SANJIV PRASAD Vs. JITENDRA KUMAR

JUDGEMENT

(1.) The present petition has been filed under Article 227 of the Constitution of India and is directed against the operative part of the order dtd. 25/1/2017 passed in Title Suit No. 174 of 1969 by learned Sub Judge-II, Hilsa.

(2.) Briefly stated, the facts of the case are that originally Keowli Devi Devi and Rohni Devi filed a suit for partition against their cousin Harihar Mahto and his son Radha Krishna Prasad and descendants and other cousins Wazir Mahto, Dhalu Mahto and Mahabir Mahto. The plaintiffs also impleaded their full sisters Sukni Devi and Mangri Devi as defendant nos. 16 and 17. The said suit was filed on 17/12/1969 in the court of learned 2nd Additional Sub-Judge, Biharsharif, Nalanda as Title Suit No. 174 of 1969/34 of 1974. The defendants appeared and filed their written statement and contested the suit. During the pendency of the suit some of the defendants died and their heirs were substituted and in the same manner after death of original plaintiffs their legal heirs/representatives came on record. The suit of the plaintiffs was filed for the following reliefs:-

(3.) Thereafter, the learned Additional Sub Judge-II, Hilsa decreed the suit vide judgment dtd. 23/12/1982 and passed the following order "It is therefore ordered that the suit be decreed against the contesting defendants and ex-parte against the rest with cost. The plaintiffs are directed to take necessary steps for appointment of survey knowing Pleader Commissioner so that their separate Takhta of their share be carved out. Let the preliminary decree be drawn up accordingly. It is further ordered that the alleged four deeds of gift dtd. 12/5/1969 are forged and fabricated are not binding on the plaintiffs." In terms of direction of the learned court, the preliminary decree was drawn up and sealed and signed on 7/1/1983. The defendants Harihar Mahto and others being aggrieved by the said judgment dtd. 23/12/1982 preferred First Appeal No. 161 of 1983 before this Court against the plaintiffs and defendant nos. 16 and 17 impleading them as respondents in the appeal. On the other hand, as per order and direction of the learned court below, the plaintiffs filed petition for appointment of survey knowing Pleader Commissioner. Sri Vishnudeo Prasad Singh, learned Advocate was appointed as Pleader Commissioner for effecting the partition and to carve out separate Takhta of the plaintiffs in respect of their share 16 paisa in the joint properties detailed in Schedule I and II of the plaint. The writ of appointment to the Pleader Commissioner was issued on 8/5/1985 and he started the work of commission. During the pendency of the final decree proceedings, the original plaintiffs died and in their place their heirs/legal representatives were substituted, who are the respondents before this Court. Similarly, Radha Krishna Prasad and other defendants also died and their heirs were substituted. But in the cause title the name of Bhola Mahto and Radha Krishna Prasad continued to appear. The learned Pleader Commissioner prepared a report dtd. 3/7/1998, i.e., 13 years after issuance of writ, which was subsequently filed in the learned trial court. The defendant nos. 1, 2, 10 and 13 jointly filed an objection petition dtd. 15/5/1999 in the court of learned Sub Judge-I, Hilsa with prayer to set aside the report of the Pleader Commissioner. Thereafter, on 2/2/2016 the petitioner/substituted defendant no. 13(d) also filed petition for filing objection to the report of survey knowing Pleader Commissioner dtd. 3/7/1998. Thereafter, on 9/2/2016 petitioner/defendant no. 1 filed his objection on the report of survey knowing Pleader Commissioner with prayer to set aside the report. After filing of objections dtd. 15/5/1999, the case was transferred to the court of learned Sub Judge-II, Hilsa and after hearing the parties on objection petition dtd. 10/2/2016, the learned Sub Judge-II, Hilsa passed the impugned order dtd. 25/1/2017 accepting the report of the Pleader Commissioner and the learned Sub Judge further passed the order directing the objectors to put themselves and other parties in possession as per share allotted by survey knowing Pleader Commissioner. The said order has been challenged before this Court.