Most Jirwa Devi Vs Koyali Dusadh

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.98 of 2023

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Most Jirwa Devi, aged about 62 years, W/o late Basudev Dusadh,

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Suresh Paswan, aged about 46 years, S/o late Basudev Dusadh

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Prakash Paswan, aged about 39 years, S/o late Basudev Dusadh

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Baijnath Paswan, aged about 37 years, S/o late Basudev Dusadh Sl. No. 1 -4 all R/o village –Shila, P.O. –Shila, P.S. –Shila, District -Chatra

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Shakuntala @ Shakunwa Devi, aged about 43 years, W/o Anil Paswan, D/o late Basudev Dusadh, R/o village –Khapriyawan, P.O. –Banha, P.S. –Katkamdag, District –Hazaribagh

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Sita Devi, aged about 41 years, W/o Karu Paswan, D/o late Basudev Dusadh, R/o village –Argarha (Masjid Mohalla), P.O. – Argarha, P.S./District –Ramgarh

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Budhani Devi, Aged about 65 years, D/o Bishun Dushadh, W/o Kauleshwar Dusadh, R/o village/P.O. –Amrit Nagar, P.S. – Muffassil, District –Hazaribagh

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Most. Puspa @ Sanrupa, aged about 60 years, W/o late Laldeo Dusadh,

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Thupan @ Naresh Paswan @ Naresh Dusadh, aged about 50 years, S/o Tanu Dusadh @ Deo Nath Dusadh,

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Pakoiya @ Deoki Dusadh @ Deoki Paswan, aged about 55 years, S/o Late Tanu Dusadh @ Deo Nath Dusadh, Sl. No. 8 -10 all R/o village –Shila, P.O. –Shila, P.S. –Simariya, District –Chatra

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Jagdish Dusadh, S/o late Pun @ Guman Dusadh, aged about 75 years, R/o village/PO –Dadi, P.S. –Simariya, District -Chatra .... .... …. Appellants

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Versus

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Koyali Dusadh, S/o late Dhundha Dusadh,

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Rohan Dusadh, S/o late Dhundha Dusadh, both R/o village –Sila, P.S. –Simariya, Dist –Chatra

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Kadwa Massomat, W/o late Chauky Paswan, D/o late Dhundha Dusadh, R/o –Village/P.S. –Simariya, P.O. –Simariya, District - Chatra

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Chutari Massomat, W/o late Beni Paswan, D/o late Dhundha Dusadh, R/o village –Damol, P.O. –Ichak, P.S. –Simariya, District – Chatra

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Sandeep Kumar, S/o late Ramdeo Dusadh, R/o village –Dhangartoli, PO/PS –Chatra, Dist –Chatra

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Malwa Devi, W/o Baleshwar Dusadh, R/o village –Mahaudi, P.O. – Brindawan, P.S. –Chauparan, District –Hazaribagh

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Krishna Paswan, S/o Damodar Paswan

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Sabo Massomat, W/o Sudama Dusadh

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Raj Paswan, S/o Sudama Paswan Sl. No. 7-9 all R/o village –Teli Mohalla, godokhar, P.S. –Pelawal, P.O. and District -Hazaribagh

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Second Appeal No. 98 of 2023

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Sumitra Devi, W/o Raju Paswan, R/o village –Pichari, P.S. – Katkamsandi, P.O. –Daud, District –Hazaribagh

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Sita Devi, W/o Mukesh Paswan, R/o village –Dhangartoli, P.O./P.S. –Chatra, District –Chatra

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Babita Devi, W/o Rahul Paswan, R/o village Tajpur (Masjid Gully), P.O./P.S. –Chauparan, District –Hazaribagh,

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Sobran Gope, S/o late Tukan Gope,

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Munsi Gope, S/o Tukan Gope Sl. No. 13 and 14 both R/o village Shila, P.O. –Shila, P.S. –Simariya, District –Chatra

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Mahabir Rana, S/o late Rajo Rana,

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Raghubir Rana, S/o late Rajo Rana, both R/o village –Shila, P.O. – Shila, P.S. –Simariya, District –Chatra

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Manoj Singh, S/o late Kama Singh,

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Pankaj Singh, S/o late Kama Singh, both R/o village –Rajput Tola, Ichak, P.O. –Shila, P.S. –Simariya, District –Chatra

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Pawan Singh, S/o late Kama Singh, R/o village –Dusadh Tola, P.O. – Shila, P.S. –Simariya, District –Chatra

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Sunita Devi, W/o Sanjay Singh, R/o village –Near Kali Mandir, Awal Mohalla, P.O./P.S. –Chatra, District –Chatra

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Anita Devi, W/o Pramod Singh, R/o village –Harhad Salkhuwa, P.O. –Jogiyara, P.S. –Pratappur, District –Chatra

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Guna Manto, S/o Sri Sita Mahato,

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Nemliya Devi, W/o Jamun Yadav,

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Jagdish Dusadh, S/o late Mali Dusadh,

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Rameshwar Dusadh, S/o late Ramu Dusadh

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Sl. No. 22-25, R/o village –Shila, P.O. –Shila, P.S. –Simariya, District - Chatra

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Smt. Tita Devi, W/o Vimal Singh, R/o vill –Ichak, P.O. and P.S. – Simariya, District -Chatra

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... .... …. Respondents

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------ For the Appellants : Mr. Manjul Prasad, Sr. Advocate : Mr. Arbind Kr. Sinha, Advocate : Mr. Baban Prasad, Advocate : Mr. Raj Kumar Prasad, Advocate : Mr. Aniket Rohan, 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 parties.

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2 This second appeal has been preferred under Section 100 of

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Code of Civil Procedure against the judgment and decree of concurrence dated 14.03.2023 passed by the learned District Judge-III,

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Second Appeal No. 98 of 2023

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Chatra in Civil Appeal No. 12 of 2016 by which the learned first appellate court dismissed the civil appeal.

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3 The brief fact of the case is that the plaintiff-respondents filed Partition Suit No. 04 of 2009 in the court of learned Civil Judge (Senior Division)-I, Chatra with a prayer for partition of the suit property and for a preliminary decree of half share of the suit property being 12.20 acres of land under Khata No. 87, pertaining to altogether 49 plots having total area of 24.40 acres in Village –Shila, P.S. –Simariya, District –Chatra.

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4 The case of the plaintiffs in brief is that the parties to the suit are governed by Mitakshara School of Hindu Law. The parties to the suit are descendants of the common ancestor Puran Dusadh and Karu Dusadh, who are the own brothers. The plaintiffs are the descendants of Karu Dusadh whereas the defendants are the descendants of Puran Dusadh. The suit land in the Cadestral Survey Khatiyan- which has been marked Ext.3, stood jointly recorded in the name of Jitan and Lalwa together half share and Most. Muliya, the remaining half share. Muliya is the daughter-in-law of Karu Dusadh; whereas Jitan and Lalwa are the sons of Puran Dusadh. Muliya died leaving behind her daughter Masomat Jaswa. Masomat Jaswa died leaving behind his son Dhunda Dusadh and daughter Soniya. Soniya died issueless, soon after her mother Jaswa. The plaintiffs, Koylai Dusadh and Rohan Dusadh are the sons of Dhundha Dusadh whereas the plaintiff nos. 3 to 5 are the daughters of Dhundha Dusadh. Lalwa died issueless. The son of Jitan Dusadh was Rewa Dusadh; whereas Rijhni is the wife of Rewa Dusadh. After the death of Rewa Dusadh, Rijhni took

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advantage of the minority of the plaintiffs and executed a sale deed in favour of her grandson and granddaughter in the year 1960 debarring the rights of the descendants of Masomat Muliya. Masomat Rijhni has only right, title and interest to the extent of half share of Khata No. 87. The suit property was joint in the year 1960, when the said sale deed was executed by Rijhni. When the plaintiffs became major in the year 1973, Rijhni also executed a sale deed again of her share in favour of the plaintiffs. The plaintiffs pleaded that the suit land is still joint and the sale deed executed by Rijhni in favour of her nati and natni (grandson and granddaughter respectively) has not been acted upon as the sale deed is void ab initio in the eye of law. There is no permission from the Deputy Commissioner having been taken; as required under Section 46 of the Chota Nagpur Tenancy Act, the said sale deed is void. Hence, the plaintiffs filed the suit for partition as already indicated above.

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5 The defendant nos. 1 to 6 in their joint written statement, challenged the maintainability of the suit on various technical grounds. The defendants admitted that Puran Dusadh and Karu Dusadh were brothers. Rijhni kept her daughter Nemiya and her husband Bishun Dushadh as Ghar Jamai. The defendants admitted that Jhari Dusadh is the son of Karu Dusadh and Muliya is the wife of Jhari Dusadh. They also admitted that Jaswa Dusadhin was the daughter of Muliya Dusadhin. The purchasers of Rijhni have perfected their title over the suit land by remaining adversely within the knowledge of the plaintiffs. The plaintiffs have no right, title, interest or possession over the suit land in capacity of coparceners of

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the defendant nos. 1 to 5. The plaintiffs being minor in the year 1960, after attaining majority, they ought to have sought appropriate relief by filing suit in the court but having not done so, the present suit is not maintainable being barred by limitation. They pleaded that the sale deed executed by Masomat Rijhni is legal and valid and has been executed after obtaining permission of the Deputy Collector. The defendant no.15 in his written statement also challenged the maintainability of the suit on various technical grounds.

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6 On the basis of the rival pleading of the parties, the learned

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trial court settled the following six issues:-

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(1) Whether the suit is maintainable in its present form?

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(2) Whether the plaintiffs have valid right, title and interest in the suit land to the extent of 12.20 acres land?

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(3) Whether there is any unity of title and community of possession between the parties with respect to the land in suit?

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(4) Whether the suit is barred by law of limitation, adverse possession, estoppel and also under provisions of Specific Relief Act?

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(5) Whether plaintiffs have filed title suit in the grab of partition suit with the view to save their skin from payment of Advalorem court fee?

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(6) Whether the plaintiffs are entitled to get the relief or reliefs as claimed? (7) Whether the sale deed executed by Most. Rijhni in the year 1960 was void-ab-initio?

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7 In support of their case, the plaintiffs examined altogether six witnesses and proved the documents which have been marked Ext. 1 to Ext.3. On the other hand from the side of the defendants also six witnesses were examined and the defendants also proved the documents which have been marked Ext. A to F/1.

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8 The learned trial court first took up issue no. 4 and considered that it is the admitted case of both the parties that Muliya and Jitan Dushadh were the recorded tenants in the Khatiyan and Most. Muliya was having half share. It is not the case of the defendants that after preparation of Khatiyan, there has been any

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partition between the parties by metes and bounds. Both the parties are Hindu; amongst whom there is presumption of jointness until contrary is proved and every coparcener is presumed to be in possession, even if one co-sharer is found to be in actual possession. Therefore, the trial court concluded that, the suit cannot be held to be barred by adverse possession. It was then considered that since the plaintiffs have made the prayer for partition of half share, the suit is not barred by Section 34 of the Specific Relief Act. The learned trial court then took up issue no.1 and considering the materials in the record, held that the suit is maintainable in its present form. The learned trial court next took up issue nos. 2, 3 & 5 together and after considering the materials in the record came to the conclusion that there is unity of title and possession between the plaintiffs and the defendants for the suit land and there is no partition by metes and bounds them, though the plaintiff has valid right, title and interest in the suit land to the extent of half share equal to 12.20 acres of land and decided the issue nos. 2, 3 & 5 in favour of the plaintiffs. The learned trial court next took up issue no.6 and held that the plaintiffs are entitled to the reliefs prayed for. Lastly, the learned trial court took up issue no.7 and held that the sale deed executed by Rijhni is limited to the extent of her share over the suit land and subject to the adjustment and separate allotment of share in the final decree proceeding and went on to hold that the plaintiffs are entitled to get half share in the suit land and they are entitled to a preliminary decree and passed the preliminary decree accordingly.

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9 Being aggrieved by the judgment and decree passed by the

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learned trial court, being the Civil Judge (Senior Division)-I, Chatra in Partition Suit No. 04 of 2009 dated12.02.2016, the defendantsappellants filed Civil Appeal No. 12 of 2016 in the court of Principal District Judge, Chatra which was ultimately heard and disposed of by the learned District Judge-III, Chatra by the impugned judgment.

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10 The learned first appellate court after considering the materials in the record and the submissions made before it, formulated the following three points for determination: -

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“I. Whether the sale deed No. 1280 dated 16.12.1960 executed by Most. Rijhni in favour of defendant no.1 and Godwa Dusadhin is illegal, null & void ab-initio, collusive, showy and without consideration? II. Is the suit barred by law of limitation, estoppel and waiver? III. Whether there is unity of possession and jointness in between plaintiffs and defendants and the plaintiffs are entitled for the decree of partition for half share of the suit land?”

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11 The learned first appellate court first took up point for determination no. I and made independent appreciation of the evidence in the record and considering the materials in the record to the effect that in the Cadastral Survey Record of Right, it is apparent that the branch of Jitan was only entitled to 12.20 acres of land but Rijhni executed sale deed for an area of 19.69 acres, which is in excess to her share. The finding of the learned trial court that the sale deed is valid with respect to 12.20 acres of land to which Rijhni was entitled is correct and affirmed the finding of the learned trial court. The learned first appellate court next took up the point for determination no. II and after considering the materials in the record and the settled principle of law that there is presumption of jointness of property of Hindu Family unless contrary is proved and as the defendants

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admitted the genealogy pleaded by the plaintiffs and the defendants

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never pleaded partition by metes and bounds in the family, the learned first appellate court came to the conclusion that the claim of partition is not barred by limitation as there is no time limit prescribed for seeking partition. Lastly, the learned first appellate court took up the point for determination no. III and considering the fact that there is neither any pleading of the defendants with respect to separate cultivation, residence, mess and business and its earlier finding that there is no partition between the plaintiffs and the defendants and that the plaintiffs have succeeded in establishing that the property is joint and no partition by metes and bounds has taken place, came to the conclusion that there is unity of title and possession between the parties and the learned trial court has rightly came to such a finding and affirmed the judgment and decree passed by the learned trial court and dismissed the appeal.

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12 It is submitted by the learned senior counsel for the appellants that both the courts below have seriously erred in considering the respective cases of the parties and that the reliefs sought for by the plaintiffs for setting aside the sale deed no. 1280 of 1960 executed by Rijhni in favour of the defendant no.1 and Late Kadwa Dusadhin; was apparently barred by the law of limitation. The learned senior counsel for the appellants drawing attention of this Court to Article 110 of Schedule of the Limitation Act, submits that since the plaintiffs have been excluded from joint family property, so the prayer for partition is barred by limitation in view of Article 110 of Schedule of the Limitation Act. It is next submitted that in view of the overwhelming evidence regarding transaction between

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the plaintiffs and the defendants with regard to the suit land, a strong presumption of partition between them arises; which was ignored by both the courts below. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be dismissed after formulating appropriate substantial question of law.

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13 Having hard the submissions made the bar and after going through the materials available in the record, so far as the contention of the learned senior counsel for the appellants that the plaintiffs have been excluded from the joint family property for the purpose of invoking Article 110 of the Limitation Act is concerned, it is pertinent to mention here that to attract Article 110 of the Limitation Act, the

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defendants in this case ought to have specifically pleaded that the plaintiffs have been excluded from the joint family property and proved the same also.

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14 Now coming to the facts of the case, there is absolutely no pleading of the defendants that the plaintiffs have been excluded from the joint family property. The genealogy of the plaintiffs is admitted by the defendants which goes to show that the plaintiffs and the defendants are the coparceners of the jointly family property. It is needless to mention that the exclusion as envisaged under Article 110 of the Limitation Act, 1963 must be a conscious and deliberate act amounting to denial of the right of the particular member and that member must have notice of such exclusion but in this case, as already indicated above, let alone any proof, there is not even pleading of exclusion of the plaintiffs from the joint family property.

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Under such circumstances, this court is of the considered view that in the facts of the case, the limitation of twelve years as envisaged in Article 110 of the Schedule of the Limitation Act, 1963 is not attracted. Hence, the suit is not barred by limitation.

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15 So far as the contention of the learned senior counsel for the appellants regarding appreciation of the evidence in the record is concerned, it is needless to mention that Ext.3, the Cadastral Survey Khatiyan shows that Jitan and Lalwa together were having half share and Muliya was having half share of the suit property that is 12.20 acres each. It is needless to mention that the plaintiffs are the descendants of Muliya and the defendant nos. 1 to 6 are the descendants of Jitan as Lalwa died issueless.

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16 Under such circumstances, this Court do not find any illegality in arriving at the finding of fact by both the courts below that there is unity of title and possession between the parties and that the plaintiffs are entitled to half share of the suit land and passing a preliminary decree accordingly, more so when; as already indicated above there is no specific pleading of the defendants that there has been any partition by metes and bounds between the parties. Therefore, this Court is of the considered view that there is absolutely no substantial question of law involved in this appeal.

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17 Accordingly, this appeal being without any merit is dismissed.

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18 In view of disposal of this second appeal, interlocutory application no. 8989 of 2023 is disposed of being infructuous.

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