HARI SAHU ALIAS HARIHAR SAHU Vs. JANHA SAHU

JUDGEMENT

(1.) The present First Appeal of the year 1979 is at the instance of defendant No. 1 in a suit for partition. Plaintiff-respondent No. 1 filed title suit No. 7 of 1978-1 in the Court of the Subordinate Judge at Anandpur seeking partition of her undivided 1/8th share in the suit property. The suit was contested by the defendants and ultimately the trial Court decreed the suit in the preliminary form in part on contest against defendants 1, 9, 11, 12, 13 and 15 and ex parte against other defendants. The share of the plaintiff was determined as 1/12th and there was a direction to the civil Court Commissioner to effect partition by metes and bounds except the dwelling house. The learned trial Judge in deciding the suit for partition framed issues, namely :-1. Is the suit maintainable?Is there any cause of action?3 Is the suit barred by law of limitation?4 Is the suit bad for misjoinder of parties?5 Is the plaintiff entitled to any share?6 Is the share claimed by the plaintiff excessive?7 To what relief, if any, is the plaintiff entitled? Is defendant No. 15's father Karuna the adopted son of Mari Sahu, D-1? Is D-9 the adopted son of Pany Sahu of Soilong? Has defendant No. 14 been given away in adoption in another family? SUSANTA CHATTERJI, J.: - 11Is defendant No. 14 entitled to any share in suit properties?"

(2.) The learned trial Judge has answered the issues and in particular deciding issue No. 8 has held inter alia that the factum of adoption as claimed by defendant No. 15 has well been proved and there is implied admission as to such adoption by defendant No. 1. The other issues have also been considered and by a reasoned judgment the suit has been decreed in the preliminary form.

(3.) Bring aggrieved by and dissatisfied with the aforesaid preliminary decree, defendant No. 1 has preferred the present First Appeal. The learned advocate appearing for defendant-appellant No. 1 has raised a short but interesting point, inasmuch as the learned trial Court in deciding the suit for partition and decreeing the same in preliminary form has decided the dispute between defendants 1 and 15 inter se which is neither relevant, nor permissible in law. He has developed his argument by drawing attention of the Court to the decision reported in AIR 1953 Hyd 170 (Lakshmamma v. Someswar Rao and another). In para 24 of the said decision, a Division Bench of Hyderabad High Court has observed inter alia that it had to consider whether it was necessary to frame an issue regarding the fact of the adoption of defendant No. 1 and the gift deed and the Will. These questions were not pertinent or relevant to the adjudication of the plaintiff's claim. In that case, admittedly defendant No. 1 was in possession of the property. If the plaintiff established her claim, she would be entitled to the possession of the property. The question whether defendant No. 1 was the adopted son or did not become material and it was not necessary for the adjudication of the plaintiff's claim. Those were questions 'inter se' between the defendants. The introduction of the said question and the framing of the issues regarding them, would in the opinion of the Court, complicate matters and raise controversies which did not arise for decision in that case.