IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.187 of 2009 1. Naushad Ali 2. Irshad Ali 3. Parwez Ahmad Nos. 1 to 3 sons of Late Abdul Rahim 4. Jamila Khatoon 5. Shakeela Khatoon 6. Sajeda Khatoon @ Sajda Bano 7. Shaheda Khatoon @ Shaheda Bano Nos. 4 to 7 daughter of Late Abdul Rahim 8. Sairun Nissa widow of Late Abdul Rahim All resident of village – Chhata Bakhtiar, P,O. Chhapia, P.S. Hussainganj, District Siwan (Defendant 1st Party … Respondent) .. Appellants … Petitioners Versus 1. Md. Israil son of Late Abdul Hafiz resident of village – Chhata Bakhtiar, P.O. Chhapia, P.S. Hussainganj, District Siwan .. (Plaintiff – Appellant) Respondent .. Opposite Party 1st Party 2. Ghulam Mohammad 3. Wasi Ahmad Nos. 2 and 3 sons of Late Abdul Aziz 4. Noorzehan Khatoon daughter of Late Abdul Aziz Nos. 2 to 4 residents of village Chhata Bakhtiar, P.?S. Husainganj, District Siwan (Defendant no. 2 Respondent) … Respondents …. Opposite 2nd party ---- For the Petitioners : Mr. Md. Najmul Hoda, Advocate For the Opposite Parties : Mr. S.A.Alam, Advocate ------ P R E S E N T THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON’BLE MR. JUSTICE DR. RAVI RANJAN Dr. Ravi Ranjan, J.: I.A. No. 6074 of 2009 This application has been filed for condoning the delay of about 211 days in preferring this civil 2 review application. On 25.8.2010 notices were issued upon the opposite party nos. 1 to 4 under ordinary process as well as registered cover in limitation matter as well as in the review application and in response thereto opposite party nos. 1 to 4 have appeared. However, there is no rejoinder or counter affidavit filed on their behalf to this interlocutory application. From the averments made in this application, it appears that the petitioners were prevented by sufficient cause from filing this application within time. As a result, this interlocutory application is allowed and the delay of 211 days in preferring the present civil review is hereby condoned. Now, I proceed to consider the present civil review on its own merit. Being aggrieved by the judgment and decree dated 12th of May 1998 passed in First Appeal No. 379 of 1979, the petitioners had preferred L.P.A. No. 806 of 1998, which was admitted on 7.9.1998. The aforesaid appeal came for hearing before the Division Bench and after hearing the parties on merit 3 the same was dismissed by the judgment dated 1st October, 2008. The aforesaid judgment was challenged by the petitioner by filing Special Leave to Appeal (Civil) No. 30102 of 2008, which was dismissed by the Supreme Court on 07.01.2009 with certain observation. It appears that a ground was taken by the petitioners that while passing the judgment dated 1.10.2008 in L.P.A. No. 806 of 1998, the Division Bench of this Court did not consider the question as to whether the properties described in Schedule „Ka‟ and Schedule „Kha‟ of the written statement filed by the petitioners, were joint family properties or not. Their Lordships have observed that from the judgment it does not appear that such a contention had been raised, however, if such contention raised on behalf of the petitioners is correct then the only course open to the petitioners would be to move the High Court to press that issue. Then the petitioners have preferred the present civil review. The parties have been heard and records of the case have been perused. 4 Learned counsel appearing on behalf of the petitioners submitted that a written statement was filed before the trial court stating therein that certain premises and business at Jamshedpur as well as some movable properties detailed in Schedule „Ka‟ and Schedule „Kha‟ are also joint properties of the parties required to be partitioned. However, the trial court has rejected such stand taken by the defendants – petitioners and has held that the business and properties described in Schedule „Ka‟ and Schedule „Kha‟ are not joint. It is submitted that a cross objection was also filed in the First Appeal No. 319 of 1979 in this regard in the first appeal challenging the aforesaid finding of the trial court. However, the first appellate court did not consider either the cross objection or the stand taken in the written statement by the concerned defendants regarding Schedule „Ka‟ and Schedule „Kha‟ properties and had proceeded to decide the appeal only with respect to Schedule II properties. Learned counsel tried to impress upon this 5 Court that the Division Bench also, while disposing of the concerned Letters Patent Appeal, has not considered the same. However, from the judgment of the first appellate court, it appears that in paragraph 4 thereof the learned single Judge has noticed that cross objection was filed on behalf of the defendant no. 1 – respondent no. 1 assailing finding of the trial court judgment regarding Schedule „Ka‟ and „Kha‟ of the written statement. However, it has been stated that the appeal has been confined only with regard to Schedule II property, namely, 12 kathas of land situated in the town of Siwan. This issue was also raised before the Division Bench of this Court while hearing the Letters Patent Appeal and it had considered the same and rejected the claim of the petitioners on the ground that they have waived this issue before the first appellate court. Relevant paragraphs of the judgment dated 1.10.2008 are quoted as under:- “ The defendant no. 1 filed written statement and besides refuting the allegations and controverting the statements made in plaint, he added for partition certain premises 6 at Jamshedpur along with some moveable properties detailed in schedule III ka and kha.” xx xx xx “Abdull Rahim ( respondent no. 1 in F.A. No. 319 of 1979) had filed cross objection challenging that part of the impugned judgment whereby and where under the learned trial court had not found the properties described in schedule Ka and Kha of written statement as joint properties of the parties and had held that the business of Jamshedpur was not joint and the properties detailed in schedule Ka of belonged to the persons or persons in whose name it stood. The impugned judgment had also been assailed in the cross-objection on the ground that the trial court erred in holding that Rs. 8600/- should be refunded by the defendant no. 1 to the plaintiff and defendant no. 2.” xx xx xx “Learned counsel for the appellant contended that the learned single Judge ought to have disposed of the cross objection also after hearing both the parties. He submits that though filing of cross-objection has been noticed by the learned single Judge but thereafter he has not decided the controversy 7 raised therein. Thus, according to the appellant the impugned judgment is liable to be set aside on that ground alone.” “This submission of the learned counsel for the appellant is noted to be rejected only for the reason that the learned single Judge has clearly stated in paragraph 4 of the impugned judgment that at the time of hearing the parties have confined the dispute with respect to the schedule II properties only which is 12 kathas of land situated in the town of Siwan. For that reason, as it appears from the memorandum of appeal, the aforesaid ground has also not been taken by the appellants. This being the situation, I am constrained to hold that having waived their right before the learned Single Judge, the appellants at this stage, cannot be allowed to raise the issue of the cross objection.” It is, thus, clear that the point raised by the petitioners has been considered by the Division Bench of this Court and it has been held that from the judgment passed by the first appellate court, it is quite clear that the petitioners have waived such issue otherwise, in case they were aggrieved due to non consideration of the issue then they could have 8 immediately moved the same court by filing a review application for rectification of the judgment or even in the memorandum of appeal of the present Letters Patent Appeal, they could have raised such ground. However, learned counsel for the petitioners was not in a position to say that these steps had been taken by the petitioners. Thus, it appears that the reason for rejection of their claim raised at the time of hearing of aforesaid appeal with regard to Schedule „Ka‟ and „Kha‟ properties of the written statement was correct and there is no reason for this Court to take a different view of the matter. As a result, this civil review is dismissed. Shiva Kirti Singh, J.: Patna High Court The 27 July, 2011 Spd/ NAFR ( Dr. Ravi Ranjan, J.) I agree (Shiva Kirti Singh, J.)