The court upheld the validity of prior property rights and found no illegality in the lower court's order concerning the exclusion of the petitioner's share in the final decree proceedings.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel appearing for the petitioner, learned counsel appearing for the O.P. Nos. 1, 2 and 4 and learned counsel appearing for the O.P. No. 3.

2. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 06.08.2024, passed by the learned Senior Civil Judge-III, Dumka, in Final Decree Case No. 01 of 2018, whereby, the civil miscellaneous petition, filed by the petitioner, has been rejected.

3. Mr. Amar Kumar Sinha, learned counsel appearing for the petitioner submits that Dhananjay Upadhyay and others instituted Title (Partition) Suit No. 46 of 2006 against the defendants praying therein a decree claiming partition of 1/5^th Share in Schedule-A and alternatively 1/4^th Share in Schedule-B properties fully described in the Schedule of the plaint and possession of for delivery the specific allotted portion as per the final decree to be given to the plaintiff.

4. He submits that the specific case of the plaintiff is that the Defendant No.4 namely Mritunjay Upadhyay sold his share i.e. specific portion of 4 Kathas 5 Dhurs in favour of Smt. Chinta Upadhyay i.e. the petitioner and she is in exclusive possession over the same. He further submits that after hearing the parties, the learned court has passed the judgment and decree dated 29.04.2015 in the said suit. He then submits that Mritunjay Upadhyay and Krishna Kumar Upadhyay instituted Title Suit No. 72 of 2006 in the court of learned Senior Civil Judge-III, Dumka, against Chinta Upadhyay, i.e. the petitioner and others praying therein for cancellation of the sale deed executed by Mritunjay Upadhyay in favour of Chinta Upadhyay on 06.12.2004, however, the same was dismissed by the judgment and decree dated 18.01.2016. He further submits that in para-26 of the said judgment, observation was made that the proforma defendant No. 7 namely Chinta Upadhyay by sale deed No. 1069/2004 has been declared valid and genuine by the learned court in Title Suit No. 72 of 2006 (Exhibit-1) and remaining legal heirs of late Bishwanath Upadhyay will get equal share in Schedule-B Property. He submits that the said suit was dismissed. He further submits that against the judgment passed in Title Partition Suit No. 46 of 2006, civil appeal No. 20 of 2015 was filed by the petitioner. He then submits that the petitioner filed objection before the learned civil Judge, Dumka in final decree proceeding praying therein for excluding the property of the petitioner, which has been rejected vide order dated 01.07.2022 in Final Decree Case No. 01 of 2018.

5. Learned counsel appearing for the petitioner submits that in view of that the petitioner filed a CMP No. 291 of 2023 before this court, which was disposed of by order dated 07.11.2023 observing that the petitioner apprehends that her share might not be included in the final decree and she will not get her land and it was further observed that the learned counsel for the Opposite Parties has raised no serious objection for allotment of share of the petitioner on the basis of whatever share may call to Defendant No.4 (vendor of the petitioner) by meats and bounds in accordance with the final decree. He submits that the said CMP was disposed of observing the above. He further submits that pursuant to the disposal of the CMP, the learned executing court has further proceeded by order dated 06.08.2024 and all the pending petitions have been disposed of and the Pleader Commissioner has been appointed.

6. In view of the above, learned counsel appearing for the petitioner submits that the observation may kindly be made that the share of the petitioner may kindly be excluded from the property.

7. On the other hand,