IMPORTANT POINT
Partition—Premises in suit being a residential house, appellant cannot claim any partition.

JUDGMENT

Anant Bijay Singh, J.—Heard learned counsel appearing for the parties.

2. The sole appellant has preferred this appeal being aggrieved and dissatisfied with the judgment and decree dated 24.08.2002 passed by Addl. Judicial Commissioner, Ranchi in Title Appeal No.106/95 affirming the judgment dated 14.09.95 and the decree dated 25.09.95 passed by Sri T. Pathak, Sub-Judge-VII, passed in Partition Suit No.183 of 1988/17 of 1994.

3. It appears that this appeal was filed on 27.11.2002 and on 13.08.2004 this appeal was admitted for hearing on the following substantial questions of law:

(i) Whether the Court below have committed an error of law in dismissing the plaintiff’s suit in view of Section 23 of the Hindu Succession Act, 1956 without taking note of the decision reported in AIR 1996 S.C. 1826 and without recording specific finding on the controversy that the suit property is not being only used for dwelling purposes of the family members ?

(ii) Whether the Courts below have wrongly applied bar of Section 34 of the Specific Relief Act in the facts and circumstances of the case and that too without recording cogent speaking reasons ?

4. Further, the appellant has filed I.A.No.1117 of 2009 with a prayer for grant of injunction, as the respondents were trying to sell the property in question and a co-ordinate Bench of this Court vide order dated 13.07.2009 had directed the parties to maintain status quo, as existed, till disposal of the appeal.

5. From perusal of order dated 08.01.2016, learned counsel for the appellant has informed that during pendency of the appeal, respondent no.2 Konika Chatterjee has died and hence sought permission for filing necessary application for bringing on record the legal heirs of respondent no.2 and thereafter, the appellant filed I.A.No.1113 of 2016 for deletion of name of respondent no.2 Konika Chatterjee,who died issue less and she has no legal heirs/representatives and a Co-ordinate Bench of this Court vide order dated 26.02.2016 allowed I.A. No.1113/2016 and the name of respondent no.2 was deleted from the cause title. Thereafter, only on 29.06.2017, the case was transferred to this Bench and it was adjourned time to time.

6. On 11.01.2018, since the argument of respondent no.6 was completed, the case was directed to be listed on 25.01.2018 to enable appellant to file reply. But the case was de-listed and it was listed before a Co-ordinate Bench. Thereafter, vide order dated 25.01.2018 this case was de-listed and it was again listed before this Bench on 06.04.2018. Thereafter, time to time this case was adjourned and lastly on 21.08.2019 this case was heard at length and after completion of argument of both the parties, the judgment was reserved.

7. The case of plaintiff/appellant/appellant, in brief, is that the plaintiff/appellant, Miss China Moitra has filed Title Suit No.183/88 before the Sub-Judge-VII, Ranchi for declaration that the deed of relinquishment dated 16.06.75 had been obtained by fraud and the same did not and could not effect or extinguished the plaintiff’s undivided share in the suit property and for a preliminary decree for partition of share of the plaintiff in the suit property and also for a final decree allowing specific portion in the suit property.

8. It is submitted that the suit property was the self-acquired property of the plaintiff’s father and defendant’s father Baidyanath Moitra who died intested at Ranchi on 7.11.1970. Late Baidyanath Moitra left his widow and only one son Dinanath Moitra and five daughters including the plaintiff.

The defendant no.2 was erratic and unpredictable. During his last days late Baidyanath Moitry used to be severely tortured by defendant no.2 and he was kept confined in a locked room by defendant no.2.

There was no reason except perverted pleasure of defendant no.2. After the death of his father, defendant no.2 started to give threatening that hen would commit suicide if his mother and sisters did not give their power of a