Dismissed

Most Muneshwari And Ors. v. Smt Sushila Devi And Ors.

Jharkhand HC10 Apr 2023SA/51/2016

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC, the Jharkhand High Court dismissed the appeal as it found no perversity or substantial question of law. The Court upheld the concurrent findings of the lower courts that there was no partition of the suit property and that the sale deed executed by the former possessor was valid, hence the title of the respondents was confirmed.

What did the court decide?

Title suit decree in favour of the plaintiffs is affirmed; appeal dismissed without costs.

Most Muneshwari And Ors. Vs Smt Sushila Devi And Ors. — Partition | Jharkhand HC (2023)

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S.A.No.51 of 2016

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.51 of 2016

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(Against the judgment dated 06.10.2015 passed by learned District Judge-III, Hazaribagh in Title Appeal No.27 of 2009)

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(a) Horil Sao s/o late Premchand Sao

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(b) Jiblal Sao s/o late Premchand Sao

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All resident of village- Rud, P.O.- Dumraon, P.S. Ichak, DistrictHazaribagh.

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Ranjeet Gupta s/o late Harendra Sao

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Raj Kumar s/o late Harendra Sao

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Sachin Kumar s/o late Harendra Sao

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Sr. Nos.2 to 4 all are R/O village- Rud, P.O.- Dumraon, P.S. Ichak, District- Hazaribagh.

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Smt. Sangita Devi w/o Sri Kishore Sao D/o late Harendra Sao, R/O village- Kolghati, P.O.- Hazaribagh, P.S.- Sadar, Dist. Hazaribagh.

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Rukmini Devi w/o Shri Bisheshwar Sao & D/o late Premchand Sao, R/o village- Kabilasi, P.O.- Punai, P.S. Ichak, DistrictHazaribagh.

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Most. Jamni w/o late Kedar Sao & D/O late Premchand Sao, R/O village- Kenduwa, Chouparan, P.O. & P.S.- Chouparan, District- Hazaribagh.

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Tapeshwar Sao s/o Dilchand Mahato

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Laldhari Sao s/o late Dischand Mahato

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Most. Dhaneshwari w/o late Tulchand Sao.

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All 8 to 10 R/O village Mayatu, P.O.- Sultana, P.S.Katkamsandi, District- Hazaribagh

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Smt. Budhani Devi D/O late Dilchand Sao & w/o Sri Lohan Kala, R/O village- Chouparan, P.O.- Chouparan, P.S.Chouparan, district- Hazaribagh.

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S.A.No.51 of 2016

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Binu Devi @ Bina Devi D/O late Dilchand Mahato & w/o Sri Nand Kishore Sao, R/O village- Kishunpur, P.O. & P.S.Kishunpur, District- Chatra

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Rupchand Sahu s/o Chhaku Sahu

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Ruplal Sahu s/o late Anup Sahu

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Murli Sahu s/o late Anup Sahu

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Most. Panwa w/o late Anup Sao

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All 13 to 16 are R/O village Rud, P.O. Dumraon, P.S. Ichak, District-Hazaribagh.

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.... .... …. Defendants /Appellants/ Appellants Versus

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Smt. Sushila Devi w/o Shyam Lal Ram

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Resident of village Rud, P.O.- Dumraon, P.S.- Ichak, DistrictHazaribagh, Jharkhand.

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(a) Shyamsunder Sao s/o late Radha Devi & late Mahesh Sao @ Antu Sao

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(b) Mahendra Sao s/o late Radha Devi & late Mahesh Sao @ Antu Sao

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Sr. No. 2 (a) to 2 (c) are resident of village- Rud, P.O.- Dumraun, P.S. Ichak, District- Hazaribagh.

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(d) Saroj Devi D/O late Radha Devi & late Mahesh Sao @ Antu Sao and w/o Kinyu Sao, Resident of village- Piri, P.O.- Piri, P.S. Simariya, District- Chatra.

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(e) Funaki Devi D/o late Radha Devi & late Mahesh Sao @ Antu Sao and w/o Mahendra Sao, Resident of village- Mandu Dih, P.O.- Mandu, P.S.- Mandu, District- Ramgarh.

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.... .... …. Plaintiffs/Respondents/ Respondents

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Smt. Kaushalya Devi w/o Sri Sarju Sao & D/O late Premchand Sao, R/O village- Kabilasi, P.O.- Punai, P.S.- Ichak, District-

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S.A.No.51 of 2016

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Hazaribagh.

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Jitni Devi D/O late Anup Sao and w/o Kapildeo Sahu, R/O village- Rud, P.O.- Dumraon, P.S.- Ichak, District- Hazaribagh.

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Most. Dughani w/o late Dilchand Mahato, R/O- village Mayatu, P.O.- Sultana, P.S- Katkamsandi, District- Hazaribagh.

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Umesh Sahu s/o late Anup Sahu R/O village- Rud, P.O. Dumraon, P.S.- Ichak, District- Hazaribagh. .... .... …. Defendants/Appellants/ Proforma Respondents

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: For the Appellants Mr. Abhay Kumar Mishra, Advocate Mr. Shailendra Kumar Tiwari, Advocate

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For the Respondents : None

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P R E S E N T

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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

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No one turns up on behalf of the respondent in spite of repeated calls, hence, this appeal is heard and disposed of ex-parte against the respondent.

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This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment and decree of concurrence dated 06.10.2015 passed by learned District Judge-III, Hazaribagh in Title Appeal No.27 of 2009 by which the learned First Appellate Court dismissed the Title Appeal No.27 of 2009 and affirmed the judgment and decree passed by the trial court being the court of Munsif, Hazaribagh in Title Suit No.154 of 1988 dated 30.04.2009 whereby and where under the learned Munsif decreed the suit of the plaintiffs on contest against the defendants and restrained the defendants from causing any disturbance in the possession of the plaintiffs in respect of the suit land and the defendants, their legal heirs and agents were restrained from entering the suit land and directed the defendants to pay cost to the plaintiffs .

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S.A.No.51 of 2016

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The case of the plaintiffs in brief is that the suit land was recorded in Bakast in the name of Doman Sao son of Chunni Sao in the survey Khatiyan which was the exclusive property of Daman Sao and has been in his peaceful possession till he lived. Doman Sao died issueless and his wife Most. Jhamni died in or about 1943 when her share and interest passed to the surviving co-widow Chohni @ Mohini who came to own and possess the entire lands of Khata No.3 and half of the lands of Khata No.9 with limited life interest. One Bhuiyan Ram Modi got Money Suit No.34 of 1919 for an earlier debt and got a decree against Chohni @ Mohini. The property was auction sold in execution of the decree of the same and was purchased by one Sonu Mahto. Mostt. Chohni @ Mohini died on 12.03.1953. Chhaku Sao obtained delivery of possession over all the lands sold in auction by purchase from Sonu Mahto. The plaintiffs filed an application before the Circle Officer vide Mutation Case No.59 of 1979-80. The defendant No.1 and father of the defendant Nos.3 to 7 filed objection. The Circle Officer rejected the application vide his order dated 26.07.1980. The plaintiffs preferred an appeal against the order of the Circle Officer dated 26.07.1980 in the court of Land Reforms Deputy Collector, Hazaribagh and the Land Reforms Deputy Collector, Hazaribagh in Mutation Appeal No.112 of 1980 dated 24.02.1981 set aside the order of the Circle Officer dated 26.07.1980 and allowed the mutation of the plaintiffs. The defendants preferred a revision against the order of the Land Reforms Deputy Collector, Hazaribagh dated 24.02.1981 but the same was dismissed in the court of Additional Collector, Hazaribagh and the Additional Collector, Hazaribagh vide his order dated 30.09.1982 passed in M.R. No.06 of 1981, upheld the order of the Land Reforms Deputy Collector, Hazaribagh dated 24.02.1981. The defendants filed another revision before the Divisional Commissioner, N.C. Division, Hazaribagh against the order of the Additional Collector numbered as Mutation Revision No.130 of 1982 wherein the learned Commissioner vide order dated 15.03.1983, set aside the order of the Additional Collector. The plaintiffs filed C.W.J.C. No.996 of 1982 and the same was dismissed by the High Court vide order dated 13.07.1986 and the defendants claimed that the suit land in the hands of Chhaku Sao were his

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S.A.No.51 of 2016

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ancestral property and the defendants had share in the same. But the case of the plaintiffs is that Chhaku Sao did not partition the suit lands among his sons and the said Chhaku Sao had full rights and possession to transfer the suit land to the plaintiffs and the plaintiffs acquired the same by means of sale-deed dated 01.06.1978.

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In their written statement, the defendants challenged the maintainability of the suit on various technical grounds.

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In view of the rival pleadings of the parties, the learned trial court settled the following eleven issues:-

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(I) Is the suit maintainable in its present form?

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(II) Is there any cause of action for the suit?

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(II) Is the suit bad for non-joinder of necessary parties?

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(IV) Is the suit barred by law of limitation, acquiescence, estoppel, waiver and adverse possession?

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(V) When Doman died and whether Doman died in a state of jointness with Bhola and as a Karta of the joint family?

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(VI) Whether there was any partition between Bhola and Doman? If so, when?

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(VII) To what extent Chhaku had right, title, interest and possession over the suit land?

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(VIII) Whether title passed to the plaintiffs over the suit lands and beyond Chhaku’s 1/6^th joint share in the same?

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(IX) Whether the sale deed dt. 1.6.78 by Chhaku in favour of the plaintiffs is otherwise invalid, illegal and inoperative?

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(X) Whether there had been partition at the instance of Chhaku Sao through purchase, of all the lands recorded in the names of Bhola and Doman separately and/or jointly among his 5 sons?

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(XI) To what other relief or reliefs are the plaintiffs entitled?

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The learned trial court considered the oral testimony of the eight witnesses examined by the plaintiffs and the documents which have been marked as Ext. 1 to 15 as also 23 witnesses examined by the defendants and the documents which have been marked as Ext. A to U.

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The learned trial court first took up issue Nos.(IV) and (V) together and came to the conclusion that Doman Sao died in a state of separation from Bhola Sao and after the death of Doman Sao, his widows inherited life interest in the said property and decided both the issues in favour of the plaintiffs and against the defendants.

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Thereafter, the learned trial court took up issue Nos.(VI) and (VII) and after considering the evidence in the record held that there had not any partition of the property especially of Chhaku Sao in the year 1974 or

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S.A.No.51 of 2016

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in the year 1979 and decided the said two issues in favour of the plaintiffs and against the defendants.

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Then, the learned trial court took up issue No. (VIII) and after considering the evidence in the record, came to the conclusion that no anomaly and illegality can be seen in the sale-deed executed by Chhaku Sao in favour of the plaintiffs and decided the said issue in favour of the plaintiffs and also held that the plaintiffs acquired right of title to interest in the possession of the suit land by virtue of the sale-deed executed by Chhaku Sao in favour of the plaintiffs.

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Lastly, the learned trial court took up issue Nos.1, 2, 3 and 9 and in view of the findings of rest of the issues, concluded that the plaintiffs are entitled to get the reliefs claimed by them and the suit is maintainable in its present form and the plaintiffs have got cause of action for the suit and decreed the suit and allowed the relief as already indicated above.

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Being aggrieved by the judgment and decree passed by the trial court, the appellants preferred Title Appeal No.27 of 2009 in the court of Principal District Judge, Hazaribagh which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 13. The learned First Appellate Court made independent appreciation of the evidence in the record and like the learned trial court; took up issue Nos.(V), (VI) and (VII) together as framed by trial court and observed that Khatiyan Khata No.3 stands recorded in the name of Doman Sao whereas Khata No.9 stands recorded in the name of Doman Sao and Bhola Sao. The learned First Appellate Court observed that there is no dispute between the parties that Chhaku Sao inherited or got the suit property and mutated and obtained rent receipts. It is also not disputed that the plaintiff Nos. 1 and 2 purchased the suit land on 01.06.1978 vide sale-deed which was executed by Chhaku Sao. The learned First Appellate Court further observed that on the date of execution of the sale-deed in favour of the plaintiff Nos.1 and 2, Chhaku Sao was having right, title and interest over the suit land which he has validly transferred in favour of the plaintiff Nos.1 and 2 vide sale-deed marked Ext. 2. The learned First Appellate Court concurred with the finding of the trial court that the

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S.A.No.51 of 2016

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defendant has failed to establish that there was partition of the suit properties by Chhaku Sao between Chhaku Sao and his sons nor they could prove that the suit property was joint property of Doman Sao and Bhola Sao. The learned First Appellate Court also affirmed the other findings of the trial court after discussing the evidence and dismissed the appeal and affirmed the judgment and decree passed by the learned trial court.

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Mr. Abhay Kumar Mishra- learned counsel for the appellants submits that the findings of the learned First Appellate Court is perverse and thus, not tenable in law. It is next submitted that the learned First Appellate Court has failed to consider that Chhaku Sao being the next and nearest survivor filed Title Suit No.64 of 1953 as reversioner and got the decree, hence, the learned courts below ought to have held that the property was the ancestral property of Chhaku Sao and the defendants have share in it. Hence, it is submitted that both the judgment and decree passed by both the courts below be set aside by formulating appropriate substantial question of law and the suit of the plaintiffs be dismissed.

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Having heard the submission of the learned counsel for the appellants and after going through the materials available in the record, it is pertinent to mention here that though it is the case of the defendants that there was partition but as rightly answered by both the learned trial court as well as the learned First Appellate Court, they have not been able to establish such partition by way of any cogent evidence.

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Now, coming to the facts of this case; from the evidence regarding auction sell of 2.71 acres of land in the Money Suit and the consequential execution case from Mohini Devi it is crystal clear that after the death of Doman Sao, Jhamni Devi and Mohini Devi inherited the said portion of the suit land. The defendant No.1 who was examined as D.W-12 has admitted in para-45 of his deposition in cross-examination that land of Doman Sao and Bhola Sao was partitioned. The Khatiyan of Khata No.25 marked Ext.10/B also shows that the house of Doman Sao and Bhola Sao were shown separately. So, Doman Sao died in a state of separation and at the time of execution of the sale-deed there was no partition of the properties between Chhaku Sao and his sons. Under such circumstances,

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S.A.No.51 of 2016

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this Court is of the considered view that the concurrent finding of facts arrived at by both the courts below was not made by ignoring or excluding relevant materials or by taking into consideration irrelevant materials nor the findings of the courts below so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse and in the absence of any perversity in the concurrent finding of fact by both the courts below, there is no justifiable reason for this Court to interfere with the concurrent finding of facts by both the courts below and there is also no substantial question of law involved in this appeal. 17. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances without any costs. 18. Let a copy of this judgment be sent to the courts concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 10^th of April, 2023 AFR/ Animesh

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Most Muneshwari And Ors. v. Smt Sushila Devi And Ors.

Case brief

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Most Muneshwari And Ors. v. Smt Sushila Devi And Ors.

Case brief

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