SURENDRA MAHANTI Vs. GHASIRAM MAHANTI

JUDGEMENT

(1.) This second appeal by defendant No. 1/ b is against the confirming judgments of the Courts below decreeing the suit of the plaintiff and directing partition of the suit schedule properties half and half between the plaintiff and the above defendant. It is admitted case of the said defendant-appellant that though the schedule 'A' property is liable to be partitioned, schedule 'B' property was the self-acquired property of his father Basudeba and the same having been separately recorded in the record of right, he was entitled to the said property to the exclusion of all others.

(2.) None appeared for the respondents. Mr. B. R. Sarangi, counsel for the appellant, did not press the other grounds of appeal so far as they relate to the findings of the Courts below that the defendant failed to prove that 'B' schedule property is his exclusive property and that it was not liable for partition. This has been so done by Mr. Sarangi rightly since this Court sitting in the second appeal would not disturb the concurrent findings of the Courts below.But it was stenuously urged by Mr. Sarangi that though this defendant at the earlier possible opportunity raised the issue of absence of pecuniary jurisdiction to try the case, the Courts below committed gross error, and particularly, the lower appellate Court, in not accepting this objection of the defendant, and according to Mr. Sarangi, it was an error on the part of the lower appellate Court i.e. the Additional Sub-Judge that is stead of deciding the appeal it should have returned the same for being filed in the proper Court. In this regard, Mr. Sarangi cited the decision of this Court in AIR 1977 Orissa 85, Mst. Dura Deo v. Smt. Pirobati Dei.

(3.) I have no quarrel ever the proposition laid down by this Court in the above cited case since the principle is well settled. But then, Mr. Sarangi has failed to satisfy this Court that even though objection to the pecuniary jurisdiction was taken before both the Courts below at the earliest opportunity there was consequent failure of justice. It is held by the Apex Court in the case reported in AIR 1981 SC 1683, Koopilan Uneen's daughter Pathumma v. Koopilan Uneen's son Kuntalan Kutty, that even if the objection was taken in the Court of first instance and also such objection was taken at the earlier possible opportunity, yet the other third and important condition as prescribed under Section 21 of the C.P.C. is that there has been a consequent failure of justice. Having heard Mr. Sarangi and gone through the judgments of the Courts below, I am not satisfied that disposal of the appeal by the learned Additional Sub-Judge caused a failure or miscarriage of justice.