Dismissed¶91

Lileshwar Singh v. Tulsi Singh And Ors.

Jharkhand HC5 Dec 2024SA/15/2017

Case brief

AI extract

What is this about?

S.A. No.15 of 2017; High Court of Jharkhand at Ranchi; Anil Kumar Choudhary, J.; second appeal under Section 100 Code of Civil Procedure; Partition Suit No. 79 of 1998; Partition Appeal No.25 of 2008; Subordinate Judge-II / District Judge-VII Palamau Daltonganj; sale deed dated 05.05.1943 Ext. A/1; Sardar Singh to Bipti Cherain daughter-in-law; outright sale; unity of title and possession; 9.68 ¾ acres excluded from partition; 3.17 ¼ acres; 1/3rd share each; perversity of concurrent findings; no substantial question of law; dismissed without costs; Benami Transaction Prohibition Act 1988; Mutation Case No. 126 of 1960-61; Mutation Appeal No. XV/22 of 1961-62.

What did the court decide?

None; the second appeal was dismissed as without merit, without any costs. ¶91

Lileshwar Singh Vs Tulsi Singh And Ors. — Jharkhand HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

None; the second appeal was dismissed as without merit, without any costs.

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Issue for consideration

Whether both the courts below misconstrued the recitals of the sale deed marked Ext. A/1 in holding it legal and valid, such that the sale deed dated 05.05.1943 conferred no right, title or interest on the purchaser. +3 more

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Court's answer

There is no pleading by the plaintiff that Sardar Singh was not competent to transfer the 9.68 ¾ acres to Bipti Cherain, his daughter-in-law; the plaintiff's only contention was that the sale was made to save the property from being auctioned for Sardar Singh's debts.

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Ratio / Principle

The sale deed marked Ext. A/1 is a registered sale deed whose recital and contents show it to be an outright sale, the right of sale being undisputedly vested with Sardar Singh.

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Key takeaways

The concurrent finding of fact of both courts below that there is no material to suggest the sale deed Ext. A/1 was without consideration was arrived at without excluding any admissible evidence or considering any inadmissible evidence, and therefore cannot be blamed as perverse.ratio¶85
Both courts below committed no perversity in holding that the 9.68 ¾ acres of land already transferred exclusively to Bipti Cherain by Sardar Singh is not open to be partitioned.ratio¶89

Detailed headnote1 paragraphs

Second appeal (S.A. No.15 of 2017, High Court of Jharkhand at Ranchi; decided 5th December, 2024; Anil Kumar Choudhary, J.) preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 29.09.2016 of the learned District Judge-VII, Palamau at Daltonganj in Partition Appeal No.25 of 2008, which by a decree of concurrence had affirmed the judgment and decree in Partition Suit No. 79 of 1998 and dismissed the appeal on contest. Both courts below had held that the 9.68 ¾ acres alienated by the registered sale deed dated 05.05.1943 (Ext. A/1) by Sardar Singh in favour of Bipti Cherain was an outright sale not open to partition, the plaintiff-appellant, defendant no.1 and defendant nos.2 to 9 each holding a 1/3rd share over the remaining 3.17 ¼ acres. This Court found no pleading that Sardar Singh was incompetent to transfer, held the concurrent findings of fact not perverse, found the plaintiff had failed to establish unity of title and possession over the 9.68 ¾ acres, concluded there was no substantial question of law, and dismissed the appeal without costs.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No.15 of 2017

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------

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1 (a) Lileshwar Singh, s/o late Kailash Singh

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1 (b) Ramswarup Singh, s/o late Kailash Singh Both resident of Village: Charabar, P.S.-Chainpur, P.O.-Purabdiha, Dist.-Palamau (now Medininagar)

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1 (c) Phula Devi, d/o late Kailash Singh, w/o Dahru Singh, resident of Village-Bahera, P.O.-Salatua, P.S.-Chainpur, Dist.-Palamau (now Medininagar)

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1 (d) Phul Bhagini Devi, d/o late Kailash Singh, w/o Krishna Singh, resident of Village-Ghorhi, P.O.-Polpol, P.S.-Chainpur, Dist.-Palamau (now Medininagar)

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.... .... …. Appellants

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Versus

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Tulsi Singh, s/o late Khelawan Singh,

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Kawalnath Singh, s/o late Katai Singh

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(a) Kawalnath Singh, s/o late Katai Singh, resident of Village-Sokra, P.O. & P.S.-Chainpur, Dist.-Palamau

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(a) Kameshwar Singh, s/o late Butai Singh

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(b) Balli Singh, s/o late Butai Singh

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(d) Sunaina Kuer, w/o late Tapeshwar Singh (daughter-in-law of late Butai Singh)

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(e) Dinesh Singh, s/o late Tapeshwar Singh (grandson of late Butai Singh)

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(f) Akhilesh Singh, s/o late Tapeshwar Singh (grandson of late Butai Singh)

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(g) Harbansh Singh, late Tapeshwar Singh (grandson of late Butai Singh)

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(h) Pushpa Devi, w/o Ramesh Singh, d/o late Tapeshwar Singh (granddaughter of late Butai Singh)

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All resident of Village: Charabar, P.S.-Chainpur, P.O.-Purabdiha, Dist.-Palamau (now Medininagar)

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Rabita Kuer, w/o late Sukon Singh

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Mukesh Singh, s/o late Sukon Singh

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Murdon Daui, w/o Binod Singh

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Sl. Nos. 1, 2, 5 to 7 are resident of Village-Sokra, P.O.- Chanpur, P.S.Chanpur, Dist.-Palamau

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Basudeo Singh, s/o late Tribeni Singh

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Jugashar Singh

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Doman Singh

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Rajondra Singh

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Prabhu Singh

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Sl. No. 9 to 11 are sons of late Amerika Singh

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Sl. No. 8 to 11 residents of Village: Charabor, P.S.-Chainpur, P.O.Purabdiha, Dist.-Palamau

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... .... …. Respondents

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------ For the Appellants : Mr. Prabhat Kumar, Advocate

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Second Appeal No. 15 of 2017

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: Mr. Diwakar Jha, Advocate : Ms. Kumari Rajna Singh, Advocate

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PRESENT

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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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This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 29.09.2016 passed by the learned District Judge-VII, Palamau at Daltonganj in Partition Appeal No.25 of 2008 whereby and where under, by a decree of concurrence, the learned first appellate court affirmed the judgment and decree passed by the learned Subordinate Judge-II, Palamau at Daltonganj in Partition Suit No. 79 of 1998 and dismissed the appeal on contest.

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The brief fact of the case is that the plaintiff-appellant filed Partition Suit No. 79 of 1998 in the court of Subordinate Judge-II, Palamau at Daltonganj with the prayer for preliminary decree for partition to the extent of 1/3^rd share of the plaintiff over the suit land and also final decree of partition by putting the plaintiff in exclusive possession of the takhta allotted to the plaintiff in the final decree proceeding through process of the court. Declaration that because of the ouster of the pro-forma defendant no.10, the title of defendant no.10 ceased in respect of the suit land. Cost of the suit and other reliefs.

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The case of the plaintiff in brief is that, the suit land was recorded in the last cadastral survey and settlement operation in

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the name of Sardar Singh. Sardar Singh had two wives. The

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Second Appeal No. 15 of 2017

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plaintiff is the descendant of Sardar Singh through his wife Butani and her son Mallu Singh while the defendant no.1 is the descendant of Khelawan Singh who is the son of Nauki Devi- the second wife of Sardar Singh and the defendant nos.2 to 9 are the descendants of Sardar Singh through his second wife and her son Triveni Singh. The defendant no. 10 is the brother of plaintiff being the son of Mallu Singh but the defendant no.10 is settled in his inlaws house as ghardamad therefore, the plaintiff acquired total 1/3^rd share of the property of Sardar Singh through his father Mallu Singh, who has two other step brothers being Triveni Singh and Khelawan Singh from his step-mother Nauki Devi- wife of Sardar Singh. Therefore, the plaintiff claimed 1/3^rd share. It is also the case of the plaintiff that Sardar Singh executed a forged sale deed on 05.05.1943 in respect of 9.68 ¾ acres of suit land in the name of Bipti Cherain wife of Triveni Singh to save the properties from the clutches of creditors, though such forged sale deed did not convey any right, title and interest in favour of Bipti Cherain. At the time of vesting of zamindari , only Sardar Singh was shown as a raiyat but Bipti Cherain was not shown as a raiyat in possession, in the return filed by the ex-landlord. The State of Bihar recognized Mallu Singh, the father of the plaintiff as raiyat of suit land by entering his name in demand Register-II and the father of the plaintiff got rent receipts by the State of Bihar, since more than 42 years with regard to the suit lands. The plaintiff claimed that there is unity of title and possession between the plaintiff and the defendant nos.1 to 9. The plaintiff filed Partition Suit No. 87 of

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Second Appeal No. 15 of 2017

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1990 in the court of Munsif, Palamau but the suit was withdrawn by the plaintiff with permission to file fresh suit. There is no partition by metes and bounds amongst the parties to the suit.

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The defendant no.1 in his written statement challenged the maintainability of the suit on various technical grounds and further pleaded that there is no unity of title and possession over the suit land between the parties to the suit. The defendant no.1 admitted that the suit was originally recorded in the name of Sardar Singh but pleaded that the land of khata no.59 was recorded in the name of Sardar Singh and Mahipat Singh and legal heirs of Mahipat Singh has not been made party to the suit hence, the suit is bad for non-joinder of necessary parties. The defendant no.1 next pleaded that Sardar Singh died leaving behind four sons and all were having 1/4^th share each. It is then pleaded that after the death of Raghurai Singh, his two brothers Triveni Singh and Khelawan Singh inherited the share half and half. The defendant no.1 further pleaded that the plaintiff is entitled to 1/4^th share of the suit land and also pleaded that Bipti Cherain derived no title or possession on the basis of the forged sale deed dated 05.05.1943 and the defendant nos.2 to 9 have no right to claim the suit land on the basis of sham transaction. The defendant no.1 claimed that the

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plaintiff is entitled to 1/3^rd share.

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The defendant nos.2 to 9 in their written statement challenged the maintainability of the suit on various technical grounds and further pleaded that Bipti Cherain, consequent upon the execution of the sale deed dated 05.05.1943 by Sardar Singh got

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Second Appeal No. 15 of 2017

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right, title, interest and possession of the land sold in her favour hence, no action having been taken by anybody in respect of the same, the present suit is barred by waiver, estoppel and acquiescence as well as limitation. Bipti Cherain has sufficient means to purchase the part of the suit land from Sardar Singh, being the only daughter of her rich father so the joint property that remained after the death of Sardar Singh was 3.17 ¼ acres of land. Bipti Cherain used to pay rent to the ex-landlord and after vesting of the land with the State, Bipti Cherain filed a petition before the Circle Officer for mutation of her name vide Mutation Case No. 126 of 1960-61. Mallu Singh and Khelwan Singh filed objection to the petition of Bipti Cherain which was rejected by the Circle Officer and mutation was allowed vide order dated 03.06.1961. Mallu Singh and Khelawan Singh filed appeal before the Additional S.D.O., Daltonganj vide Mutation Appeal No. XV/22 of 1961-62 but the same was also dismissed vide order dated 24.03.1962. Sardar Singh died in the month of September, 1943 so there was no question of submitting return by ex-landlord in the year 1955-56 in the name of Sardar Singh.

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The defendant no.10 in his written statement admitted the case of the plaintiff and prayed that the suit of the plaintiff be decided and decreed in favour of the plaintiff.

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On the basis of rival pleadings of the parties, the learned trial court settled the following eight issues:-

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(I) Is the suit as framed maintainable? (II) Has the plaintiff got cause of action of the suit? (III) Is the suit barred by the law of Limitation and Benami Transaction Prohibition Act 1988?

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Second Appeal No. 15 of 2017

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(IV) Whether the plaintiff’s suit is barred by non-joinder of necessary parties?

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(V) Is there unity of title and unity of possession between the parties over the suit lands?

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(VI) Is the plaintiff entitled for 1/3 share in the suit lands?

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(VII) Whether the plaintiff is entitled for preliminary decree, final decree and possession over the takhta carved out in his favour?

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(VIII) To what relief or reliefs if any the plaintiff is entitled?

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In support of his case, the plaintiff examined altogether four witnesses and proved documents which have been marked Ext. 1 to Ext. 5/a. On the other hand, from the side of the defendant no.1 three witnesses were examined and the defendants also proved the documents which have been marked Ext. A to Ext. C/1.

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The learned trial court first took up issue nos. (V), (VI) and (VII) and considering the evidence in the record came to the conclusion that the plaintiff, defendant no.1 and defendant nos.2 to 9 each have 1/3^rd share of the suit property; being the descendants of three sons of Sardar Singh from his two wives. There was no partition between the parties to the suit and coparceners of the joint Hindu family were cultivating their land, as per their convenience hence, the plaintiff is entitled to partition for 1/3^rd share of the joint family property left by Sardar Singh and answered the issue nos. (V), (VI) and (VII) in favour of the plaintiff. The learned trial court next took up issue no. (III) and considering the evidence in the record that land of 9.68 ¾ acres has been mutated in the name of the purchaser from Sardar Singh hence the defendant nos.2 to 9 cannot be denied right, title and possession over the 9.68 ¾ acres of land purchased by Bipti Cherain nor the

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Second Appeal No. 15 of 2017

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plaintiff has locus standi to challenge the said sale deed executed by Sardar Singh in favour of Bipti Cherain, as the period of limitation is over since long hence, the plaintiff no.1 has no right, title and interest over the said 9.68 ¾ acres of land hence, the suit so far as the declaration that the sale deed executed by Sardar Singh in favour of Bipti Cherain is barred by limitation therefore, the scope for challenging the said sale deed executed by Sardar Singh in favour of Bipti Cherain is over. The learned trial court next took up issue no. (IV) and considering the materials in the record found that the plaintiff ought to have impleaded his brother Arjun Singh hence, the suit is bad for non-joinder of necessary party. Lastly the learned trial court took up issue nos. (I), (II) and (VIII) together and considering the materials in the record came to the conclusion that unity of title and possession in respect of 9.68 ¾ acres of land is not claimed hence, the said 9.68 ¾ acres of land is not to be partitioned and the plaintiff, defendant no.1 and the defendant nos.2 to 9 together have 1/3^rd share each, over the rest 3.17 ¼ acres of land and passed a preliminary decree accordingly.

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Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Partition Appeal No.25 of 2008 in the court of Principal District Judge, Palamau at Daltonganj which was ultimately heard and disposed of by the learned first appellate court; by the impugned judgment and decree.

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The learned first appellate court on the basis of the materials in the record and the submissions made before it, formulated the following three points for determination: -

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Second Appeal No. 15 of 2017

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(I) Whether the plaintiff/appellant is entitled for partition of 1/3 share in the suit land?

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(II) Is there unity of title and unity of possession between the parties over the suit lands?

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(III) Whether the plaintiff has cause of action and suit as framed is maintainable?

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The learned first appellate court first took up the point for determination nos. (I) and (II) together and made independent appreciation of the evidence in the record and came to the conclusion that there is nothing in the record which create any suspicion regarding the legality and validity of the sale deed marked Ext. A/1 and came to the conclusion that the plaintiff is entitled to 1/3^rd share over the suit land to the extent of 3.17 ¼ acres of land and thus the learned trial court has rightly decreed the suit. The learned first appellate court next took up the point for determination no. (III) and considering the evidence in the record arrived at the conclusion that there is unity of title and possession between the parties in respect of 3.17 ¼ acres of land and the plaintiff has valid cause of action in respect of the suit land and the suit as framed is maintainable and decided the point for determination no. (III) accordingly and dismissed the appeal while affirming the judgment and decree passed by the learned trial court.

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It is submitted by the learned counsel for the appellants that both the courts below have misconstrued the recitals of the sale deed marked Ext. A/1 while holding the same to be legal and valid. It is next submitted by the learned counsel for the appellants that both the courts below have failed to consider that the sale deed dated 05.05.1943 marked Ext. A/1 has not conferred any

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Second Appeal No. 15 of 2017

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right, title and interest to the purchaser as mentioned in the sale deed. Hence, it is submitted that the judgment and decree passed by the both the courts below being not sustainable in law be set aside and the suit of the plaintiff be decreed in respect of the entire suit land; after formulating appropriate substantial question of law.

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Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that there is no pleading of the plaintiff that Sardar Singh was not competent to transfer the land measuring 9.68 ¾ acres of land in favour of Bipti Cherain his daughter-in-law. The only contention of the plaintiff is that the same was made for the purpose to save the said property from being auctioned in respect of debts of Sardar Singh. It is needless to mention here that in view of the fact that the sale deed which has been marked Ext. A/1 is a registered sale deed and the recital and contents of the same goes to show that the said sale deed marked Ext. A/1 is an outright sale which right of sale was undisputedly vested with Sardar Singh.

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Under such circumstances, as the finding of fact has been arrived at by both the courts below on the basis of the evidence in record that there is no material to suggest that the sale deed marked Ext. A/1 was without consideration. Such finding of facts has been arrived at by both the courts below by not excluding any admissible evidence or considering any inadmissible evidence. Such finding of fact cannot be termed outrageously defying

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Second Appeal No. 15 of 2017

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logic incurring the blame of being perverse.

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Under such circumstances, this Court is of the view that both the courts below have not committed any perversity in holding that 9.68 ¾ acres of land having been already transferred exclusively to Bipti Cherain by Sardar Singh is not open to be partitioned. The plaintiff having failed to establish that there is unity of title and possession in respect of the same, between the parties to the suit.

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In view of the discussions made above, there is absolutely no substantial question of law involved in this appeal.

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Accordingly, this second appeal being without any merit is dismissed but under the circumstances without any costs.

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Let the copy of the Judgment be sent to the learned court

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concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 5^th December, 2024 AFR/ Sonu-Gunjan/-

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Second Appeal No. 15 of 2017

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Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment and decree dated 29.09.2016 in Partition Appeal No.25 of 2008 whereby, by a decree of concurrence, the learned first appellate court affirmed the judgment and decree passed in Partition Suit No. 79 of 1998 and dismissed the appeal on contest.¶41
learned District Judge-VII, Palamau at Daltonganj · 29.09.2016
Prior proceeding
Partition Suit No. 79 of 1998 filed in the court of Subordinate Judge-II, Palamau at Daltonganj seeking preliminary decree for partition of the plaintiff's claimed 1/3rd share and final decree of partition.¶42
Prior proceeding
Trial court concluded that unity of title and possession over the 9.68 ¾ acres was not claimed, so that area was not to be partitioned; plaintiff, defendant no.1 and defendant nos.2 to 9 were held to have a 1/3rd share each over the remaining 3.17 ¼ acres and a preliminary decree was passed accordingly.¶71
Prior proceeding
Trial court held that the challenge to the sale deed executed by Sardar Singh in favour of Bipti Cherain was barred by limitation and the scope for challenging it was over.¶71
Prior proceeding
Trial court found the plaintiff ought to have impleaded his brother Arjun Singh, making the suit bad for non-joinder of necessary party.¶71
Prior proceeding
Plaintiff filed Partition Appeal No.25 of 2008 in the court of Principal District Judge, Palamau at Daltonganj against the trial court's judgment and decree.¶72
Prior proceeding
Earlier Partition Suit No. 87 of 1990 in the court of Munsif, Palamau was withdrawn by the plaintiff with permission to file fresh suit.¶50
Prior proceeding
Mutation Case No. 126 of 1960-61: objection of Mallu Singh and Khelwan Singh to Bipti Cherain's mutation petition was rejected by the Circle Officer and mutation was allowed vide order dated 03.06.1961.¶56
Prior proceeding
Mutation Appeal No. XV/22 of 1961-62 filed by Mallu Singh and Khelawan Singh before the Additional S.D.O., Daltonganj was dismissed vide order dated 24.03.1962.¶56

Lileshwar Singh v. Tulsi Singh And Ors.

Case brief

What is this about?

What did the court decide?

Lileshwar Singh v. Tulsi Singh And Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

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Procedural history

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