RAMCHANDRA RAM Vs. SUMITRA DEVI

JUDGEMENT

(1.) The instant petition is filed under Article 227 of the Constitution of India directed against the order dtd. 28/6/2024 passed by learned Sub-Judge-II, Ranchi in M.C.A. No. 1434 of 2023 arising out of Execution Case No. 06 of 2003 whereby and whereunder the petition filed on behalf of the petitioners under Order XXI Rule 26 and 97 has been rejected. Factual Matrix:

(2.) The brief facts as per the pleadings is required to be enumerated as hereinunder: The petitioners purchased property being Khata No. 253 and after purchase of aforesaid property, petitioners from reliable sources learnt that one partition suit being Partition Suit No. 251 of 1983 was filed by Sumitra Devi and Chattan Devi in the Court of Special Sub Judge, Ranchi against Ratni Devi and others and these petitioners were not made as necessary party in the aforesaid Partition Suit No. 251 of 1983. Further, the Khata No. 253 is recorded in the name of Santok Mahto, Shiv Narayan Mahto and Shalik Mahto, in the R.S. Record of right measuring total comparison area 13.29 acres. In the year 1961, the Government acquired 1.12 acres of land under Khata No. 253 and in question has been partly acquired by the State. Morever, in remarks Column of Khata No. 253, the 1.12 acres of land which were acquired by the Government was mentioned under the kabjwari of Sahlik Mahto. After the deduction of 1.12 acres, total measuring land remain balance 12.17 acres and all the recorded raiyat Santok Mahto, Shiv Narayan Mahto and Shalik Mahto having equal share i.e. 1/3rd over the entire land. The Shalik Mahto was also entitle to get 1/3rd share over the entire land under Khata No. 253 out of balance remaining land 12.17 acres. It is the case of the petitioners that decree holders and defendant no. 1 and 2 were well-acquired knowledge that the Ratni Devi sold 1.43 1/2 acres of land in favour of Nanki Devi, Ramchandra Ram and Dilranjan Ram and despite of that the petitioners were not made necessary parties by the decree holders/plaintiffs in Partition Suit No. 251 of 1983. On perusal of the plaint of the Partition Suit No. 251 of 1983 it would be evident that during the pendency of the proceeding all the legal heirs of recorded raiyat of Khata No. 253 were made as necessary party. These plaintiffs failed to incorporate or to add the entire properties 12.17 acres of land of Khata No. 253 which was not mentioned in the plaint nor mentioned in the schedule of the plaint. Further, the preliminary decree passed in Partition Suit No. 251 of 1983 the purchased property of the petitioners beside many other property sold by Ratni Devi were allotted to the Ratni Devi and Nanki Devi besides 36 decimals of land as their joint share after calculating the entire area of the Khata No. 253. The pleader Commissioner intentionally allotted these property which were allotted to Nanki Devi and Ratni Devi which were erroneously and illegally allotted to Sumitra Devi and Chattan Devi as their share which was absolutely against the verdict of Preliminary Decree passed by the then Special Sub Judge. On perusal of the schedule of the plaint, it would be transpired that the land measuring in an area 1.12 acres under bakabje shown in the name of Shalik Mahto which were acquired by the government which is included in the schedule of the plaint. As per the Khatiyan land shown bakabje of Shalik Mahto measuring in an area 3.53 acres out of which 1.12 acres acquired by the government and balance land remaining 2.41 acres. Neither the Nanki Devi, the mother of the petitioners nor these petitioners have or had any knowledge or notice about the preparation of final decree as well regarding passed of the final decree passed in the Partition Suit Case No. 251 of 1983. Thereafter, the applicants/petitioners have got the knowledge of the same only when the Civil Court Nazir went to the spot for execution of the decree. As soon as the petitioners learnt about the aforesaid final decree and execution case immediately made contact with their advocate and also filed a Title Suit No. 159 of 2007 against Sumitra Devi and Chattan Devi and Others, but the same has been withdrawn and thereafter, the petitioners/applicants filed a fresh suit being Original Suit (Title) No. 57 of 2020 which is pending in the Court of Civil Judge Sr. Division-XIV, Ranchi. Further, the petitioners in order to stay the proceedings of Execution Case No. 06 of 2003 till disposal of the Original Suit (Title) No. 57 of 2020 had filed the application under Order XXI Rule 26 and 97 but the same was dismissed vide order dtd. 28/6/2024, against which the instant petition is preferred.

(3.) It is evident from the factual aspect that a suit for partition was filed being Partition Suit No. 251 of 1983. The preliminary decree was passed therein in which the suit property has been partitioned. Subsequent thereto, the final decree was prepared on 7/9/1992. This execution case has been filed sometime in the year 2003, prior to completion of the period of 12 years.