Patna High Court
Sudha Devi And Ors vs Neeraj Kumar And Ors on 21 August, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.452 of 2017
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1. Sudha Devi, wife of Late Kashi Naresh Singh,
2. Sanjiv Kumar Singh,
3. Mrityunjay Kumar Singh, Both sons of Late Kashi Naresh Singh,
4.1. Shailendra Kumar Singh, Son of late Ram Naresh Singh, Resident of
Village- Bankatwa, Ward no. 19, P.S. Bagaha, District-West Champaran.
4.2. Narendra Kumar Singh, Son of late Ram Naresh Singh, Resident of Village-
Bankatwa, Ward no. 19, P.S. Bagaha, District-West Champaran.
4.3. Madhurendra Kumar Singh, Son of late Ram Naresh Singh, Resident of
Village- Bankatwa, Ward no. 19, P.S. Bagaha, District-West Champaran.
4.4. Punam Singh, Wife of Brijesh Singh and D/o of late Ram Naresh Singh,
Resident of EWS-209, Rapti Nagar 1st Phase, P.O. Arogya Mandir, P.S.
Shahpur, (U.P.)-273003.
4.5. Madhu Singh, Wife of Rajeev Kumar Singh, D/o of late Ram Naresh Singh,
R/o H.N.-144, A Jatepur Colony, Gorakhpur, P.O. and P.S. and District-
Gorakhpur (Uttar Pradesh-273001).
5. Awadh Naresh Singh,
6. Kaushal Naresh Singh, Petitioners no.4 to 6 are sons of Late Lalan Singh,
All are resident of Village- Bankatwa, P.O. and P.S.- Bagaha, District- West
Champaran.
... ... Petitioner/s
Versus
1. Neeraj Kumar
2. Gyanendra Singh,
Both sons of Sri Chandraketu Singh,
3. Archana Singh,
4. Amrita Singh,
Both daughters of Sri Chandraketu Singh, Respondents No.1 to 4 are
resident of Village- Sandibuzzura, P.O.- Sindhuwa, District- Kushinagar U.P.
5. Shakuntala Singh, W/o Sri Awadhesh Singh, At Mohalla- Bilandpur, P.O.
and District- Gorakhpur U.P.
6. Pushpa Singh, W/o Sri Arvind Shahi, At Mohalla- Shivpur, P.O. and P.S.-
Gorakhpur, District- Gorakhpur U.P.
7. Ravi Pratap Singh, S/o Yogendra Singh, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
8. Surya Pratap Singh, S/o Yogendra Singh, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
9. Bhim Pal, S/o Dulal Pal, Resident of Village- Gaunaria, P.O.- Mithhaura,
District- Maharajganj U.P.
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10. Damodar Pal, S/o Dulal Pal, Resident of Village- Gaunaria, P.O.- Mithaura,
District- Maharajganj U.P.
11. Bishun Devi, W/o Late Shivdhani Shahi, Resident of Village- Parwania, P.O.
and P.S.- Siswa Bazar, District- Maharajganj U.P.
12. Jashoda Devi, W/o Thakur Singh, Resident at P.O.P.S.- Siswa Bazar,
District- Maharajganj U.P.
13. Bijay Kumar Devi @ Jagdamba Devi, D/o Palakdhari Singh, W/o Bhagwan
Singh, at Kanauli, P.O.- Kanauli, P.S.- Rudrapur, District- Deoria U.P.
14. Guddi Kumari, D/o Palakdhari Singh, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
15. Ram Pratap Singh, S/o Late Palakdhari Singh @ Pandit Singh, Resident of
Village- Bankatwa, P.O.P.S.- Bagaha, District- West Champaran.
16. Shail Devi, Wife of late Rudra Pratap Singh, Resident of Village- Bankatwa,
1. Ward no. 19, P.O. and P.S.-Bagaha, District-West Champaran.
16. Archana Singh, Wife of late Jitendra Singh and D/o late Rudra Pratap Singh,
2. Resident of - Anandpur, Patna.
16. Shakshi Singh, W/o Rajesh Singh and D/o of late Rudra Pratap Singh, R/o
3. Village- Raghunathpur, P.O. Khaira Bazar, District- Chhapra- 841414.
16. Sivangi Singh, W/o Pankaj Singh and D/o of late Rudra Pratap Singh, R/o
4. Village- Raghunathpur, P.O. Khaira Bazar, District- Chhapra-841414.
16. Manoranjan Singh, Son of late Rudra Pratap Singh, Resident of Village-
5. Bankatwa, Ward No. 19, P.O. and P.S.- Bagaha,District- West Champaran.
16. Ravi Ranajn Pratap Singh, Son of late Rudra Pratap Singh, Resident of
6. Village- Bankatwa, Ward No. 19, P.O. and P.S.- Bagaha, District- West
Champaran- 845101.
17. Ranvir Singh @ Ekbal Ji Singh, S/o Late Harihar Singh, Resident of
Village- Bankatwa, P.O.P.S.- Bagaha, District- West Champaran.
18. Randhir Singh @ Gopal Ji Singh, S/o Late Harihar Singh, Resident of
Village- Bankatwa, P.O.P.S.- Bagaha, District- West Champaran.
19. Niranjan Singh, S/o Late Jamindra Singh, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
20. Rajeshwar Singh, S/o Late Jamindra Singh, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
21. Mosmat Sulochana Devi, W/o Late Pashupati Singh, Resident of Village-
Bankatwa, P.O.P.S.- Bagaha, District- West Champaran.
22. Ashok Kumar Singh, S/o Late Pashupati Singh, Resident of Village-
Bankatwa, P.O.P.S.- Bagaha, District- West Champaran.
23. Manoj Kumar Singh, S/o Late Pashupati Singh, Resident of Village-
Bankatwa, P.O.P.S.- Bagaha, District- West Champaran.
24. Sudhir Kumar Singh, S/o Late Budhu Paswan, Resident of Village-
Bankatwa, P.O.P.S.- Bagaha, District- West Champaran.
25. Asha Devi, W/o Sri Mrigendra Singh, Resident of village- Pirahni, P.O.P.S.-
Barhalganj, District- Gorakhpur U.P.
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26. Manorma Chand, W/o Dinesh Chand, Resident of Bhitti, P.O.- Dhakwa
Bazar, P.S.- Shikarganj, District- Gorakhpur U.P.
27. Birendra Pathak, S/o Late Rudra Narain Pathak, Resident of Gudari Bazar,
P.O.P.S.- Bagaha, District- West Champaran.
28. Umesh Pathak, S/o Late Rudra Narain Pathak, Resident of Gudari Bazar,
P.O.P.S.- Bagaha, District- West Champaran.
29. Umesh Singh, S/o Late Sobhat Singh, Resident of Village- Harpur, P.O.-
Harpur, P.S.- Pipiganj, District- Gorakhpur U.P.
30. Suresh Singh, S/o Late Sobhat Singh, Resident of Village- Harpur, P.O.-
Harpur, P.S.- Pipiganj, District- Gorakhpur U.P.
31. Kishor Chaudhari, S/o Balirajj Chaudhari, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
32. Manager Sah, S/o Late Harihar Sah, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
33. Laltii Devi, D/o Late Parmeshwar Ram, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
34. Paras Singh, S/o Jangi Singh, Resident of Village- Bishwas, P.O.- Turhapatti,
P.S.- Chandpatia, District- West Champaran.
35. Krishna Kumari, D/o Rajendra Singh, at present Residing Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
36. Banarasi Devi, W/o Rudra Pratap Singh, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
37. Sumitra Devi, D/o Rudra Pratap Singh, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
38. Pramila Devi, S/o Rudra Pratap Singh, Resident of Village- Bankatwa,
P.O.P.S.- Bagaha, District- West Champaran.
39. Ramadhar Chaudhari, S/o Chhedi Chaudhari, Resident of Village- Bagaha,
P.O.P.S.- Bagaha, District- West Champaran.
40. Krishna Mohan Sinha, S/o Late Muneshwar Sinha, Resident of Village-
Naraipur, P.O.- Naraipur, P.S.- Bagaha, District- West Champaran.
41. Madanji Sinha, S/o Late Muneshwar Sinha, Resident of Village- Naraipur,
P.O.- Naraipur, P.S.- Bagaha, District- West Champaran.
42. Rama Shankar Singh, son of Late Jagat Singh,
43. Vijay Bahadur Singh, son of Rama Shankar Singh,
44. Vinay Bahadur Singh, son of Rama Shankar Singh, Respondents no. 42 to
44 are resident of village- Bankatwa, P.O. and P.S.- Bagaha, District- West
Champaran.
... ... Respondent/s
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with
CIVIL MISCELLANEOUS JURISDICTION No. 735 of 2023
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Patna High Court C.Misc. No.452 of 2017 dt.21-08-2025
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1. Most. Sudha Devi Wife of Late Kashi Naresh Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
2.1. Shailendra Kumar Singh, Son of late Ram Naresh Singh, Resident of
Village- Bankatwa, Ward No. 19, P.S. Bagaha, District- West Champaran.
2.2. Narendra Kumar Singh, Son of late Ram Naresh Singh, Resident of Village-
Bankatwa, Ward No. 19, P.S. Bagaha, District- West Champaran.
2.3. Madhurendra Kumar Singh, Son of late Ram Naresh Singh, Resident of
Village- Bankatwa, Ward No. 19, P.S. Bagaha, District- West Champaran.
2.4. Punam Singh, Wife of Brijesh Singh and D/o of late Ram Naresh Singh,
Resident of -EWS-209, Rapti Nagar, 1st Phase, P.O. Arogya Mandir, P.S.
Shahpur, (U.P). 273003.
2.5. Madhu Singh, Wife of Rajeev Kumar Singh and D/o of late Ram Naresh
Singh, R/o- H.N.-144 A Jatepur Colony, Gorakhpur, P.O. and P.S.and
District- Gorakhpur (Uttar Pradesh- 273001).
3. Sanjeev Kumar Singh Son of Late Kashi Naresh Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
4. Mritunjay Kumar Singh Son of Late Kashi Naresh Singh Resident of
Village-Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
5. Awadh Naresh Singh Son of Late Lallan Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
6. Kaushal Naresh Singh Son of Late Lallan Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
... ... Petitioner/s
Versus
1. Ravi Pratap Singh Son of Yogendra Singh Resident of Village-Bankatwa,
P.O. and P.S.-Bagaha, District-West Champaran.
2. Surya Pratap Singh Son of Yogendra Singh Resident of Village-Bankatwa,
P.O. and P.S.-Bagaha, District-West Champaran.
3. Bhim Pal Son of Dulal Pal Resident of Village-Gaunaria, P.S.-Mithaura,
District-Maharajganj (U.P.)
4. Damodar Pal Son of Dulal Pal Resident of Village-Gaunaria, P.S.-Mithaura,
District-Maharajganj (U.P.)
5. Bishun Devi Wife of Late Shivdhani Shahi Resident of Village-Psarwania,
P.O. and P.S. Siswa Bazar, District-Maharajganj (U.P.)
6. Jashoda devi Wife of Thakur Singh At and P.O. and P.S.-Siswa Bazar,
District-Maharajganj (U.P.)
7. Bijay Kumari Devi @ Jagdamba Devi Daughter of Late Palakdhari Singh,
Wife of Bhagwan Singh At -Kanauli, P.O.-Kanauli, P.S.-Rudrapur, District-
Deoria (U.P.)
8. Guddi Kumari D/o Late Palakdhari Singh R/o Village- Bankatwa, P.O. and
P.S.-Bagaha, District-West Champaran.
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9. Ram Pratap Singh Singh of Late Palakdhari Singh R/o Village- Bankatwa,
P.O. and P.S.-Bagaha, District-West Champaran.
10. Shail Devi Wife of Late Rudra Pratap Singh R/o Village- Bankatwa, P.O.
and P.S.-Bagaha, District-West Champaran.
11. Archana Singh Wife of Late Jitendra Singh R/o Village- Bankatwa, P.O. and
P.S.-Bagaha, District-West Champaran.
12. Sakshi Singh Wife of Rajesh Singh Resident of Raghunathpur P.O. Khaira
Bazar, District-Chhapra.
13. Sivangi Singh Wife of Pankaj Singh Resident of Raghunathpur P.O. Khaira
Bazar, District-Chhapra.
14. Manoranjan Singh Son of Late Rudra Pratap Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
15. Ravi Ranjan Pratap Singh Son of Late Rudra Pratap Singh Resident of
Village- Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
16. Mosmat Sarala Kuer Wife of Late Bishwanath Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
17. Ranvir Singh @ Ekbal ji Singh Resident of Village- Bankatwa, P.O. and
P.S.-Bagaha, District-West Champaran.
18. Randhir Singh @ Gopal Ji Singh Son of Late Harihar Singh Resident of
Village- Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
19. Krishna Kumari Singh Daughter of Late Harihar Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
20. Shail Kumari Singh Daughter of Late Harihar Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
21. Niranjan Singh Son of Late Jamindar Singh Resident of Village- Bankatwa,
P.O. and P.S.-Bagaha, District-West Champaran.
22. Rajeshwar Singh Son of Late Jamindar Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
23. Ashok Kumar Singh Son of Late Pashupati Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
24. Manoj Kumar Singh Son of Late Pashupati Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
25. Sudhir Kumar Singh Son of Late Pashupati Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran.
26. Asha Devi Wife of Sri Mrigendra Singh Resident of Village-Pirhani, P.O.
and P.S.-Barhalganj, District-Gorakhpur (U.P.)
27. Manorama Chand Wife of Dinesh Chand Resident of Bhitti, P.O.-Dhakwa
Bazar, P.S.-Shikarganj, District-Gorakhpur (U.P.)
28. Birendra Pathak Son of Late Rudra Narain Pathak Resident of Village-
Gudari Bazar, P. and P.S.-Bagaha, District-West Champaran
29. Umesh Pathak Son of Late Rudra Narain Pathak Resident of Village- Gudari
Bazar, P. and P.S.-Bagaha, District-West Champaran
30. Umesh Singh Son of Sohbat Singh Resident of Village- Harpur, P.O.-Harpur,
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P.S.-Pipiganj, District-Gorakhpur (U.P.)
31. Suresh Singh Son of Sohbat Singh Resident of Village- Harpur, P.O.-Harpur,
P.S.-Pipiganj, District-Gorakhpur (U.P.)
32. Koshor Chaudhari Son of Baliraj Chaudhari Resident of Village- Bankatwa,
P.O. and P.S.-Bagaha, District-West Champaran
33. Manager Sah Son of Late Harihar Sah Resident of Village- Bankatwa, P.O.
and P.S.-Bagaha, District-West Champaran
34. Lalti Devi Daughterof Late Parmeshwar Ram Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran
35. Paras Singh Son of Jangi Singh Resident of Village- Bishwas, P.O.-
Turhapatti, P.S.-Chanpatiya, District-West Champaran.
36. Krishna Kumari Daughter of Rajendra Singh At Present Residing at Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran
37. Sumitra Devi Daughter of Rudra Pratap Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran
38. Pramila Devi Daughter of Rudra Pratap Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District-West Champaran
39. Ramdhar Chaudhari Son of Chhedi Chaudhari Resident of Bagaha, P.O. and
P.S.-Bagaha, District-West Champaran.
40. Krishna Mohan Sinha Son of Late Muneshwar Sinha Resident of Village-
Naraipur, P.O. Naraipur, P.S.-Bagaha, District-West Champaran.
41. Madan Ji Sinha Son of Late Muneshwar Sinha Resident of Village-
Naraipur, P.O. Naraipur, P.S.-Bagaha, District-West Champaran.
42. Rama Shankar Singh Son of Late Jagat Singh, Cashier Punjab National
Bank, Bagaha, Resident of Village-Bankatwa, P.O. and P.S.-Bagaha,
District- West Champaran.
43. Bijay Bahadur Singh Son of Ramashankar Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District- West Champaran.
44. Vinay Bahadur Singh Son of Ramashankar Singh Resident of Village-
Bankatwa, P.O. and P.S.-Bagaha, District- West Champaran.
45. Niraj Kumar Singh Son of Late Shanti Devi and Chandra Ketu Singh
Resident of Village-Sandi Bazzura, P.O.-Sindhuwa, Distirct-Kushi Nagar
(U.P.)
46. Archana Singh Daughter of Late Shanti Singh and Late Chandra Ketu Singh
Resident of Village-Sandi Bazzura, P.O.-Sindhuwa, Distirct-Kushi Nagar
(U.P.)
47. Gajendra Singh Son of Late Shanti Singh and Late Chandra Ketu Singh
Resident of Village-Sandi Bazzura, P.O.-Sindhuwa, Distirct-Kushi Nagar
(U.P.)
48. Ranjana Singh Son of Late Shanti Singh and Late Chandra Ketu Singh
Resident of Village-Sandi Bazzura, P.O.-Sindhuwa, Distirct-Kushi Nagar
(U.P.)
... ... Respondent/s
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======================================================
Appearance :
(In CIVIL MISCELLANEOUS JURISDICTION No. 452 of 2017)
For the Petitioner/s : Mr. Ganpati Trivedi, Sr. Advocate
Mr. Mritunjay Kumar, Advocate
Mr. Saurabh Suman, Advocate
Mr. Madan Mohan, Advocate
For the Respondents 42 to 44 : Mr. Khursheed Alam, Advocate
Md. Faiz Ahmad, Advocate
(In CIVIL MISCELLANEOUS JURISDICTION No. 735 of 2023)
For the Petitioner/s : Mr. Ganpati Trivedi, Sr. Advocate
Mr. Mritunjay Kumar, Advocate
Mr. Saurabh Suman, Advocate
Mr. Madan Mohan, Advocate
For the Respondents 42 to 44 : Mr. Khursheed Alam, Advocate
Md. Faiz Ahmad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 21-08-2025
In both the cases, subject matter is the same and the
issues are interrelated, as such, they have been heard together
and are being disposed of by this common judgment.
Civil Misc. No.452 of 2017
2. The instant petition is directed against the order
dated 04.02.2017 passed in Final Decree Case No. 02/2003
arising out of Title Suit No. 382/1974 by learned Sub Judge-1,
Bagaha, West Champaran on applications dated 22.04.2013 and
17.02.2016
filed by the defendant nos. 41 to 43/respondent
nos.42 to 44 whereby and whereunder the learned Sub Judge
ordered for carving out 2 katha 8 dhur of land as per the sale
deeds of defendant nos. 41 to 43/respondent nos. 42 to 44 within
one month by the Survey Knowing Pleader Commissioner.
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Civil Misc. No.735 of 2023
3. The instant petition is directed against the order
dated 17.04.2023 passed by the learned Sub Judge-1, Bagaha,
West Champaran in Final Decree Case No.02/2003 by which the
learned Sub Judge rejected the application of the petitioners
dated 07.03.2020 and also disposed of the application dated
16.03.2005 on the basis of the order passed in CWJC No.
2286/2013 dated 19.03.2013 wherein it has been directed that
right, title, interest and possession of opposite party nos. 41, 42
& 43 should be carved out and protected in Plot Nos.1696
having an area of 2 katha 8 dhur by measuring the same in
presence of local Circle Officer.
4. Shorn of unnecessary details, facts leading to
institution of the present civil miscellaneous petitions are that
one Title Suit No. 382 of 1974/ 23 of 1978 was filed by the
plaintiffs/petitioners for partition of their share in the properties
as described in Schedule I, II and III of the plaint. The suit was
decreed in part on 24.07.1978 in terms of compromise between
the plaintiffs and defendants 1st party and with contest against
defendant 2nd party. First Appeal No. 838 of 1978 was filed
before this Court by the plaintiffs and during the pendency of
this appeal, 2 katha and 8 dhur of land was sold in favour of
Patna High Court C.Misc. No.452 of 2017 dt.21-08-2025
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three persons, namely Rama Shankar Singh, Vijay Bahadur
Singh and Binay Bahadur Singh appertaining to Plot No.1696.
In this first appeal, a compromise petition by way of
interlocutory application I.A.No. 1669 of 2000, was filed jointly
by the plaintiffs and the defendants first party, submitting
therein that though the suit had been disposed of in terms of
compromise in the trial court but the parties had agreed to
certain changes in the allotment and thus prayer was made for
disposal of appeal in terms of compromise indicated in the
interlocutory application. All the parties to the appeal accepted
the judgment passed in this appeal and none challenged it. The
above-named purchasers filed petition seeking impleadment as
party respondents in the appeal in order to safeguard their
interest in view of fresh compromise between the plaintiffs and
defendants first party.
5. A supplementary affidavit to I.A.No. 1669/2000
was filed stating therein that the interest of the
caveator/intervener was very much safe and not at all affected
by the aforesaid compromise. Vide judgment dated 14.11.2000 ,
the first appeal was disposed of in terms of compromise as
against defendants/respondents 1st set and I.A.No.1669/2000
was made part of the decree. It was further made clear that the
Patna High Court C.Misc. No.452 of 2017 dt.21-08-2025
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right, title, interest and possession of the aforesaid purchasers in
respect of 2 katha 8 dhur land of Plot No. 1696 would not be
affected in any manner and the appeal was dismissed as against
the defendants/respondent nos. 9 to 11.
6. The plaintiffs filed a petition for preparation of
final decree on the basis of the compromise decree and made a
prayer to the learned trial court to prepare a final decree in
respect of suit land mentioned in detail in Schedule-II of the
petition which also included the land purchased by the present
petitioners.
7. Ultimately the Final Decree Case No. 02/2003
proceeded and the Pleader Commissioner had been appointed on
two occasions but the reports submitted thereupon before the
court concerned were not accepted and further fresh report was
called for by the learned trial court where final decree
proceeding had been taking place. On 28.09.2007 an application
was filed by defendant nos. 41 to 43 to drop the final decree
proceeding and to recall the earlier order dated 17.07.2007 in
the light of orders of this Court dated 14.11.2000 passed in F.A.
No. 838/1978. However, the said application filed by the
defendant nos. 41 to 43 was rejected vide order dated
29.07.2008 by the learned Subordinate Court and this order was
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challenged by the interveners/defendants before this Court in
Civil Revision No. 1671 of 2008 which was disposed of on
27.09.2011 by this Court holding therein that there was no
impediment in preparation of final decree pertaining to
compromise decree where specific allotments of the plots were
yet to be done and direction was given to the court below to
proceed in a final decree proceeding while keeping in view the
specific direction of this Court in paragraph no. 12 of the
judgment in First Appeal No. 838 of 1978 relating to the right,
title, interest and possession of the petitioners over their
purchased land of plot no. 1696 which was not to be affected in
any manner.
8. The final decree proceeding continued, but vide
order dated 16.11.2012, the learned trial court, in F.D. Case No.
02 of 2003, held that specific allotment of 2 katha 8 dhur of Plot
No. 1696 could not be granted in favour of the
purchasers/interveners because their lands were in several parts
and purchased by three separate sale deeds and the plaintiffs had
some construction as well as ingress and egress from the land
purchased by the interveners/defendants and, accordingly,
allotment of 2 katha 8 dhur of land purchased by them in their
favour had been rejected.
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9. The order dated 16.11.2012 came to be challenged
by the purchasers in CWJC No. 2286 of 2013 which was
allowed by this Court vide order dated 19.03.2013 and it was
held that considering all aspects, the order dated 16.11.2012 was
set aside with direction to the learned Subordinate Court to
determine 2 katha 8 dhur as per sale deeds of the petitioners by
appointing another pleader commissioner who could measure
the land as per sale deed of the petitioner.
10. Meanwhile, the decree holders/petitioners filed
an application under Section 4 of the Partition Act on
16.03.2005 praying to convey the said purchased land of Khata
No. 5 Kheshra No. 1696 measuring 2 katha 1 dhur after
receiving the consideration money. On 26.05.2005, pleader
commissioner was appointed. On 05.07.2013, SLP (Civil) No.
19206 of 2013, filed by the decree holders/petitioners against
the order dated 19.03.2013 passed in CWJC No. 2286 of 2013,
was dismissed. On 18.01.2014, petitioners filed objection on the
ground that before determining the land of purchasers purchased
during the pendency of the appeal, the court was required to
determine the respective share amongst co-sharers and, hence,
the claim for determination of purchasers land can only be
granted after determination amongst the co-sharers.
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11. Thereafter, the purchasers/defendant nos. 41 to
43, filed an application on 22.04.2013 for appointment of survey
knowing pleader commissioner to measure and determine 2
katha 8 dhur of land. The present petitioners filed their rejoinder
on 18.01.2014 to the petition dated 22.04.2013 contending
therein that the entire petition for exclusion of any portion of the
land from the ambit of the final decree is against the settled
principle of law and further that the proceeding of the final
decree is pending and entire land is to be demarcated and the
land of the co-sharer would be fixed as per preliminary decree
and the respondents have right to step into shoes of their
vendors provided that they paid ad valorem court fee and prayed
for adjudication of their claim. Under no circumstances, prayer
for exclusion of purchased land could be demanded because the
land allotted earlier to their vendor is still to be determined and
fixed and thereafter right of petitioners would accrue for
determination of land. On 17.12.2016, another petition was filed
by the respondent nos. 41 to 43 for disposal of their earlier
petition dated 22.04.2013.
12. Thereafter, vide order dated 04.02.2017, the
learned Subordinate Court allowed the application dated
22.04.2013 of the defendant nos. 41 to 43 in the light of
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previous direction of the High Court and directed the Advocate
Commissioner to submit his report after measuring the land of
the purchasers/ respondent nos. 42 to 44 against their sale deeds.
The order dated 04.02.2017 has been assailed by the petitioners
in Civil Misc. No. 452 of 2017.
13. On 02.11.2017, the Advocate Commissioner
appointed by the order dated 04.02.2017 submitted his report.
On 19.05.2018, respondent nos. 41 to 43 filed a rejoinder to the
petitioners’ application dated 16.03.2005 filed under Section 4
of the Partition Act. In continuation of the earlier petition dated
16.03.2005, the decree holders/petitioners filed a fresh
application on 07.03.2020 under Section 4 of the Partition Act,
1896 undertaking to purchase the area of the land sold to the
pendente lite purchasers which consisted of the pucca building,
pucca kitchen, some trees and passage of ingress and egress
belonging to the joint family property. Respondent nos. 42 to 44
did not file rejoinder to the said application but adopted their
earlier rejoinder. Vide order dated 17.04.2023, the learned
Subordinate Court declined to entertain the application under
Section 4 of the Partition Act in the light of previous orders
passed by this Court dated 14.11.2002 passed in First Appeal
No. 838 of 1978, order dated 27.09.2011 passed in Civil Review
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No. 1671 of 2000 and order dated 19.03.2013 passed in CWJC
No. 2286 of 2013 and thus dismissed the application of the
petitioners filed under Section 4 of the Partition Act.
14. Addressing the Court on both civil miscellaneous
petitions, Mr. Ganpati Trivedi, learned senior counsel appearing
on behalf of the petitioners, submitted that the impugned orders
are erroneous and the learned Subordinate Court did not
consider the facts and law in its true perspective. Since final
decree proceeding is still pending, application filed by the
petitioners under Section 4 of Partition Act is maintainable. Mr.
Trivedi further submitted that though the learned Subordinate
Court while rejecting the plea took the grounds that the High
Court passed a number of orders in favour of the defendant nos.
41 to 43 holding that right, title and interest of the purchasers in
respect of 2 katha and 8 dhur of land of Plot No.1696 is not
affected in any manner. But the allotted share of the vendor of
the defendant nos. 41 to 43 is yet to be carved out. So, no
delivery of possession has taken place. If the vendor has not
passed any title to defendant nos. 41 to 43, there is no question
of re-conveyance. Mr. Trivedi further submitted that the
respondents have yet to acquire title, though they might have
right but right and title are having different connotations. A title
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contains a number of rights. The respondent nos. 41 to 43 are
pendente lite purchasers and they only have inchoate right as
they have not perfected their title. Mr. Trivedi further submitted
that the orders of this Court or any other court cannot prevail
over the statutory provision. Section 4 of the Partition Act
provides for right of co-sharers and at the same time, also about
the rights of purchasers but the purchasers cannot claim a
particular piece of land unless that portion is allotted to their
vendors. Mr. Trivedi referred to Section 8 of the Transfer of
Property Act, which reads as under :
“8. Operation of transfer.–Unless
a different intention is expressed or
necessarily implied, a transfer of property
passes forthwith to the transferee all the
interest which the transferor is then capable
of passing in the property, and in the legal
incidents thereof.
Such incidents include, where the
property is land, the easements annexed
thereto, the rents and profits thereof accruing
after the transfer, and all things attached to
the earth;
and, where the property is
machinery attached to the earth, the
moveable parts thereof;
and, where the property is a house,
the easements annexed thereto, the rent
Patna High Court C.Misc. No.452 of 2017 dt.21-08-2025
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locks, keys, bars, doors, windows and all
other things provided for permanent use
therewith;
and, where the property is a debt or
other actionable claim, the securities
therefor (except where they are also for other
debts or claims not transferred to the
transferee), but not arrears of interest
accrued before the transfer;
and, where the property is money
or other property yielding income, the
interest or income thereof accruing after the
transfer takes effect”.
15. Thus, Mr. Trivedi submitted that the pendente lite
purchasers cannot claim title over their purchased property since
their right is still born. On the right of pendente lite purchasers,
Mr. Trivedi referred to the decision of the Hon’ble Supreme
Court in the case of Ramdas vs. Sitabai and others reported in
(2009) 7 SCC 444 wherein it has been held that a purchaser
cannot have a better title than what his vendor had. It has further
been held that without there being any physical formal partition
of an undivided landed property, a co-sharer cannot put a vendee
in possession although such a co-sharer may have a right to
transfer his undivided share. The Hon’ble Supreme Court placed
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reliance on a decision in the case of M.V.S. Manikayala Rao v.
M. Narasimhaswami reported in AIR 1966 SC 470 wherein in
paragraph 5 it has been held as under :
“5. … Now, it is well settled that
the purchaser of a coparcener’s undivided
interest in joint family property is not
entitled to possession of what he has
purchased. His only right is to sue for
partition of the property and ask for
allotment to him of that which on partition
might be found to fall to the share of the
coparcener whose share he had purchased.”
16. This finding was recorded placing reliance upon
the decision of the Hon’ble Supreme Court in the case of
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh
reported in AIR 1953 SC 487 wherein it has been held in
paragraph 11 as under :
“11. … All that [vendee] purchased
at the execution sale was the undivided
interest of the coparceners in the joint
property. He did not acquire title to any
defined share in the property and was not
entitled to joint possession from the date of
his purchase. He could work out his rights
only by a suit for partition and his right to
possession would date from the period when a
specific allotment was made in his favour.”
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17. Thus, the Hon’ble Supreme Court held that in view
of aforesaid position there could be no dispute with regard to the
fact that an undivided share of co-sharer may be a subject-
matter of sale, but possession cannot be handed over to the
vendee unless the property is partitioned by metes and bounds
amicably and through mutual settlement or by a decree of the
court.
18. Mr. Trivedi further referred to the decision of the
Hon’ble Supreme Court in the case of Gajara Vishnu Gosavi
vs. Prakash Nanasaheb Kamble and others reported in (2009)
10 SCC 654 wherein relying on the earlier decisions the
Hon’ble Supreme Court came to the finding that a purchaser of
a coparcener’s undivided interest in the joint family property is
not entitled to possession of what he had purchased. He has a
right only to sue for partition of the property and ask for
allotment of his share in the suit property and further held that
an undivided share of a coparcener can be a subject matter of
sale/transfer, but possession cannot be handed over to the
vendee unless the property is partitioned by metes and bounds.
19. Thereafter, Mr. Trivedi referred to the decision of
the learned Division Bench of this Court in the case of
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Harendra Nath Mukharjee vs. Shyam Sunder Kuer & Others
reported in 1973 PLJR 20 wherein it has been held that an
undivided family means a family which is undivided qua
dwelling house in question. Though the dwelling house has been
divided by metes and bounds by a Pleader Commissioner who
has allotted separate Takhtas to different members of the family
and also by the court passing the final decree but till actual
delivery of possession is not effected and the house divided at
the spot in accordance with the report of the Pleader
Commissioner and the final decree, the family cannot be said to
be divided qua the dwelling house. In the eyes of law the
dwelling house should be deemed to be undivided amongst the
members of the family until they get separate possession over
their respective shares in accordance with the report of the
Pleader Commissioner and final decree, referring to a decision
reported in 74 Calcutta Weekly Notes 871 wherein it has been
held that an application under Section 4 of the Act is
maintainable before possession is delivered to the stranger
purchaser. Thus, it is manifest that the family continues to be
undivided qua dwelling house till possession is delivered to the
members of the family in execution of the final decree for
partition and as such the application is maintainable.
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20. Mr. Trivedi thus submitted that the same situation
prevails here as no delivery of physical possession has taken
place and the learned Subordinate Court ought to have taken all
these facts into consideration and should not have gone only on
the basis of orders passed by this Court which is nothing but an
order to protect right, title, interest and possession of the
purchasers. But their interest would coincide with their vendor
and whatever share is allotted to the vendor, the respondent nos.
42 to 44 could claim only the same and cannot demand carving
out a particular portion of their share of 2 katha and 8 dhur.
21. Mr. Trivedi further submitted that the respondent
nos. 42 to 44 have purchased the land from a co-sharer in
different transactions and this suit land contains house structure
of the plaintiffs/petitioners and the respondent nos. 42 to 44 are
claiming the portion of land having ingress and egress of the
petitioners. Therefore, this fact is also to be taken into
consideration.
22. Mr. Trivedi next submitted that F.A.No.838 of 1978
has been disposed of on 14.11.2000. The matter has been
pending for disposal of final decree proceeding, but for one
reason or another, the matter is going on. The defendant nos. 41
to 43/respondent nos. 42 to 44 purchased 2 katha 8 dhur by
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three registered sale deeds having area of 17 dhur, 17 dhur and
14 dhur, respectively from Plot No.1696. Further, according to
the plaint, total area of Plot No.1696 is 9 katha 18 dhur and
according to the intervenor, it is 8 katha 2 dhur. According to
the compromise petition, the petitioners have been allotted an
area of 5 katha 15 dhur in Plot No. 1696, the respondent no. 2
has been allotted 1 katha and respondent no. 6 has been allotted
1 katha 5 dhur and remaining 1 katha 18 dhur continued in the
share of respondent no.7. The transferred land have been
allotted to the share of transferor of the defendant nos. 41 to
43/respondent nos. 42 to 44.
23. Mr. Trivedi further submitted that the Survey
Knowing Pleader Commissioner, appending the sketch map,
reported that on the disputed Plot No. 1696, the plaintiffs have a
big house, latrines, water tanks, kitchen and some other
construction and from this plot, the petitioners have ingress and
egress to the main road, as such, if a piece of 2 katha 8 dhur is
allotted in one piece as demanded by defendant nos. 41 to 43,
then the ingress and egress of the plaintiffs will be closed.
24. Mr. Trivedi further submitted that while passing the
order dated 19.03.2013 in CWJC No. 2286/2013, this Court
never directed that only the land purchased by the purchasers/
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defendant nos. 41 to 43/respondent nos. 42 to 44 to the extent of
2 katha 8 dhur by three sale deeds having an area of 17 dhur, 17
dhur and 14 dhur, respectively, to be carved out. Rather this
Court ordered that land has to be determined to the extent of 2
katha and 8 dhur as per the sale deeds of the petitioners by
appointing another Pleader Commissioner, who should measure
the land as per the sale deeds of the purchasers. Only when the
share of the vendors is determined and the allotted to them, then
only carving out of the shares of the purchasers/defendant nos.
41 to 43 could take place. For this reason, the impugned orders
are not sustainable and Mr. Trivedi submitted that the learned
trial court has erroneously directed the Pleader Commissioner to
measure the lands purchased by the defendant nos. 41 to 43 in
terms of their sale deeds. Therefore, the impugned orders could
not be sustained in the eyes of law and are liable to be set aside.
25. Mr. Trivedi further submitted that it is settled law
that a purchaser of joint family property cannot insist for
allotment of the property which he has purchased. He has a right
only to sue for partition of the property and ask for allotment of
his property in the share of his vendor. At the same time,
possession cannot be handed over to the vendee unless the
property is partitioned by metes and bounds.
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26. Mr. Trivedi further submitted that the decisions of
this Court in the present case whether in F.A No.838/1978, Civil
Revision No. 167/2008 or CWJC No. 1286/2013 are concerned,
direction about protecting the right, title and possession of the
vendees, i.e., defendant nos. 41 to 43 is against the settled
proposition of law as discussed in the cases of MVS
Manikayala Rao vs. M. Narasimhaswami & Ors., AIR 1953
SC 470, Gajara Vishnu Gosavi (supra) and Sidheshwar
Mukherjee (supra). Therefore, the decisions are per incurium.
27. Mr. Trivedi further submitted that the principle of
per incuriam has been considered by the Constitution Bench of
the Hon’ble Supreme Court in the case of Punjab Land
Development and Reclamation Corporation Ltd. vs. Presiding
Officer, Labour Court and Ors., reported in (1990) 3 SCC 682,
wherein in paragraph 40 the latin expression per incuriam has
been defined, which reads thus :
“40. …the latin expression per
incuriam means through inadvertence. A decision
can be said generally to be given per incuriam
when this Court has acted in ignorance of a
previous decision of its own or when a High
Court has acted in ignorance of a decision of this
Court…”
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28. Mr. Trivedi further submitted that if the fact
comes to the notice of this Court, this Court is empowered to
declare these decisions per incurium. The learned senior counsel
referred to the decision of the learned Single Judge of this Court
in the case of Dr. Mithilesh Kumar vs. State of Bihar & Anr.,
reported in 1999(2)PLJR 259, wherein the learned Single Judge
considering a Division Bench judgment of this Court in
Kameshwar Pd. vs. State of Bihar in CWJC No. 4096/1995
concluded that the matter was not considered by the Division
Bench in its proper perspective and having regard to the law laid
down by the Hon’ble Supreme Court, the finding in the
judgment of Kameshwar (supra) was recorded per incurium and
was not binding precedent. The learned Single Judge further
held that in all probabilities, the Division Bench would have
followed the Supreme Court’s judgments if its attention was
drawn to these decisions. Thus, Mr. Trivedi submitted that the
aforesaid judgments of three Benches of this Court will not have
any binding effect being per incurium for not considering the
law settled by the Hon’ble Supreme Court.
29. Mr. Trivedi further submitted that the SLP (Civil)
No. 19206/2013 preferred against CWJC No.2286/2013 has
been dismissed in limine and, therefore, the order of this Court
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would not merge with the order of the Hon’ble Supreme Court
and, in this regard, referred to the decision of the Hon’ble
Supreme Court in the case of Khoday Distilleries & Ors. vs. Sri
Mahadeshwara Sahakara Sakkare reported in (2019) 4 SCC
376 wherein it has been held that if the dismissal at the stage of
special leave petition is without reasons, then there will be no
res judicata and no merger. The Hon’ble Supreme Court
analyzed a number of cases where orders of different nature
were passed and dealt with these judgments by classifying them
in the following categories :
“(i) Dismissal at the stage of special leave
petition- without reasons- no res judicata, no merger.
(ii) Dismissal of the special leave petition
by speaking or reasoned order- no merger, but rule of
discipline and Article 141 attracted.
(iii) Leave granted- dismissal without
reasons- merger results”.
30. Mr. Trivedi further submitted that in the present
case, the Hon’ble Supreme Court noted that the special leave
petition was heard and dismissed and no reasons given.
Therefore, the decision would not result in merger of the order
and would not act as res judicata.
31. Mr. Trivedi pointed out that after discussing
nature of dismissal before the Hon’ble Supreme Court, it has
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been held by the Hon’ble Supreme Court that if it is non-
speaking order where no reasons have been assigned and no law
has been declared, the dismissal is not of the appeal but of the
special leave petition. Even if the merits have been gone into,
they are the merits of the special leave petition only and neither
doctrine of merger nor Article 141 is attracted.
32. Thus, Mr. Trivedi submitted that the impugned
order dated 04.02.2017 suffers from error of jurisdiction as it
followed the decisions of this Court which are having no
binding effect being per incurium.
33. Reiterating the facts and discussing the Section 4
of the Partition Act, 1893, Mr. Trivedi submitted that there is no
direction/order/adjudication in the aforementioned three orders
of this Court regarding maintainability of the petition filed under
Section 4 of the Partition Act, therefore, the order dated
17.04.2023 is illegal. The defendant nos. 41 to 43 are strangers
to the family, who purchased part of Plot No. 1696 during
pendency of the F.A.No. 838/1978, which is a joint family
property. The plaintiffs/decree holders were not party to the
transaction of sale and they filed application on 16.03.2005
followed by petition dated 07.03.2020 under Section 4 of the
Partition Act undertaking to purchase the sold area of the
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defendant nos. 41 to 43, over which undivided pucca building,
courtyard, pucca latrine, passage of ingress and egress and other
appurtenances stands. The learned senior counsel referred to the
decision of the Hon’ble Supreme Court in the case of
Ghanteshwar Ghosh vs. Madan Mohan Ghosh and Ors.
reported in (1996) 11 SCC 446 wherein it has been held as
under :
“…Section 4 of the Partition Act read with Section
44 of the T.P. Act represents a well-knit legislative
scheme for insulating the domestic peace of
members of undivided family occupying a common
dwelling house from the encroachment of a stranger
transferee of the share of one undivided co-owner as
the remaining co-owners are presumed to follow
similar traditions and mode of life and to be
accustomed to identical likes and dislikes and
identical family traditions…”. It has further been
held that “…with a view to seeing that such
homogeneous life of co-owners belonging to the
same joint family and residing in the joint family
dwelling house is not adversely affected by the entry
of a stranger to the family, this statutory right of pre-
emption is made available to the co-owners who
undertake to buy out such undivided share of the
stranger co-owner. If such a right flowing from
Section 4 of the Act is restricted in its operation only
up to the final decree for partition, the very
benevolent object of the section would get frustrated
as up to final decree stage, the court would only
Patna High Court C.Misc. No.452 of 2017 dt.21-08-2025
29/43crystallise the shares of the contesting co-owners but
the separation and partition of the shares of
respective parties get really affected on spot only by
actual division by metes and bounds and delivery of
possession of respective shares to respective
shareholders…”.
34. Mr. Trivedi reiterated that the aforementioned
orders of this Court did not consider this aspect of the matter
and the orders are against the statutory provisions as well as the
law settled by the Hon’ble Supreme Court.
35. Mr. Trivedi next referred to the case of Manick
Lal Singh vs. Gauri Shankar Shah, reported in AIR 1968
Calcutta 245 wherein defining the dwelling house, it has been
held that a dwelling house means a house where the members of
a family reside or used to reside and it includes all that they use
for their convenient enjoyment of the house in question.
36. Mr. Trivedi further submitted that the suit
property is dwelling house and this fact is clear from the order
sheet of the learned trial court dated 16.11.2012 whereby the
learned trial court confirmed the report of learned Survey
Knowing Pleader Commissioner. Thus, Plot No. 1996 is
homestead land and the suit property is dwelling house along
with appurtenance thereto.
37. Thus, Mr. Trivedi submitted that the order passed
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by the learned trial court dated 17.04.2023 does not provide for
reasons for rejecting the application filed under Section 4 of the
Partition Act and is only based on three orders of this Court
which did not discuss Section 4 of the Partition Act at all,
therefore, the impugned order is not sustainable.
38. Per contra, the learned counsel for the
respondent nos. 42 to 44 submitted that Title Suit No. 382 of
1974/23 of 1978 was filed by the plaintiffs/petitioners for
partition of 1/4th share in the properties of Schedules I, II and
III of the plaint. The suit was decreed in part on 24.07.1978 on
the basis of compromise between plaintiffs and defendants 1st
party and with contest against defendants 2nd party. The Plot
Nos. 450 and 350 were in dispute in between the plaintiffs and
defendants 2nd party. Since the plaintiffs were aggrieved with the
part of the judgment and decree passed by the learned Sub
Judge-1st, Munger, they filed F.A.No. 838 of 1978 before this
Court. After judgment and decree passed by the learned Sub
Judge-1st, Bagha, the respondent nos. 42 to 44 purchased land
bearing Plot Nos. 1696 measuring 2 katha 8 dhur from
defendants 1st set. The learned counsel further submitted that
the Plot No. 1696 was not subject matter of F.A.No. 838 of 1978
as the said appeal was filed against the part of the judgment
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passed on contest against the defendants 2 nd set. In the aforesaid
first appeal, the respondent nos. 42 to 44 intervened in order to
safeguard their interest in the light of the compromise between
the plaintiffs and defendants first party. In the said first appeal, a
fresh compromise petition was filed by the plaintiffs and
defendants 1st set. However, the plaintiffs filed a supplementary
affidavit in the appeal stating therein that interest of the
intervenors was very much protected and was not affected by
the aforesaid compromise. The first appeal came to be disposed
of in terms of compromise as against the defendants 1 st party
and the compromise filed by way of I.A.No. 1669 of 2020 was
made part of the decree. The learned counsel further submitted
that in the order dated 14.01.2000, the learned first appellate
court made it clear that right, title, interest and possession of the
aforesaid purchasers in respect of 2 katha 8 dhur of land of Plot
No.1696 was not affected in any manner and the appeal was
dismissed against respondent nos. 9 to 11. The learned counsel
further submitted that since the matter was disposed of in the
light of compromise, no final decree was required and for this
reason, the respondent nos. 42 to 44 are not lis pendens
purchasers. In the Final Decree Case No. 02/2003 filed by the
petitioners, the respondent nos. 42 to 44 made a prayer to drop
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the final decree proceeding as the proceedings were not
maintainable due to compromise decree being passed in the
appeal. The prayer was rejected by the learned trial court vide
order dated 29.07.2008 and against the said order, the
respondent nos. 42 to 44 preferred Civil Revision No. 1671 of
2008. The said civil revision petition was disposed of with
direction to the learned trial court to proceed with the final
decree proceeding keeping in view of the specific direction of
the High Court in paragraph 12 of the judgment in
F.A.No.838/1978 relating to right, title, interest and possession
of the respondent nos. 42 to 44 over their purchased land of 2
katha 8 dhur of Plot No. 1696 which was not to be affected in
any manner.
39. The learned counsel further submitted that
despite these two specific orders, in final decree proceeding, a
wrong report of Pleader Commissioner was submitted and being
aggrieved by the order of the learned trial court dated
16.11.2012 affirming the report of learned Pleader
Commissioner, the respondent nos. 42 to 44 filed CWJC No.
2286 of 2013, which was allowed vide order dated 19.03.2013
wherein the learned Single Judge set aside the order dated
16.11.2012 and directed the learned trial court to determine 2
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katha 8 dhur as per the sale deeds of the petitioners by
appointing another Pleader Commissioner, who would measure
the land as per the sale deeds of the petitioners with further
direction stipulating the measurement in presence of the
government officials. The order dated 19.03.2013 passed in
CWJC No. 2286/2013 was challenged by the petitioners before
the Hon’ble Supreme Court in SLP (Civil) No. 19206/2013,
which was dismissed on 05.07.2013.
40. The learned counsel further submitted that in the
light of the aforesaid facts and circumstances, the respondent
nos. 42 to 44 filed a petition before the learned trial court to
determine/measure the land and accordingly, the learned trial
court, vide the impugned order dated 04.02.2017, appointed an
Advocate Commissioner to carve out the land purchased by the
respondent nos. 42 to 44. The said order has been impugned in
Civil Misc. No.452/2017. The learned Advocate Commissioner
has already submitted the report in the year 2017 itself.
41. The learned counsel further submitted that in the
light of the aforesaid facts and circumstances, it is very much
clear that the petitioners have no case and the present civil
miscellaneous petitions have been filed only to harass the
respondents. Though the respondents are stated to be lis
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pendens purchasers but no lis was pending when the land was
purchased by the petitioners. The petitioners purchased the land
from the defendants 1st set who have already entered into
compromise and Title Suit No.382/1974 was decreed on the
basis of compromise as against defendants 1st set. The
defendants 1st set again entered into compromise in
F.A.No.838/1978. Since the respondents have purchased the
land which did not remain in dispute after compromise before
the learned trial court and for that matter, even first appeal was
disposed of on the basis of compromise with the petitioner with
respondents 1st party who were defendants 1st party in the
learned trial court. Then the subsequent orders were passed in
F.A.No.838/1978, Civil Revision No.1671/2008 and CWJC
No.2286/2013 affirming the possession of the respondent nos.
42 to 44 with regard to their right, title, interest and possession
over the property purchased by them. The contention of the
petitioners has not been accepted even by the Hon’ble Supreme
Court which dismissed the Civil Appeal (Civil) No.19206/2013.
The learned trial court proceeded in the matter and has passed a
proper order as the said order is in tune with the orders passed
by this Court in the aforesaid F.A.No.838/1978, Civil Revision
No.1671/2008 and CWJC No.2286/2013. There is no illegality
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in the impugned order dated 04.02.2017.
42. So far as challenge to the order dated 17.04.2023
is concerned, learned counsel for the respondents submitted that
the same is not assailable before this Court again in the light of
the peculiar facts and circumstances of the case that when right,
title and interest as well as possession of the respondent nos. 42
to 44 have been protected by this Court and such order was
affirmed even by the Hon’ble Supreme Court. Moreover, Plot
No. 1696 was not a dwelling house and applicability of Section
4 of the Partition Act is with regard to only a dwelling house
and, therefore, there was no occasion for the learned trial court
to take a different view and allow the application of the
petitioners under Section 4 of the Partition Act. Thus, learned
counsel submitted that there is no illegality even in the order
dated 17.04.2023 and the same needs to be affirmed.
43. The learned counsel while referring to the
decision of the Hon’ble Supreme Court in the case of Junior
Telecom Officers Forum and Ors. vs. Union of India and Ors.
reported in 1993 supp (4) SCC 693 submitted that even in
limine dismissal of SLP would act as binding precedent. The
learned counsel submitted that the Hon’ble Supreme Court
considered the merits of the case and in limine dismissal should
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not be taken as having no binding force.
44. The leaned counsel next referred to the decision
of the Hon’ble Supreme Court in the case of Byram Pestonji
Gariwala vs. Union Bank of India and others reported in
(1992) 1 SCC 31 wherein the Hon’ble Supreme Court held that
a compromise decree creates an estoppel by judgment and is
binding upon the parties thereto. The compromise having been
found not to be vitiated by fraud, misrepresentation,
misunderstanding or mistake, the decree passed thereon has the
binding force of res judicata. The learned counsel thus
submitted that the petitioners are trying to wriggle out from their
compromise as the petitioners and the respondents 1 st set are co-
parcerners and they want to deny the purchased land to the
respondents.
45. The learned counsel also submitted that passing
of the final decree is not necessary if the rights of the parties
have been finally decided by virtue of compromise and relied on
the case of N. Swaminathan vs. N. Ananttharama
Subramanian and others reported in AIR 2003 Kerala 30.
46. By way of reply, Mr. Trivedi submitted that the
nature of Plot No. 1696 is stated to be Kast Kaymi Gharari and
this fact finds mention in the sale deed dated 12.12.1989. This
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aspect was not considered by any of the learned Benches of this
Court that the petitioners have a right under Section 4 of the
Transfer of Property Act and the said right could not be taken
away by the judicial pronouncements of this Court.
47. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
48. Admittedly, the respondent nos. 42 to 44 are
purchasers from defendants 1st party, who have entered into
compromise with the plaintiffs/petitioners and suit Plot No.1696
was part of the compromise. The same defendants 1st set and
respondents 1st set/plaintiffs/petitioners again entered into
compromise in F.A.No.838/1978. In the compromise before the
first appellate court, supplementary affidavit in I.A. No.
1669/2000 elucidates the position of the party with regard to the
suit property under compromise very clearly and it is useful to
extract paragraph 4 for clarity :
“That so far with regard to the claim of
Caveator/Intervenor are concern, the deponent begs
to states that total area of Plot No. 1696 according to
the plaint is 9 Katha 18 Dhur but according to the
intervenor it is 8 Katha 2 Dhurs. According to
intervenors claim Yogendra Singh
Defendant/Respondent No.2 transferred 17 Dhurs,
Ram Pratap Singh Defendant/Respondent No.6
transferred 17 Dhurs and Radha Pratap Singh
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38/43Defendant/Respondent No.7 transferred 14 Dhurs.
Total land comes to 2 Katha 8 Dhurs. According to
compromise petition Appellants have been alloted an
area of 5 Katha 15 Dhurs in Plot No. 1696,
Respondent No.2 has been alloted 1 Katha
Respondent No.6 has been allotted 1 Katha 5 Dhurs
and remaining 1 Katha 18 Dhurs comes in the share
of Respondent No.7 though due to typing mistake it
was not shown in the share of Respondent No.7 in the
compromise petition. That being the position the
transferred land have been allotted to the share of
transferer of the intervenor. Hence the interest of the
Caveators/intervenors are very much safe and not
affected.”
(Underlined for emphasis)
49. Therefore, it is the admitted position of the
petitioners that the transferred land have been allotted to the
share of transferees of the intervenors and their interest was very
much protected and not affected. This fact was acknowledged
by this Court in FA No.838/1978 when the appeal was disposed
of in terms of compromise as against the respondents 1 st party
and I.A. No.1669/2000 was made part of the decree. Moreover,
Plot No.1696 was not the subject matter of F.A.No.838/1978
since the challenge in the appeal was only to the part of the
judgment passed on contest against the defendants 2 nd set. Once
the suit was decreed on the basis of compromise between the
plaintiffs and defendants first party, the matter with regard to
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Plot No. 1696 did not remain in dispute any more. Therefore,
purchase made by the respondent nos. 42 to 44 from Plot No.
1696 is not a purchase pendente lite. Moreover, the plaintiffs
admitted the status of respondent nos. 42 to 44 in respect of their
rights over 2 katha 8 dhur of land on Plot No. 1696. In this
background, the first appellate court held that right, title, interest
and possession of the purchasers in respect of 2 katha 8 dhur of
land of Plot No.1669/2000 is not affected in any manner.
Thereafter, in Civil Revision No.1671/2008 the position was
reiterated by the learned Single Judge who directed the learned
trial court to proceed with the final decree proceeding keeping
in view the specific direction of this Court in paragraph 12 of its
judgment in FA No. 838/1978 relating to the right, title, interest
and possession of the petitioners over their purchase of 2 katha
8 dhur of land of Plot No.1696 which was not to be affected in
any manner. Further, in CWJC No.2286/2013, the learned
Single Judge considered the prevailing situation and also the
boundaries in the sale deeds and considering all aspects directed
the learned trial court to determine 2 katha 8 dhur as per sale
deeds of the respondent nos. 42 to 44 by appointing another
Pleader Commissioner, who should measure the lands as per the
sale deeds of the respondent nos. 42 to 44. This order was
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challenged by the petitioners before the Hon’ble Supreme Court
which dismissed the same vide order dated 05.07.2013 passed in
SLP (Civil) No. 19206/2013. If the impugned orders dated
17.04.2023 and 04.02.2017 have been passed by the learned trial
court in the background of the aforesaid three orders of this
Court as well as orders of the Hon’ble Supreme Court in SLP
(Civil) No. 19206/2013, the orders could not be said to be
improper or illegal. Even though the SLP (Civil) No.
19206/2013 filed by the plaintiffs was dismissed in limine, the
effect of the same is upholding the orders of this Court passed in
CWJC No.2286 of 2013 unless any observation to the contrary
has been made. Dismissal would, therefore, mean the Hon’ble
Supreme Court applied its mind to the facts of the case and
finding no merit in the challenge to the orders of this Court
passed in CWJC No.2286/2013, dismissed the special leave
petition. Thus, the order of the Hon’ble Supreme Court has
conferred finality on the orders of this Court passed in CWJC
No. 2286/2013.
50. Invoking extra-ordinary jurisdiction of this Court
under Article 227 of the Constitution of India, in the aforesaid
facts and circumstances of the case, is unwarranted, more so,
when the petitioners have challenged the order passed by the
learned Single Judge in CWJC No.2286/2013 before the
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Hon’ble Supreme Court and lost. Now, they cannot turn the
clock back and say that these orders were passed per incurium
and were against the orders passed in MVS Manikayala Rao
(supra), Gajara Vishnu Gosavi (supra) and Sidheshwar
Mukherjee (supra). Moreover, the facts are also dissimilar. In
the present case, when a compromise has already been taken
place, Plot No. 1696 has already been divided between the
plaintiffs and defendants 1st set and the transferred land has been
given in the share of the defendants 1st party, the petitioners are
estopped from claiming otherwise and challenging the allotment
of share to the respondent nos. 42 to 44. Therefore, the
respondent nos. 42 to 44 are not pendente lite purchaser of
undivided property rather they are purchasers of defined share
of their vendors. For this reason, there could be no applicability
of authorities cited by the learned senior counsel for the
petitioners and, hence, the earlier decision of this Court cannot
be said to be per incurium.
51. So far as rejection of petition of the petitioners
filed under Section 4 of the Partition Act is concerned, the same
would also be covered by the specific directions of this Court
and also by the fact that Plot No.1696 was not dwelling house
when it was sold. The distinction between dwelling house and
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homestead land cannot be lost sight of. The applicability of
Section 4 of Partition Act is only when share of dwelling house
belonging to an undivided family has been transferred to a
stranger, who is not a member of family and when such
transferee sues for partition, then option could be given to the
members of the family to purchase share of such transferee.
52. In the present case, admittedly Plot No.1696 was a
homestead land and not a dwelling house, hence, there could be
no application of Section 4 of Partition Act in these
circumstances.
53. In the light of aforesaid facts and circumstances of
the case and discussion made and considering the peculiar and
distinguishable facts of the case in hand, the authorities cited by
the learned senior counsel for the petitioners would not come to
the rescue of the petitioners.
54. In view of discussion made here-in-above, I have
no hesitation in holding that the learned trial court has not
committed any illegality or irregularity and there appears no
error of jurisdiction so as to interfere with the impugned orders
and hence, the impugned orders dated 04.02.2017 & 17.04.2023
passed by learned Sub Judge-1, Bagaha, West Champaran in
F.D. Case No. 02/2023 are affirmed.
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55. As a result, both the petitions are dismissed.
56. Pending interlocutory applications, if any, also
stand disposed of.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR CAV DATE 10.07.2025 Uploading Date 21.08.2025 Transmission Date NA