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IN THE HIGH COURT OF JUDICATURE AT PATNA
Arun Kumar Jha, J.
Krishna Kumar Sinha, S/o Late Shyam Bihari Lal and ors. – Petitioner
Versus
Smt. Seema Kumari, D/o Late Shyam Bihari Lal and ors. – Respondents
Civil Miscellaneous Jurisdiction No.1369 of 2017
Decided On : 12-06-2024
JUDGMENT :
ARUN KUMAR JHA, J.
Heard learned counsel for the petitioners as well as learned counsel for the respondents on the point of admission and I intend to dispose of the present petition at the stage of admission itself.
2. The instant petition has been filed by the petitioners under Article 227 of the Constitution of India for setting aside the order dated 29.02.2016 passed by the learned Sub Judge-III, Patna in Title Suit No. 337 of 2010.
3. Briefly stated, the facts, as it emerges from the record, are that the petitioners as plaintiffs filed Title Suit No. 337 of 2010 are seeking declaration that plaintiffs are joint owners in possession of the suit properties and for further declaration that gift deed dated 21.10.1994 purportedly executed by plaintiff no.1 in favour of defendant no.1/respondent no.1 (for convenience I will refer him as defendant no.1) is forged, fabricated, void ab initio and inoperative besides seeking other reliefs. The suit was filed by the plaintiffs claiming that the suit properties are self-acquired properties of the plaintiffs/petitioners through the registered sale deed dated 06.07.1994 and these properties are situated within Patna District. Defendant no.1 appeared and filed her written statement-cum-counter claim and defendant nos. 2 to 4/ respondent nos. 2 to 4 filed their own written statement. Defendant no.1 sought partition of properties of Jehanabad District as mentioned in Schedule-I of the counter claim submitting that the said property was exclusively purchased properties of mother of the defendant no.1. Thereafter, the petitioners filed objection petition dated 04.06.2012 challenging the maintainability of the counter claim of defendant no.1 who filed rejoinder dated 25.06.2012 to the said petition. After hearing the parties, the learned trial court rejected the petition dated 04.06.2012 filed by the plaintiffs/petitioners vide the impugned order dated 29.02.2016. Thereafter, the plaintiffs/petitioners filed another petition dated 06.05.2016 under Order 47 Rule 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) for review of the order dated 29.02.2016. A reply was filed by the defendants to the said review petition and after hearing the parties, learned trial court rejected the review petition of the plaintiffs/petitioners vide order dated 24.04.2017. Thus, the impugned order remained unaltered and, hence, the present petition.
4. Learned counsel appearing on behalf of the petitioners submitted that the learned trial court has illegally accepted the counter claim of the defendant no.1 which is filed for partition in respect of property situated in the jurisdiction of Jehanabad District and the counter claim is for partition in respect of those properties whereas different issues are involved in Title Suit No. 337 of 2010 which is in respect of properties situated in the jurisdiction of Patna District and the suit is for declaration and injunction. Learned counsel further submitted that the learned trial court committed an error as it failed to appreciate that the counter claim is having different cause of action. Further the learned trial court did not appreciate that the properties under counter claim were the exclusively purchased property of mother of the plaintiff no.1/petitioner no.1 and the defendant no.1 as the same were purchased through the registered sale deeds dated 05.06.1954 and 03.12.1957. The mother of the petitioner no.1 partitioned the properties mentioned in Schedule-I of the counter claim between her two sons, namely, Krishna Kumar Sinha and Sanjay Kumar Sinha through a memorandum of partition dated 17.06.2002/18.06.2002 during her lifetime and both her sons came in possession over their allotted shares. The said memorandum of partition is duly signed by the mother Sushila Devi and her two sons Krishna Kumar Sinha and Sanjay Kumar Sinha and two daughters of Sushila Devi, namely Radha Devi and Pushpa Devi, and also by Mukhiya of Panchayat an
A counter claim must relate to the plaintiff's claims; dissimilarity in cause of action renders it non-maintainable.
A counter-claim cannot be permitted after the framing of issues unless exceptional circumstances exist, which were not present in this case.
Counterclaims may be allowed after closing evidence if justified by circumstances; procedural rules must serve justice.
A defendant cannot file a counterclaim against a co-defendant under the CPC, as the provisions only allow counterclaims against the plaintiff.
Counter claims in partition suits must be directed against the plaintiff; co-defendants cannot initiate claims solely against each other without notice, as all parties have interchangeable roles.
A counterclaim in a partition suit must be against the plaintiff; failing to notify co-defendants constitutes a violation of natural justice, rendering any ex parte decree unsustainable.
The absolute right of the respondent in the suit property and the unsustainable nature of the plea of adverse possession were the central legal points established in the judgment.
Counter claims must be against plaintiffs and not co-defendants; prior partitions cannot be reopened based solely on alleged inequities.
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