Safique Mirdaha And Ors. Vs Nayeem Mirdaha And Ors.

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2025:JHHC:26890

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 16 of 2017

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Safique Mirdaha

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Keyamul Mirdaha

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Muzafar Mirdaha

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Nos.1 to 3 sons of late Doman Mirdaha, residents of village Banda, P.O. – Bhandra, P.S. – Bhandra, District Lohardaga

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… … Plaintiffs/Respondents/Appellants

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Versus

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Nayeem Mirdaha, son of late Mansoor Mirdaha

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Chhedu Mirdaha, son of late Maru Mirdaha, both residents of village Banda, P.O. – Bhandra, P.S. – Bhandra, District Lohardaga

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… … Defendants/Appellants/Respondents

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1. Jubeda Khatoon wife of late Doman Mirdaha, resident of village Banda, P.O. – Bhandra, P.S. Bhandra, District Lohardaga

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Jilsu Khatoon wife of Muslim Khan and daughter of Maru Mirdaha, resident of village Choreya, P.O. Choreya, P.S. Mandar, District Ranchi

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Murtu Khatoon wife of Jalil Khan and daughter of Maru Mirdaha, resident of village Banda, P.O. – Bhandra, P.S. Bhandra, District Lohardaga

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Sanicharwa Kotwar son of late Haneef Kotwar

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Sadakat Kotwar

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Saiful Kotwar

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Rayuf Kotwar

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10.Khalid Kotwar, all sons of Sanichara Kotwar, residents of village Malgo, P.O. – Bhandra, P.S. Bharno, District Gumla

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11.Anwari Khatoon, wife of Moiz Mirdaha, resident of village Banda, P.O. – Bhandra, P.S. Bhandra, District Lohardaga

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12.Ruhana Khatoon daughter of Sanicharwa Kotwar R/o village Malgo, P.O. & P.S. – Bharno, District Gumla

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… … Plaintiffs/Respondents/Proforma Respondents ---

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Mr. K.K. Ambastha, Advocate : Mr. Abdul Wahab, Advocate : Mr. Anurag Chandra, Advocate ---

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12 /02.09.2025 Heard the learned counsel appearing on behalf of the appellants.

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2. This appeal has been filed against the judgement 29.09.2016 (decree signed on 05.10.2016) passed by learned Principal District Judge, Lohardaga whereby Civil Appeal No.25 of 2012 has been allowed. The judgement of the trial court is dated 19.06.2012 (decree

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singed on 29.06.2012) passed by learned Civil Judge (Junior Division) No.IV Civil Court, Lohardaga in Title Suit No.6 of 2003.

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3. The suit was decreed and the learned 1^st appellate court has reversed the judgement and decree of the trial court. Consequently, the plaintiffs are the appellants before this Court.

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4. The suit was filed seeking a declaration of right, title, interest and confirmation of the possession of the plaintiffs along with defendant nos.2 to 5 with respect to the suit land of village Banda P.S. Bhandra, P.S. No.230, District Lohdardaga bearing:-

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a. R.S. Khata No.249, Plot No.521 area 1 acre corresponding to new survey khata No.120, new survey plot no.532;

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b. RS Khata No.28, plot no.1104 area 0.06 acre corresponding to new survey khata no.119, new plot no.1176 and

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c. RS Khata No.28 plot no.1101 area 2 ½ decimals corresponding to new khata no.150, new plot no.1173.

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Alternative relief was also prayed that if the plaintiffs are not found in possession of the suit land, delivery of possession may be given to the plaintiffs after ejecting the defendant no.1 from the suit land. A prayer was also made seeking a declaration that the registered deed of Gift No.245/2003 dated 04.02.2003 executed by Chhedna Mirdaha (defendant no.2) in favour of Nayeem Mirdaha (defendant no.1) be declared illegal, null and void and not operative and not binding upon the plaintiffs and be cancelled.

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5. The specific case of the plaintiffs was that the suit property was a joint family property and under such circumstances, defendant no.2 was not a competent person to execute the deed of gift in favour of defendant no.1 without the consent of all the co-owners.

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6. It was also the case of the plaintiffs that the defendant no.2, being a deaf and dumb person, was misled by defendant no.1 through fraud and misrepresentation to execute the sale deed. The plaintiffs further claimed that defendant no.2 was not competent to execute the

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deed of gift of the joint family property and there is no delivery of possession. It was further case that defendant no.2 was a person of weak mind and deaf and dumb person incapable of understanding anything well and was unaware of the fact the he was executing a gift deed in favour of defendant no.1. It was also the case of the plaintiffs that the contents of the gift deed were not explained to the defendant no.2 since defendant no.2 was illiterate, deaf and dumb person and is a person of weak mind incapable of understanding a thing. It was further case of the plaintiffs that the execution of the aforesaid gift deed was never admitted by defendant no.2 in the presence of the Registrar and that in what manner the content of the alleged deed of gift has been admitted and how he identified the khata, plot area boundary etc., has not been explained by the Registrar or the deed writer. It was also the case of the plaintiffs that defendant no.2 is an illiterate, deaf and dumb person incapable to understand the thing well and is a man of unsound mind and hence was not the competent person to execute the deed of transfer.

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7. Upon summons, a joint written statement was filed on behalf of defendant nos.1 and 2 and another joint written statement was filed on behalf of defendant nos.3 to 5.

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8. The suit was opposed by defendants nos.1 and 2. It was asserted that though the defendant no.2 was deaf and dumb, but he had full capacity to understand matters by indication and signs, and thus he was fully capable to choose and select right and wrong about himself and his property. It was also asserted that defendant no.2 was the only son of Maru Miradaha and while he was infant, Maru Miradha died leaving behind his widow Most. Niyazan and a son Chhedna Mirdaha. The mother of defendant no.2 took a raiyati settlement on 16.12.1948 from the ex-landlord on payment of salami , and the ex-landlord also issued rent receipts. Consequently, defendant no.2 acquired the valid right, title and interest over the suit property and enjoyed the same as the sole and exclusive owner of the property. It was their further case that after vesting, his mother was found in possession and the State of

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Bihar recognized defendant no.2 as raiyat and defendant no.2 paid rent to the State.

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9. The learned trial court framed the following issues for consideration:

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1. Whether the suit is maintainable in its present form?

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2. Whether the suit is barred by limitation and adverse possession?

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3. Whether the plaintiff has valid cause of action for the present suit?

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4. Whether the plaintiff has right, title and interest and possession over the suit land described in Schedule “A” of the plaint?

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5. Whether the deed of gift bearing number 245/03 dated 4.2.2003 with respect to the suit land is illegal, null and void and not operative upon the plaintiff?

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6. Whether plaintiff is entitled to any relief and if yes to what extent?

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10. On behalf of the parties, both documentary and oral evidences were adduced.

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11. The learned counsel for the appellants has submitted that issues no.4 and 5 are relevant for the purposes of the case. The issues no.4 and 5 have been decided by the learned trial court vide paragraph 16 onwards.

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12. The learned trial court ultimately held that Chhedu Mirdaha had not acquired exclusive right and title over the suit property and further held that the hukumnama was not a valid document. The court also observed that, according to the defendants, a partition had taken place in respect of RS Khata No.28 between Maru Mirdaha and Doman Mirdaha, and that Doman Mirdaha had sold the land of RS Khata No.28 through different registered sale deeds, which were marked as Exhibits B to B/3. However, the court observed that no evidence was brought on record to show that the four sisters had also sold any share of the land in RS khata no.28 which could indicate that they had accepted the partition between Maru Mirdha and Doman Mirdha. The learned trial court ultimately held that defendant no.1 never came in exclusive possession of the suit land after execution of the gift deed.

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Meaning thereby, the gift deed was not acted upon and the property of Khata no.28 remained joint. The learned trial court further held that it was proved by evidence that Chhedu Mirdaha, was not capable of telling the plot number and khata number of any land and also the content of the deed. So in this way, deed of gift bearing no.245/2003 dated 04.02.2003 with respect to the suit land was not a valid document and it could not be said that Chhedu Mirdaha transferred the suit land to Nayeem Mirdaha. Issue nos.4 and 5 were decided in favour of the plaintiffs and ultimately the suit was decreed.

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13. Before the learned 1^st appellate court, the point for determination as framed was as follows:

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“The main question to be decided in this civil appeal being whether the right, title and interest of the plaintiff is to be declared over the suit land by cancellation of the gift deed?”

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14. The learned 1^st appellate court scrutinized the materials on record and discussions of the oral evidence has been recorded in paragraph 11.

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15. The learned 1^st appellate court specifically highlighted the cross-examination of P.W. 3 wherein he stated that defendant no.2 performed his routine work and was engaged in agriculture also with the help of others. He used to visit nearby village market to purchase article as per his requirement, used to visit barber shop and he identified his land and house. This witness has also stated that defendant no.2 had married 2^nd wife namely Sakila Khatoon only two months ago and, in the marriage, Nikahnama was recited by him in presence of witnesses and secretary etc. He also stated that defendant no.2 used to look after his own land and for last 20 years defendant no.1 had been residing with defendant no.2. In the cross-examination of P.W. 3, he stated that defendant no.2 is a deaf and dumb person but he has got the capacity to understand and he looks after his landed property at his own.

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16. The learned court thereafter referred to the capacity to execute gift vide paragraph 15 and held that the court has considered the

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question whether the defendant no.2 was a competent person to execute a gift deed being a deaf and dumb person and noted that the defendant no.2 was produced in the court and he has intelligently stated before the court regarding execution of the deed. The court further found that the evidence brought on behalf of the plaintiffs admitted that defendant no.2, though being deaf and dumb person, is capable of understanding and capable of forming a rational judgement as to the effect of gift upon his interest.

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17. The learned court further observed that the initial onus of proving unsoundness of mind is on the person who alleges it for the normal, presumption is that the person is of sound mind. The learned court rejected each and every objection with regard to the validity of the gift by referring to the materials on record and summarized the findings in paragraph 13 of the judgement. The learned court thereafter highlighted the shortcoming of the judgement passed by the learned trial court and ultimately the appeal was allowed and the judgement of the trial court was set aside.

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18. The learned counsel for the appellants while assailing the judgment of the learned 1^st appellate court has submitted that the defendant no.2 was incapable of understanding the import of the gift deed inasmuch as he was not able to give the plot number, khata number of the property. He submits that this aspect of the matter has been considered by the learned trial court but the appellate court has committed perversity while reversing the judgement of the learned trial court. He has also submitted that the property was a joint family property, and therefore, portion of it could not be gifted away and on this account also, the gift was not valid.

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19. The learned counsel has also submitted that the possession of the gifted property was still not found with defendant no.1 to whom defendant no.2 had gifted, and therefore, the gift was illegal and void and the suit was rightly decreed by the learned trial court, but the learned appellate court has not considered these aspects of the matter.

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20. After hearing the learned counsel for the appellants, this Court finds that the learned 1^st appellate court has meticulously scrutinized

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the materials on record to come to a finding that defendant no.2, though was a deaf and dumb person, but had come to a definite finding by referring to the evidence placed on record and by highlighting the evidence of P.W. 3, who had himself clearly stated that defendant no.2, though deaf and dumb person, had the capacity to understand and he looked after the landed property also. Other instances of his understanding have also been highlighted in the evidence of P.W. 3.

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21. This Court also finds that the learned court has rightly held in paragraph 15 that defendant no.2 was capable of understanding and the plaintiffs who asserted that defendant no.2 was of unsound mind has failed to prove the same. The learned 1^st appellate court has also considered the validity of the gift deed and come to the following findings in paragraph 13 and rejected each of the objection with regards to the registered deed of gift which is quoted as under: -

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“13.Let me say plaintiff stands on its own legs for proving its case. The plaintiff has sought a decree of declaration of his right, title and interest over the suit land by setting aside the gift deed mainly on three counts:-

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(a) That defendant no. 2 being a deaf and dumb person was incapable to understand the things, it stands negated and demolished by the evidence of the plaintiff. The examination of the defendant no 2 in the court further fortified the assertion of the contesting defendant that he was a competent person to execute the gift-deed.

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(b) Secondly the family property is a joint family property and defendant no. 2 was not competent person to execute deed of gift for a joint family property. It is evident from Ext B series that the plaintiff and their ancestors have admittedly executed several sale-deeds with regard to such land claiming it to be partitioned. It is admitted in oral evidence as well.

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(c) Thirdly the defendant no. 2 has executed deed in excess of his share. All the witnesses of the plaintiffs have admitted that the defendant no2 has not transferred any piece of land except the gift-deed, while the plaintiffs have executed deeds for their share of land.

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I have further examined the other legal aspects of the case for better appreciation of the facts and circumstances of the case.”

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22. This Court finds that the learned 1^st appellate court has meticulously examined all the aspects of the matter with regard to the capacity of defendant no.2 to gift his property though he was deaf and dumb and also regarding the validity of the gift rejecting each objection of the plaintiffs.

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23. This Court is of the considered view that the judgement passed by the learned 1^st appellate court is a well-reasoned judgement and has been passed after taking into consideration all the material evidences placed on record. No perversity as such could be pointed out in the matter of appreciation of the materials on record. This Court is of the considered view that, no question of law, much less, any substantial question of law is involved in this case. Accordingly, this Second appeal is hereby dismissed.

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24. Pending interlocutory application, if any, is dismissed as not pressed.

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25. Let a soft copy of this order be communicated to the court concerned through FAX/email.

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(Anubha Rawat Choudhary, J.)

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02.09.2025 Saurav/

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Uploaded on 15.10.2025

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