The High Court dismissed the second appeal. It held that no substantial question of law existed as the lower courts elaborately considered facts regarding partition and unity of title. The lawsuit was barred as the plaintiff withdrew a previous suit on the same cause of action without prior court leave.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 Second Appeal No. 122 of 2014
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
Second Appeal No. 122 of 2014
----
Md. Tasir Ali Ansari, son of late Abdul Sattar, resident of Fakirdih (Karmatand), P.O. and P.S. Govindpur, District –Dhanbad
….. Plaintiff/ Appellant/ Appellant
-- Versus -- 1.Saira Bibi, 2.Sohrab Ansari 3.Patal Ansari, 4.Thandi Bibi, 5.(i).Aalti Bibi 5.(ii).Nasir Ansari 5.(iii).Hasim Ansari 5.(iv).Manjoor Ansari 5.(v).Farhad Ansari 5.(vi).Hatim Ansari 5.(vii).Basiran @ Guddi Bibi, 6.Hazra Bibi, 7.Yusuf Ansari 8.Alam Ansari, 9.Basiran Bibi, 10.Asiran Bibi, 11.Shakila Bibi, 12.Idrish Ansari 13.Muslim Ansari 14.Suleman Ansari 15.Khairun Bibi 16.Rasulan Bibi 17.Rahila Bibi 18.Quresha Bibi 19.Yahida Bibi 20.Reshma Khatoon 21.Sattar Ansari(minor) 22.Minhaj Ansari(minor) 23.Rafique Ansari 24.Hanufa Bibi 25.Inamul Ansari 26.Most.Rasulan Bibi 27.Aman Bibi. 28.Jubada Bibi 29.Nuresha Bibi 30.Madina Bibi 31.Ilyas Ansari 32.Israj Ansari 33.Nazrul Ansari 34.Amzul Ansari 35.Sabra Bibi 36.Khairun Bibi 37.Saimun Bibi 38.Memon Bibi 39.Hasina Bibi 40.Md.Idrish Ansari 41.Md. Ibrahim Ansari 42.Usuf Ansari 43.Ayesa Bibi 44.Khairnnisa Bibi
2 Second Appeal No. 122 of 2014
45.Sitara Khatoon 46.Jagu Mian 47.Rajak Ansari 48.Jamila Khatoon 49.Musun Khatoon 50.Saimoon Khatoon 51.Futan Khatoon 52.Basir Mian 53.Asiruddin Ansari 54.Rafique Ansari 55.Siddique Ansari 56.Mustakim Ansari 57.Sanaul Ansari 58.Hamidan Bibi 59.Sitara Bibi 60.Anisa Bibi 61.Nuresha Bibi 62.Mina Bibi 63.Md.Yunus 64.Chutan Mian 65.Khodeja Bibi 66.Imran Ansari(minor) 67.Halima Khatoon (Minor) 68.Mushima Khatoon(minor) 69.Kalimuddin Ansari 70.Md. Piru 71.Md.Tahir 72.Hussain Ansari 73.Khurshid Ansari 74.Tahuron Bibi 75.Sahudan Bibi 76.Lal Banu Bibi 77.Sajiban Bibi 78.Saira Bibi 79.Rasidan Bibi 80.Ayesha Khatoon 81.Abjun Bibi 82.Munna Ansari 83.Ishaque Ansari 34.Hasimuddin Ansari 85.Prof.M.H.Khan 86.Smt. Gayatri Devi 87.Rajkumar Rajak 88.Smt.Usha Devi 89.Rauf Ansari 90.Munni Bibi 91.Fakira Ansari 92.Surjit Singh 93.Rajendra Singh 94.Manjit Singh
….Purchaser Defendants /Proforma Respondents/ Proforma Respondents
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Appellant/Plaintiff :- Mr. A.K.Sahani, Advocate Mr. Ajit Kumar, Advocate For Resp.Nos.5(iii) & 5(vi) :- Mr. Afaque Rashidi, Advocate Md. Azam, Advocate Mr. Ajnal Ashraf Khan, Advocate
3 Second Appeal No. 122 of 2014
16 /01.03.2023 Heard Mr. A.K.Sahani, the learned counsel assisted by Mr. Ajit Kumar, the learned vice counsel appearing on behalf of the appellant/ plaintiff and Mr. Afaque Rashidi, the learned counsel appearing on behalf of the respondent nos. 5(iii) & 5(vi).
The present second appeal has been preferred being aggrieved and dissatisfied with the judgment dated 20.05.2014 (decree signed on 04.06.2014) passed by learned District Judge –VII, Dhanbad in Title Appeal No.103 of 2005 affirming the judgment dated 31.5.2005 (decree signed on 14.06.2005) passed by the learned Sub-Judge-II, Dhanbad in Title Suit No.174 of 1992.
The appellant/ plaintiff instituted the Title Suit No.174 of 1992 which was filed for partition of property of schedule-‘A’ described in the plaint. The learned trial court by the judgment dated 31.05.2005 has been pleased to dismiss the suit considering that there is no unity of title and possession between the plaintiff and the principal defendants and all the properties of schedule-‘A’ have been partitioned by metes and bound between the parties and therefore there was no cause of action for the present suit and that is why the suit was dismissed. Aggrieved with that judgment, the appellant/ plaintiff had preferred the title appeal being Title Appeal No.103 of 2005, which was dismissed by the judgment dated 20.05.2014 by the learned District Judge-VII, Dhanbad affirming the judgment of the learned trial court. Aggrieved with that, the present Second Appeal has been filed on behalf of the appellant/ plaintiff.
The case of the appellant/ plaintiff in short, is that the plaintiff and the original principal defendants named as defendant nos.7 to 38 are descendants of Ahlad Mian and Shambhu Mian as detailed at scheduled-B of the plaint; while original defendants named at defendant nos.39 to 49 are purchaser-defendants. In cadastral survey CS khata number 67 (item I of schedule B of the plaint) was recorded in the name
4 Second Appeal No. 122 of 2014
of Lokhu Mian and a Ahlad Mian, son of late Matabar Mian, having two shares and Bulaki Mian, Lodu Mian and Utabali Mian, sons of late Shambhu Mian, having one share. CS khata number 07 and 88 (vide item II and III of schedule B of plaint) were recorded in the names of only Ahlad Mian. Lands of CS khata number 86 and 202 (vide item number IV and V of schedule B were acquired by Ahlad Mian alone under registered patta dated 20.11.33 and he acquired exclusive title and possession over the same and of CS khata number 10 (vide item XI of schedule B) was recorded exclusively in the name of Ahlad Mian in CS, khatian. In short, disputed land of schedule II, III, IV, V, and VI, as described in schedule B of the plaint exclusively belonged to only Ahlad Mian. As regards land of CS khata number 67 (vide item I of schedule B), lokhu Mian (one of the raiyati share holder) died issueless in 1932, and his widow also died in 1936. The Lands which were in cultivating possession of lokhu Mian came to be in joint possession of Ahlad Mian, as well as Bulaki, Lodu and Utabali (sons of Shambhu Mian). Subsequently, Bulaki and Utabali also died long ago without leaving behind their any issue. In this way, the entire land in dispute were inherited by Ahlad Mian and Lodu Mian and, after their death by their heirs. It is further averred that the share of Lokhu Mian in CS khata number 67 (item number I of schedule B), who had died issueless in 1933, was subsequently partitioned between Elahi Mian and Sattar Mian (both sons of Ahlad Mian) one share and Lodu Mian, one share under registered deed of partition dated, 15.11.1961. It is further averred that Ahlad Mian had died, leaving behind two sons (Elahi and Sattar) as well as four daughters Ashu, Habu and Puttu and Nebu, Habu and Puttu have already sold their entire respective shares in entire land in dispute (schedule A of plaint) to plaintiff under registered sale-deed dated 12.8.67 and since then the plaintiff alone has acquired title and possession over the same. Subsequently, the plaintiff sold this very lands to Piyari Bibi (since deceased) and defendant number 6 and 7
5 Second Appeal No. 122 of 2014
by registered sale-deed dated 01.07.74. Ashu died in 1965 and her heirs are cited as defendant number 13 to defendant number 20. However, heirs of Habu, Nebu and Puttu @ Soleman Bibi had been cited as defendant number 39 to 42 as pro-forma defendants. It is further averred that Hanufa Bibi (defendant no.5) sold her entire share in the suit property to (late) Abdul Jabbar and, subsequently, the heir of late Abdul Jabbar (defendant number 1 and 2) had sold these very land to the plaintiff under registered sale-deed dated, 01.07.74. It is averred that for the sake of convenience, some lands are cultivated separately and some other land are cultivated jointly, but there has not been any partition by the metes and bounds. But now they are feeling inconvenience in joint possession. It is alleged that, without the consent and knowledge of the plaintiff and Principal defendants number 34 to 38, the principal defendants numbered 1 to 4 sold plot number 990 of khata number 67 to purchaser defendants number 44 to 46, which gave rise to cause of action; plaintiff demanded partition, which was refused; hence the suit.
On above grounds plaintiff sought relief for preliminary decree of partition by the metes and bounds of the land is described at item number 1 of schedule B of the plaint, carving out 11/36 share of the plaintiff and, further 19/288 share of the plaintiff in respect of item number II to VI of schedule A lands of the plaint.
The case of the defendants is that defendant number 23 and 24 filed their separate WS and contested the suit, joining hands with defendants number 21, 22 and 25 to 28. It is admitted that the averments made at para 1 to 7 of the plaint are correct; that, the averments made at para 8 to para 12 are also correct, though incomplete in as much as the plaintiff and his father, Abdul Sattar and uncle Elahi Mian and co-sharer Hafizuddin (defendant number 1), Rasul Gani (defendant number 2), besides other co-sharer- defendants had sold
6 Second Appeal No. 122 of 2014
their share in the suit property in favour of Habibul Rehman Ansari, father of these answering defendants as well as to these defendants under various registered sale deeds and therefore, the answering defendants have acquired their exclusive title and possession over these lands. It is further averred that all those plots in CS khata number 67, which were recorded in remarks column as in exclusive possession of Bulaki, Ladu and Utabali are coming in exclusive title and possession of these answering defendants and those plots were never held in joint title and possession. It is further averred that besides the above plots, land measuring 2.77 1/2 acres were allotted to Ladu Mian and his sons, the ancestors of these answering defendants by virtue of registered partition deed of 1961, in which Abdul Sattar, the father of plaintiff and Elahi Mian, the uncle of the plaintiff were first party and were also allotted their due share in the disputed khata number 67. Besides, Habibul Rahman Ansari, the father of answering defendants and these defendants themselves have purchased 3.02 1/2 acres, 1.02 1/2 acres, 4.41/2 of the land in CS khata number 67, 24 decimal in CS khata number seven, 22 decimal in CS khata number 86, and 82 decimal in CS khata number 202 from the plaintiff, his father Abdul Sattar, and from Elahi Mian, Hafizuddin Ansari, Rasool Gani Ansari and Insan Ansari out of their share, as well as from Rahiman Bibi and others who had purchased some lands from the recorded tenants and their heirs under several sale- deeds and thus the answering defendants are coming in exclusive title and possession over these lands which are also shown included in items I, II, IV and V of schedule A of the plaint. It is averred that the claim of the plaintiff that he has got 11/36th, share CS, number 67 is wrong. It is averred that in view of previous partition and also in view of subsequent sale and purchase of the lands in dispute, there is absolutely no unity of title and possession amongst the parties in respect to the lands in dispute.
A separate WS was filed on behalf of defendants numbered 1 to 4
7 Second Appeal No. 122 of 2014
and 6 and 7. It was averred that there was already effected complete partition of all lands belonging to the parties under registered partition deed of 1951. Further, it is denied that on the basis of alleged sale-deed dated 12.08.67, said to have been executed by Habu Bibi, Nebu Bibi, Solaman @ Puttu Bibi in favour of plaintiff, the plaintiff acquired exclusive possession over these lands as the said sale-deed was collusive in character. It is further averred that subsequent to the partition of 1961, there had taken place several registered sale-purchase of various plots of schedule A of the plaint inter-se between the parties and their predecessors, and so, there is no question of unity of title and possession amongst the parties in respect of the suit property.
Munni Bibi, defendant number 48 in her separate WS contended that she has purchased 0.08 decimal in plot number 1315-1316 in CS khata number 67 from Alam Gir under registered sale-deed dated 28.07.79, who had earlier purchased this land from Ishaq Ansari, defendant no.7 in the year 1974 under a registered sale-deed and that she has built a residential house over a portion of this land and is growing vegetables on remaining portion of this land as its exclusive owner.
A separate WS was filed on behalf of the defendant nos.15, 39, 40, 41 and 42. It is averred that Hanufa Bibi (defendant no.15) is the daughter of late Ashu Bibi, one of the daughters of Ehlad Mian; that she (the defendant no.15) sold her share of land in CS Khata No.7, 10, 67, 86, 88 and 202 to Abdul Zabbar, son of Elahi Mian under registered sale deed she subsequently sold these lands to plaintiff and thus, these defendants have no manner of concern with these lands and that the plaintiff has got exclusive title and possession over these lands. In other words, these defendants also state above inter-parties transaction in respect of some of the suit property.
A separate WS was filed on behalf of the defendant no.34 to 38.
8 Second Appeal No. 122 of 2014
They averred that they and the plaintiff are the heirs of late Abdul Sattar. There have broadly supported the averments of the plaint.
A separate WS was filed on behalf of the defendant nos. 21, 29, 30, 31, 32 and 33. These defendants come from the branch of Lodu Mian, who, alongwith Bulaki and Utabali had one share in CS Khata no.67. They averred that they have got no title, possession or interest over land at item no.2 to 6 of schedule-A of the plaint. They claim their share only in item no.1 (CS plot no.67) and averred that there was never previous partition by metes and bounds.
The defendant no.9 filed a separate WS. He claimed his share, being an heir of the branch of Elahi Mian, a son of Ahlad Mian, one of the recorded tenants of disputed khata. He further raised an issue of nonjoinder of necessary party as the issue of late Sarijan Bibi, a daughter of late Elahi Mian was not made party to this suit.
A separate WS was filed on behalf of the defendants no.50 to 52. They averred about the fact of previous partition as detailed above, and also about several transactions interse parties to the suit. They claim to have purchased some of the plot in dispute under registered sale deed and in a revisional survey these lands have been renumbered as RS Plot number 1477, under RS Khata number 313, standing in the name of the defendants. These defendants have got no concern with other lands.
Mr. Sahani, the learned counsel appearing on behalf of the appellant/ plaintiff submits that the learned courts have failed to consider that the plaintiff and the original principal defendant nos.7 to 38 are the descendants of Ahlad Mian and Shambhu Mian, defendant nos.39 to 49 are purchasers of the suit land recorded in the name of Ahlad Mian having two shares with other co-sharers and those shares of Shambhu Mian under Khata No.67 by subsequently partition in the year 1936 between the sons of Ahlad Mian on 15.11.1961 as well as the suit land was sold by the plaintiff to the two sons of Ahlad Mian by sale deed
9 Second Appeal No. 122 of 2014
dated 12.08.1969 and since then the plaintiff was in possession thereof. He further submits that the finding of the learned courts are vitiated on account of non-consideration of documentary evidence adduced by the plaintiff/ appellants. He further submits that the cause of action was different and the suit property was different. On these grounds, he submits that on this is a substantial question of law and this second appeal may kindly be admitted on this substantial question of law.
On the other hand, Mr. Afaque Rashidi, the learned counsel appearing on behalf of the respondent/ defendants submits that the learned trial court as well as the learned appellate court has rightly considered that there was already partition and that finding has been recorded considering the exhibits as well as the oral evidence and there are concurrent findings of both the learned courts and there is no substantial question of law involved in the present second appeal and thus, the second appeal is fit to be dismissed.
In view of the aforesaid submission of the learned counsels appearing on behalf of the parties, the Court has gone through the judgment of the learned trial court as well as the learned appellate court and finds that the learned trial court has framed eleven issues to decide the suit. Those 11 issues are as under:
10 Second Appeal No. 122 of 2014
schedule-A of plaint and as to whether it is a partial partition for some lands. Similarly the deed of partition no.19532 dated 02.7.1974 is between all the co-sharers and includes all the family properties or it is also a partial partition for some lands?
The learned trial court has taken issue nos.6,7,8,9 and 10 together
as they were inter-linked. The learned court has considered Exhibit-B/5 which was the document suggesting that Ilahi Mian partitioned the lands of his own share amongst his three sons, Abdul Jabbar, Samsuddin and Ishaque and he has partitioned the lands of Khata No.67 of Karmatand being plot nos.1068, 1067, 1069, 1063, 1064, 1065, 1066, 1068, 1041, 1042, 1601, 1048, 1315, 1316, 1377, 1379, 1069 and 1049 and according to deed of partition dated 15.11.1961 (Exhibit-A) only the plot no.1068 and 1048 are mentioned in the said deed of partition and other plots have not been mentioned which have been partitioned by Elahi Mian to his three sons by Exhibit-B/5. The Court has found from the Exhibit-B/4 that it is crystal clear that Elahi Mian sold lands of Khata No.67 of Mauza-Karmatand to his sons namely, Abdul Jabbar, Samsuddin and Ishaque and he has stated that these plots are under his Khas raiyati possession land and he has sold plot nos.879, 883, 884, 889, 1126, 1339, 1079, 1048, 1314, total area 1.11 ¼ decimals and plot no.1339, 1079 and 2048 of this deed are only included in the deed of partition dated 15.11.1961 (Exhibit-A). The learned court, however, after discussing the exhibits and the oral evidence, has found that in the
11 Second Appeal No. 122 of 2014
partition deed No.14753 dated 15.11.1961 and in partition deed No.19532 dated 02.07.1974 the property has not been included and the intention of the parties were much clear that inspite of execution of the aforesaid two partition deeds they have already separated and the landed property of schedule-‘A’ of the plaint and possessed the actual possession of the land and thereby they have sold the specific portion which have been occupied by them to the other co-sharers and all the co-sharers have got no knowledge of the specific sharers of the parties and therefore they have purchased the land from their co-sharers and their forefather found that the properties purchased by the plaintiff or order of Pahlad Mian are not the undivided property but they belong to them and exclusively and therefore they sold the same. The court further hold that in the present case there are various inter-se transaction between the co-sharers and aforesaid two partition deed goes to prove that the co-sharers are intended to partition of schedule-‘A’ lands by metes and bounds and thereafter they came to khas physical possession over the respective share of schedule-‘A’ land and therefore the inter-se transaction in the present case and partition deed No.19376 dated 02.07.1974 is strong circumstance to prove the partition in the co-sharers and accordingly there is no unity of title and possession between the plaintiff and the principal defendants and accordingly the issue no.6,7,8, 9 and 10 has been decided by the learned trial court against the plaintiff.
The learned appellate court has considered the submission of the learned counsels for appellant/plaintiff as well as the respondents and had elaborately discussed the argument as well as the finding of the learned trial court. The learned appellate court has considered that in paragraph no.26 of the evidence the plaintiff P.W.4 has stated by his written petition filed before the court and he has withdrawn from the previous partition suit T. (Partition) Suit No.49 of 1991 on 17.9.1992. The plaintiff and or any defendant have not filed the c.c. of the order
12 Second Appeal No. 122 of 2014
permitting the plaintiff of Title (Partition) Suit No.49 of 1991 to withdraw the suit. The learned appellate court found that there was no specific averment that the learned trial court had allowed the plaintiff to withdraw from the suit T.(Partition) Suit No.49 of 1991 with permission to file the suit on same cause of action. The learned appellate court has taken note of the Order XXIII Rule 1(3) of the C.P.C as well as Rule 1(4) of the C.P.C. and hold that the plaintiff withdraws from the suit without obtaining leave of the court to file fresh suit on the same cause of action and that is why he pleaded to file a fresh suit. The plaintiff himself has averred that the cause of action of the previous suit and the instant suit is same. There is no evidence on record that the learned trial court in previous suit allowed the plaintiff to withdraw from the suit and given leave to file a fresh suit. Accordingly, it was held by the learned appellate court that the suit is not maintainable as hit by Order XXIII Rule 1(4) of the C.P.C. which was missed by the learned trial court and the learned appellate court finding the position of law has discussed that. The learned appellate court has further framed the point no.2-whether there exist unity of title and possession amongst the parties in respect of suit property or not? and considered the exhibits as well as the evidence of P.Ws. and D.Ws. and has come to the conclusion that it is proved that the ancestors property partitioned amongst the co-sharers way back in the year 1961 and subsequently the branch of co-sharers against sub divided their share by registered partition suit in 1974 and it was further proved that one branch of co-sharers has held in the suit property with another branch of co-sharers under several registered sale deeds. The learned appellate court has held that it is well settled that the evidence of inter-se transaction of the suit property between the co-sharers is a very strong proof of previous partition and therefore the learned appellate court has held that the finding of the learned trial court with regard to no unity of title and possession amongst the parties in respect of the suit
13 Second Appeal No. 122 of 2014
property was found to be quite correct and in that view of the matter the appeal was dismissed.
The Court finds that the learned trial court as well as the learned appellate court has dealt with the entire aspect of the matter elaborately and these are the facts which have been considered by the learned two fact finding courts on the point of unity of title as well as partition. The learned trial court as well as the leaned appellate court has considered that for the same property the suit was filed and, in that view of the matter, the argument of Mr. Sahani, the learned counsel appearing for the appellant is not accepted by this Court. No perversity is shown. The High Court is not required to interfere with the facts discussed by the learned trial court as well as the learned appellate court sitting under Section 100 of the C.P.C. There is no substantial question of law involved in the present second appeal and, accordingly, Second Appeal No. 122 of 2014 is dismissed.
Pending petition, if any, also stands dismissed.
( Sanjay Kumar Dwivedi, J.)
SI/;
3 issues framed by the court
Whether the Second Appeal involves any substantial question of law under Section 100 of the C.P.C regarding the dismissal of the partition suit.
Whether the plaintiff's withdrawal from a previous suit without court permission bars the present suit under Order XXIII Rule 1(4) of the C.P.C.
Whether the evidence of inter-se transactions proves a prior partition by metes and bounds, defeating the claim of unity of title and possession.
Colour shows how this judgement treated each authority
NoneReferred
3 provisions across 1 enactments
Md. Tasir Ali Ansari
Saira Bibi
Sohrab Ansari
Imran Ansari
Halima Khatoon
Mushima Khatoon
SANJAY KUMAR DWIVEDI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
