Remanded

Tapan Ghosh And Ors. v. Bhabani Ghosh And Ors.

Jharkhand HC4 May 2023SA/256/2017

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court set aside the first appellate court's partial decree. The appeal court failed to address the trial court's finding that the plaintiff was not married to the deceased father and lacked unity of title. The matter is remanded for a fresh hearing on these material issues.

What did the court decide?

The judgment and decree of the first appellate court dismissed; the case remanded to the first appellate court to decide on maintenance, unity of title, and possession.

Tapan Ghosh And Ors. Vs Bhabani Ghosh And Ors. — Succession and Inheritance | Jharkhand HC (2023)

¶1

Second Appeal No. 256 of 2017

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.256 of 2017

¶3

(Against the judgment and decree dated 07.04.2017 passed by the learned Principal District Judge, Jamtara, in Title Appeal No. 51 of 2015)

¶4

------

¶5

Tapan Ghosh, son of Late Jagarnath Ghosh, resident of village – Dalabar, S.C. –Siarketia, P.O. Daldear, P.S. –Nala, District –Jamtara

¶6

Manjura Ghosh @ Manju Ghosh, daughter of Late Jagarnath Ghosh, wife of Damodar Ghosh, resident of village –Tal Pokharia, P.O. – Jaipur, P.S. –Rajnagar, District –Birbhum, W.B.

¶7

Furni @ Juli Ghosh, daughter of Late Jagarnath Ghosh, wife of Madan Ghosh, resident of village –Damadhara, P.O. –Khajuri, P.S. – Bagdehari, District –Jamtara

¶8

.... .... …. Appellants

¶9

Versus

¶10

Bhabani Ghosh, W/o Late Jagarnath Ghosh

¶11

Pratima Ghosh, D/o Late Jagarnath Ghosh Both resident of village –Dalabar, S.C. –Sairketia, P.O. –Dalabar, P.S. – Nala, District -Jamtara

¶12

... .... …. Respondents

¶13

------ For the Appellants : Mr. Atanu Banerjee, Advocate : Mr. Durga C. Mishra, Advocate

¶14

PRESENT

¶15

HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶16

By the Court:- Heard the learned counsel for the appellants.

¶17

2 notice has been served the Though validly upon

¶18

respondents yet no one appeared on behalf of the respondents’ inspite of repeated calls. Hence, this appeal is heard ex-parte against the respondents.

¶19

3 This second appeal under Section 100 of Code of Civil Procedure has been preferred against the judgment and decree dated 07.04.2017 passed by the first appellate court, being the court of learned Principal District Judge, Jamtara, in Title Appeal No. 51 of 2015 whereby and where under the learned first appellate court has reversed the judgment and decree passed by the learned trial court

¶20

¶21

Second Appeal No. 256 of 2017

¶22

being the court of Civil Judge (Senior Division)-III, Jamtara in Title (P) Suit No.02 of 2008 dated 22.07.2015 and allowed the appeal in part and held that the plaintiff no.2 –Pratima Ghosh will get 1/5^th share in schedule A, B, & C of the suit properties but has not in express terms, set aside the judgment and decree of the learned trial court by which the learned trial court dismissed the suit of the plaintiffs on contest, filed with a prayer for preliminary decree of 1/6^th share of plaintiff no.1 and 1/6^th share of the plaintiff no.2 out of the suit properties and also with the prayer of final decree carving out the share of the plaintiffs in accordance with the preliminary decree, delivery of possession through process of the court, costs of the suit and any other relief or reliefs.

¶23

4 The case of the plaintiffs in brief is that the parties to the suit are Bengali Gowala and they are governed by Dayabhaga School of Hindu Law. The husband of the plaintiff no.1, who is the father of the plaintiff no.2 namely Jagannath Ghosh married twice in his life time. The first wife was Sandhya Ghosh. From Sandhya Ghosh, Jagannath Ghosh has one son who is the defendant no.1 and two daughters who are the defendant nos. 2 & 3 respectively of the suit. It is the further case of the plaintiffs that as Sandhya Ghosh left the house of Jagannath Ghosh with her son and daughters, Jagannath Ghosh experiencing difficulty in household affairs, in presence of his motherKamla Ghosh, married the plaintiff no.1 –Bhabani Ghosh at Dewaleshwar Temple and started living with her as man and wife and fourteen years prior to filing of the suit, Bhabani Ghosh was

¶24

¶25

Second Appeal No. 256 of 2017

¶26

blessed with a daughter through Jagannath Ghosh, who is the plaintiff no.2. As per the school admission register as well as identity card, the date of birth of the plaintiff no.2 is 12.03.1995. The plaintiffs further pleaded that in the year 2000, by a family settlement, Jagannath Ghosh allotted 8 bighas of land to the plaintiff no.1 and the plaintiffs have been in peaceful possession of those lands. Jagannath Ghosh died on 24.07.2007. The parties are in joint possession over the properties including trees over the suit land and there has been no partition by metes and bounds.

¶27

5 It appears that originally there were four defendants and the defendant no.2 being Sandhya Ghosh- wife of Jagannath Ghosh. After her death, her name has been struck of and the two daughters of Sandhya Ghosh who are the defendant nos. 3 and 4 of the suit are renumbered as defendant nos. 2 & 3. In their joint written statement, the defendants challenged the maintainability of the suit on various technical grounds and pleaded that the plaintiffs are strangers to the family and does not have any relationship at all with Jagannath Ghosh, hence the plaintiffs have no right of inheritance of property of Jagannath Ghosh nor there is unity of title between the plaintiffs and defendants. Hence, they prayed that the suit of the plaintiffs be dismissed. They also pleaded that Bhavani never married Jagannath.

¶28

6 On the basis of the rival pleadings of the parties, the trial

¶29

court settled the following six issues which are as under:-

¶30

(i) Whether the suit is maintainable?

¶31

(ii) Whether the plaintiffs have any cause of action for the suit?

¶32

(iii) Whether Bhabani Ghosh is the second wife of Late Jagannath Ghosh?

¶33

¶34

Second Appeal No. 256 of 2017

¶35

(iv) Whether the plaintiffs have got unity of title and unity of possession over the properties in suit or not?

¶36

(v) Whether the plaintiffs are entitled for the reliefs claimed?

¶37

(vi) To what other reliefs the plaintiffs are entitled to?

¶38

7 In support of his case, the plaintiffs examined seven

¶39

witnesses and proved the documents which have been marked Ext.1 to 9/c whereas from the side of the defendants, eight witnesses were examined. The defendants have also proved the documents which have been marked Ext. A to C.

¶40

8 The learned trial court first took up issue no. (iii) and after considering the evidence in the record, came to the conclusion that the claim of the plaintiffs that the plaintiff no.1 –Bhabani Ghosh is the second wife of Jagannath Ghosh is not proved and answered the issue no.(iii) in favour of the defendants and against the plaintiffs. The learned trial court thereafter took up issue no.(i) and held that as the trial court has already held and answered issue no.(iii) by holding that the plaintiff no.1 is not the second wife of Jagannath Ghosh, hence the identity of the plaintiffs as family members of the recorded tenant cannot be established; therefore, the partition suit is not maintainable and went on to hold that the suit is not maintainable in its present form. The learned trial court thereafter took up issue no.(ii) and held that the plaintiffs have no right to partition the suit property, therefore, there is no cause of action for filing the suit. In respect of issue no.(iv), the learned trial court held that there is no evidence in the record to show any unity of title and possession between the plaintiffs and the defendants. Lastly, the learned trial court took up

¶41

¶42

Second Appeal No. 256 of 2017

¶43

issue nos. (v) & (vi) and held that the plaintiffs are not entitled to any reliefs claimed and decided the issues against the plaintiffs and in favour of the defendants and dismissed the suit.

¶44

9 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs preferred Title Appeal No.51 of 2015 in the court of learned Principal District Judge, Jamtara which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

¶45

10 The learned first appellate court formulated two question of

¶46

fact as well as law for just decision of the appeal which are as under:-

¶47

(A) Whether findings of the learned lower court on issue no. III “whether Bhabani Ghosh is the 2^nd wife of Jagannath Ghosh” is sustainable in the eye of law as well as facts or not? (B) Whether minor Partima Ghosh (plaintiff no.2) being as child of Late Jagarnath Ghosh born through plaintiff no.1, is entitled for her share in the suit properties or not?

¶48

11 The learned first appellate court first considered point no.

¶49

(A) and on the basis of the Ext.A which is the entry in the school admission register of the plaintiff no.2, the Ext.3 which is the school identity card of the plaintiff no.2, Ext.6 which is the family ration card of Jagannath Ghosh, Ext. 7 which is the voter identity card of the plaintiff no.1 of the year 2006, the learned first appellate court observed that the so called marriage between Late Jagannath Ghosh and Bhabani Ghosh is void ab-initio and as such the status of Bhabani Ghosh as widow of Late Jagannath Ghosh cannot be accepted and the findings of the lower court to this extent is correct and require no interference. Then, considering the provision of Section 16(3) of the

¶50

¶51

Second Appeal No. 256 of 2017

¶52

Hindu Marriage Act, 1955 as well as the Judgment of Hon’ble Supreme Court of India, in the case of Jinia Keotin & Ors. vs. Kumar Sitaram Manjhi & Ors. , reported in (2003) 1 SCC 730 , the learned first appellate court came to the conclusion that the plaintiff no.2 being an illegitimate child is entitled to 1/5^th share of the suit property and allowed the appeal in part as already indicated above. 12 At the time of admission of this appeal vide order dated 05.11.2019, the following substantial question of law was formulated by the learned predecessor Judge in the roster which reads as under:-

¶53

“Whether the appellate court below proceeded to decide the appeal in teeth of violation of Order XLI Rule 31 C.P.C.”

¶54

13 Mr. Atanu Banerjee, the learned counsel appearing for the appellants submits that there is no dispute regarding the principle of law settled by the Hon’ble Supreme Court of India in the case of Jinia Keotin & Ors. vs. Kumar Sitaram Manjhi & Ors. (supra) but for application of the ratio of that Judgment, the condition precedent is that there has to be a marriage between the parents of the child born, may be a void one, but the facts of this case is that there is absolutely no marriage between the plaintiff no.1 and Jagannath Ghosh and it is the consistent case of the defendants that the plaintiffs are strangers to the family of Jagannath Ghosh and the learned trial court has in no uncertain manner has held in respect of issue no.(iii) that the claim of the plaintiff that she is the second wife of Jagannath Ghosh is not proved and in discussion of the issue no.(i), the learned trial court has observed that the court found that the plaintiff no.1 is not the second

¶55

¶56

Second Appeal No. 256 of 2017

¶57

wife of Jagannath Ghosh and the identity of the plaintiff no.1 as family member of the recorded tenant could not be established, therefore, the partition suit cannot be maintained. It is next submitted by Mr. Banerjee that in view of categorical finding of the learned trial court that there is no marriage at all between the plaintiff no.1 and Jagannath Ghosh, so the first appellate court without reversing such finding of the learned trial court has erred by allowing the suit in part that too without setting aside the judgment and decree of dismissal of the suit passed by the trial court. It is then submitted by Mr. Banerjee that without any categorical finding by the learned first appellate court that there was a marriage between the plaintiff no.1 and Jagannath Ghosh, may it be void or otherwise, certainly the learned first appellate court ought not have decreed the appeal in part. Hence, it is submitted that the judgment and decree passed by the learned first appellate court being illegal and not sustainable in law be set aside.

¶58

14 Having heard the submissions made at the Bar and after going through the materials in the record, this Court has no hesitation in accepting the submission of Mr. Banerjee, the learned counsel for the appellant that the ratio of Jinia Keotin & Ors. vs. Kumar Sitaram

¶59

Manjhi & Ors. (supra) can be applied to such cases where there has been a marriage between the parents of the child claiming partition in the property of its parents and as rightly submitted by Mr. Banerjee, this Court also finds that the learned first appellate court has neither reversed the finding of the learned trial court as mentioned in respect

¶60

¶61

Second Appeal No. 256 of 2017

¶62

of issue no.(iii) and issue no.(i) that the plaintiff no.1 could not establish her identity as family member of the recorded tenant, therefore a partition suit is not maintainable. Further, this Court also finds that there is no categorical finding of the learned trial court that there is unity of title and possession between the plaintiff no.2 and the defendants; which is a sine-qua-non for passing a preliminary decree of partition between the parties to a suit. Of course the learned first appellate court has discussed the evidence put forth by the plaintiffs in support of the fact that Jagannath Ghosh was the father of the plaintiff no.2 but in the absence of any categorical finding by the learned first appellate court, in the considered opinion of this Court, the learned first appellate court has erred in complying the requirement of Order XLI Rule 31 of the Code of Civil Procedure and the impugned judgment and decree is not sustainable in law as part of the appeal has been allowed without setting aside the judgment and decree of dismissal of the suit without any categorical finding that there was a marriage between the parents of the plaintiff no.2, may be void or otherwise, and that there is unity of title and possession.

¶63

15 Accordingly, the impugned judgment and decree dated 07.04.2017 passed by the first appellate court, being the court of learned Principal District Judge, Jamtara, in Title Appeal No. 51 of 2015 being not sustainable in law is set aside.

¶64

16 The case is remanded to the first appellate court to pass a fresh judgment after giving opportunity of being heard to both the

¶65

¶66

Second Appeal No. 256 of 2017

¶67

parties and by deciding as to whether, at all there is marriage between the plaintiff no.1 and Jagannath Ghosh as also whether, there is unity of title and possession between the plaintiffs and the defendants in respect of the suit land.

¶68

17 Since, it is a year old matter, the learned first appellate court being the court of learned Principal District Judge, Jamtara or the person in-charge is directed to pass a fresh judgment as soon as possible, preferably within a period of six months from the date of this Judgment.

¶69

18 In the result, this appeal is disposed of as aforesaid, but under the circumstances without any costs.

¶70

19 Let a copy of this Judgment along with the Lower Court Records be sent to the court concerned forthwith.

¶71

(Anil Kumar Choudhary, J . )

¶72

High Court of Jharkhand, Ranchi Dated the 4^th May, 2023 AFR/ Sonu-Gunjan/-

¶73

Tapan Ghosh And Ors. v. Bhabani Ghosh And Ors.

Case brief

What is this about?

What did the court decide?

Tapan Ghosh And Ors. v. Bhabani Ghosh And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mukesh Kumar Singh Alias Mukesh Singh Vs the State of Jharkhand

Sandeep Kumar Jaiswal Vs the State of Jharkhand

Probier Dutta Alias Ashish Dutta Alias Prabir Dutta Vs the State of Jharkhand

MD Sarfaraz Alam Vs the State of Jharkhand

Manish Kumar Mandal Vs State of Jharkhand

Gorang Roy Alias Gorang Rai Alias Gorong Roy Vs the State of Jharkhand