BINAY KRISHNA Vs. RAJ KUMAR PRASAD

JUDGEMENT

(1.) THE original defendant nos. 2 and 4 Judgment -debtors, are the appellants in this Second Appeal which arises out of the judgment and final decree dated 8.12.1998 passed by the Learned Subordinate Judge, Patna, in Title (Partition) Suit No. 7 of 1945. The judgment and decree of the trial court was confirmed by the lower appellate court in Title Appeal No. 144 of 1991. The plaintiff - respondent no.1 filed a suit for partition of 18 kathas and odd lands bearing plot nos. 28 and 29 with double and single storeyed house in Kadamkuan, Patna. The trial court passed a preliminary decree on 26.4.1947 declaring the share of the plaintiff -respondent No. 1 to the extent of 8 annas 5 dams 2 kauries and 9 fauries. The Pleader Commissioner was, accordingly, appointed and after having confirmed the report of the Pleader Commissioner in the year 1948, the final decree was prepared. Being aggrieved by the said judgment and decree, an appeal was preferred which went upto the Supreme Court. Ultimately, the Supreme Court set aside the final decree and remitted the case back to the trial court for partition of the property in question by metes and bounds according to the respective shares of the parties. While setting aside the final decree the Supreme Court has also observed that the parties will get only blocks of property of the value they are actually entitled to. Pursuant to the direction of the Apex Court, one Kailash Pati Sahay was appointed Pleader Commissioner by the trial court, but unfortunately without submitting his report he died. The trial court thereafter appointed one Satya Narayan Singh, another Pleader Commissioner who had subsequently returned the writ and, accordingly, again one Shivanand Sinha was appointed Advocate Commissioner, who after taking into consideration the relevant materials on record, submitted a report on 1.8.1986 along with sketch mat including field book and valuation charg. Defendant no.5 thereafter filed an appeal against the order dated 30.11.1987 passed by the trial court wherein various objections including report of the Pleader Commissioner were raised. However, the appellate court while disposing of the objections directed the parties to raise objections including the Pleader Commissioner report before the trial court, and if such objection is raised, the trial court will decide the issue, taking into consideration all aspects of the matter in accordance with law. The High Court with consent of the parties fixed 5.12.1988 for appearance of the parties before the trial court when objection to the Pleader Commissioner report will be considered. The trial court was further directed to dispose of the matter by 23.12.1988 without allowing routine adjournment sought for on behalf of the parties in view of the fact that the suit is of the year 1945. Admittedly, the appellants and other respondents including the defendants who had filed civil revision application before this Court, did not appear in spite of the specific direction issued by this Court to appear before the trial court on the date fixed with consent of the parties. From the materials on record, it further appears that in spite of the information given, the learned lawyer appearing on behalf of the defendants refused to receive the petition filed by the plaintiff in the court below on the date fixed by the High Court. The trial court, accordingly, fixed the next date for hearing of the suit on 6.12.1988 but suprisingly even on the adjourned date none of the defendants including the appellants appeared before the trial court. However, the counsel appearing on behalf of the defendants were informed who, no doubt, appeared in the trial court and asked for one day adjournment in order to take instructions from his client. Accordingly, the prayer was allowed and the case was adjourned to 7.12.1988. Even on 7.12.1988 none of the defendants appeared and the lawyer appearing on their behalf expressed his inability to proceed with the matter. The plaintiff filed an affidavit to the effect that Arbind Krishna, one of the defendants, who had filed civil revision application before this Court, was residing in a portion of the suit house along with his family members and he was present in court on 7.12.1988. Learned Subordinate Judge again adjourned the matter for hearing of the suit with respect to the objection filed on the Pleader Commissioner report on 8.12.1988 with an observation that no further time would be allowed to any of the parties on any ground whatsoever. Even in spite of pre -emptory direction, none of the defendants appeared on 8.12.1988. The trial court heard the learned counsel for the plaintiff on the objection of the Pleader Commissioner report on 8.12.1988 and after having heard, confirmed the Pleader Commissioner report as none has appeared to raise any objection on the said report. Ultimately the trial court passed an order for preparation of final decree with a direction that the said Pleader Commissioner report will form part of the decree. The appellants, being aggrieved by the judgment and final decree passed by the trial court preferred an appeal before the lower appellate court challenging the decree on the ground that the trial court has wrongly accepted the Pleader Commissioner report without taking into consideration the objection filed on their behalf. It was further contended that the decree was passed against a dead person including the minors without appointing guardian ad litem. The lower appellate court has rejected the submission of the appellants on the grounds that the heirs of the deceased have already been substituted in the year 1971 but because of clerical mistake it was amended on 20.5.1992. In this connection it was submitted that the final decree was prepared on 5.12.1991. The second submission was also rejected on the ground that the father of the minors were already on record. The lower appellate court has also observed that minor Ajay Kumar has attained majority on the date when the final decree was sealed and signed by the trial court. The lower appellate court dismissed the appeal by its judgment and affirmed the final decree passed in the aforesaid partition suit. Hence this second appeal.

(2.) MR . Sidheshwari Prasad Singh, learned Senior Advocate, appearing on behalf of the appellants, has reiterated the objection raised before the lower appellate court. He further submitted that the courts below have completely ignored the direction of the Supreme Court as well as the order passed by the High Court while disposing of the civil revision application and, as such, the judgment and decree passed by the courts below is vitiated in law. It is further submitted that even if the appellants did not appear, the court below was bound to consider the objection filed on the Pleader Commissioner report. The trial court having not considered the objection in accordance with law and, as such, this Court can interfere with the final decree passed by the courts below. It is further submitted that the amended final decree is vitiated as it has been done without notice to the concerned parties. It is submitted that the alleged substituted service without complying the provisions of Order V, rule 21 C.P.C. cannot be deemed to be a valid service. That apart Mr. Sinha challenged the judgment and final decree as well on merit, in asmuch as, it is submitted that the plaintiff was given more property than what he was actually entitled to. In support of his contention, learned counsel relied upon a decision in the case of Smt. Sushila Devi vs. Smt. Madhuri Prasad and others reported in 1980 BBCJ 374, wherein it has been held that the decree cannot be amended without serving notice to the party concerned. The decision cannot help the appellants in view of the fact that in spite of the best efforts the defendants did not appear, as a result of which notice was published in one of the Newspapers. In that view of the matter, it is not open for the defendants to say that the final decree was amended without notice to them. From the materials on record it appears that in the instant case there is no amendment of the decree with respect to the suit property and/or interest of any of the parties. The amendment was only to the effect that the parties made in the plaint after substitution were not taken into consideration while preparing the final decree and the parties who were in the preliminary decree were mentioned in the final decree. So far as the direction issued by the Supreme Court it is apparent that while remanding the case to the appellate court it was observed that the parties should be allotted property of the value they are entitled to. Further direction was that the distribution of the un -built portion can easily be resorted to so that the parties get blocks of the property according to the value of their shares. Mr. Sinha then referred to a decision in the case of Jagdish Singh vs. Nathu Singh reported in AIR 1992 SC 1604, wherein the Apex Court has held that the High Court in second appeal can interfere with the concurrent findings of facts when recorded without taking into consideration the relevant evidence available on record. In this case, as stated above, the trial court as well as the lower appellate court had considered the evidence on record including the objections filed by the defendants against the Pleader Commissioner report. In spite of sufficient opportunity given to the defendants, they did not prefer to appear for the reasons best known to them and in terms of the direction issued by the High Court, the trial court had no alternative but to dispose of the matter in terms thereof. Similar view has been taken in the case of Haquik Mian vs. Rajendra Prasad reported in 1(1996) CLT 422, and AIR 1987 SC 1484. (Budhwanti and others vs. Gulab Chand Prasad). In the facts and circumstances of the case, therefore, it cannot be said that the findings recorded by the courts below are vitiated due to non - consideration of material evidence.

(3.) HAVING regard to the concurrent findings of facts recorded by the courts below and having further regard to the fact that the direction issued by the High Court as well as the Apex Court have been strictly followed while passing the final decree, this Court, sitting in second appeal, cannot interfere with the same particularly in view of the law laid down by the Division Bench of this Court in the case of Jugeshwar Singh and another vs. Rijhan Singh and others reported in AIR 1938 Patna 104, wherein it has been held that even in first appeal against the final decree in a partition suit, the High Court can only consider the question of law and principle and will not interfere with the concurrent findings of facts recorded by the courts below.