RAMANUJ TIWARY SON OF LATE PANDIT RAJESHWAR TIWARY, RESIDENT OF VILLAGE AND PO HARINAMANR, PS Vs. RABINDAR TIWARY, SON OF LATE RAJESHWAR TIWARY

JUDGEMENT

(1.) - Legality of the order dated 22.02.2016 passed by the District Judge-III, Palamau in Title Appeal No. 59 of 2007 has been challenged by the petitioners whereby and wherein a petition filed by the defendant-petitioners in the appellate court for grant of time has been rejected with cost of Rs.3,000.00.

(2.) A brief fact of the case is necessary to discuss for better appreciation of the issue involved in this writ petition: At the instance of plaintiff Byomkesh Tiwari-the husband of the present respondent no. 2 and father of respondent no. 3, a partition suit bearing no. 57 of 1970 was filed for partition of the ancestral lands and the said partition suit was decreed by judgment and preliminary decree dated 12.06.1976. Even though the plaintiff preferred First Appeal bearing no. 48 of 1996 (R) at Patna (Ranchi Bench). In the said appeal, the defendant nos. 1 and 2 the present petitioners filed a cross-objection. The Honourable Court allowed the appeal by judgment and decree dated 23.11.1984. The cross-objection was also allowed in part. Accordingly, the decree was modified in terms of the judgment of appellate court. Thereafter, a petition was filed by the plaintiff in the trial court for appointment of Pleader Commissioner for carving out Takhta and the share of the plaintiff and defendants also filed a petition for carving out their Takhtas. The court concerned directed to appoint a Pleader Commissioner. In the year 1987, it was detected by the present petitioner that somebody has made interpolation in description of the land as mentioned earlier in the plaint of Partition Suit No. 57 of 1970 with pen without the permission of the court.

(3.) After the disposal of the above Partition Suit, one Pavitri Devi wife of present appellant no.-1 filed a separate Suit bearing Title Suit no. 81 of 1987 against the present respondents but the aforesaid suit was dismissed and the appeal filed against the said judgment and decree was also dismissed. Thereafter, Second Appeal was preferred against the judgment of First Appellate Court, which is still pending for final hearing. In the earlier execution case, direction was given by the executing court to the Pleader Commissioner to make the partition and allot Takhtas according to the right declared in preliminary decree and the Pleader Commissioner submitted his report on 14.08.1996 against which the present petitioners filed their objections. Respondent no.1 also filed his objection. The trial court by its order dated 20.07.2007 after confirming the report of Pleader Commissioner passed the final decree in Partition Suit no. 57 of 1970 against which, the present respondent no.1 preferred the Partition Appeal No. 59 of 2007. In the appeal against the final decree, a petition was filed at the instance of the respondent-petitioner on 02.02.2016 praying therein for grant of 15 days adjournment on the ground that the appellant of the appeal against final decree during trial of T.S. No. 81 of 1987 had admitted that the land and house built over the Plot nos. 391 and 392 of Khata no. 252 of village Polpolkala was the self-acquired property of Smt. Pavitri Devi and had also accepted her exclusive right, title and possession and as such the certified copy of those documents containing the admission of the appellant-respondents have to be obtained from his counsel of the Honourable High Court but as the prayer was rejected by impugned order, the petitioners preferred this writ.