devi, Wife of Bal Ram Tiwari, (6) & (7) Both residents of Village - Baliari, P.O.- Belhath, P.S. - Majhiaon, District - Palamau, (8) Rameshwar Dubey @ Ram Ishwar Dubey, Son of Late Chhedi Dubey, Resident of Village - Cheneya, P.O. - Rajhara, P.S. - Bishrampur, Distrit - Palamau, under both process i.e. under registered cover with A/D as well as under ordinary process, for which requisites etc., must be filed within four weeks.