Dismissed¶30

Shyamal Kishore Roy v. Dewakar Pd Singh

Second Appeal – Partition Suit – Concurrent Findings

Jharkhand HC15 Dec 2025SA/202/2023

Download

Case brief

AI extract

What is this about?

Jharkhand High Court (Ranchi), S.A. No. 202 of 2023, decided 15.12.2025 by Anubha Rawat Choudhary, J. Second appeal from concurrent dismissal of Title (Partition) Suit No. 70 of 2005 (Civil Judge, Deoghar) and Civil Appeal No. 38 of 2019 (District Judge-1, Madhupur). Keywords: partition, genealogy (Lakshman Rai / Gouri Rai / Uma Rai / Hari Rai / Dwari Rai branches), previous partition decree of 1964, fraud plea under Order 6 Rule 4 CPC, constructive res judicata, Exhibit-1 / Exhibit-2, no substantial question of law, appeal dismissed.

What did the court decide?

The appellant's counsel harped upon Exhibit-1 but could not point out any perversity in the matter of appreciation of materials on record, including the appreciation of Exhibit-1, by the courts below. ¶28

Shyamal Kishore Roy Vs Dewakar Pd Singh — Jharkhand HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶30

Issue for consideration

Whether the learned courts below wrongly interpreted Exhibit-1 and their concurrent findings (that Gouri Rai and Uma Rai were father and son, not brothers) are perverse, warranting interference in this second appeal. +2 more

¶5

Court's answer

¶28

Ratio / Principle

Exhibit-1 does not record the fathers' names of the children of Uma Rai and Gauri Rai, an omission conceded by the appellant's counsel during argument; consequently Exhibit-1 cannot establish that Uma Rai and Gouri Rai were brothers.

¶27

Key takeaways

There are concurrent findings recorded by both courts with respect to the previous partition in Title (P) Suit No. 04 of 1964, and both parties were in possession of their respective shares arising out of that partition suit.ratio¶26
The plaintiff failed to bring any cogent evidence from which it can be inferred that Uma Rai was brother of Gouri Rai, and also failed to prove that the judgment and decree in Title (P) Suit No. 04 of 1964 was obtained by suppressing material facts.ratio¶26

Detailed headnote1 paragraphs

Second Appeal – Partition Suit – Concurrent Findings – Previous Partition (Title (P) Suit No. 04 of 1964) – Genealogy – Constructive Res Judicata – No Substantial Question of Law. The appellant/plaintiff, claiming descent from recorded tenant Dwari Rai, sought a preliminary decree of partition asserting a common ancestor Lakshman Rai whose two sons Gouri Rai and Uma Rai jointly inherited the suit properties, and alleging that the decree in Title (P) Suit No. 04 of 1964 (brought by Rukmini Devi, daughter of Hari Rai, who died 13.04.1957) was collusively obtained on a false genealogy showing Uma Rai as son, not brother, of Gouri Rai. Courts below concurrently found a previous partition under the 1964 suit with parties in possession per allotted shares, found the genealogy therein uncontroverted (fraud plea failing for want of particulars/evidence), and held the present suit barred by constructive res judicata (Title Suit No. 15 of 1987 having also been dismissed on res judicata). Before this Court the appellant relied on Exhibit-1, but the fathers' names of the children of Uma Rai and Gauri Rai were admittedly absent from it, and no perversity in appreciation of materials could be shown; Exhibit-2 was disregarded as prepared during the suit's pendency. Finding no question of law, much less a substantial question of law, the High Court dismissed the second appeal; pending interlocutory applications were dismissed as not pressed. (Anubha Rawat Choudhary, J.)

¶1

2025:JHHC:37814

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶3

S. A. No. 202 of 2023

¶4

Shyamal Kishore Roy, aged about 45 years, S/o Late Tirath Nath Roy, R/o: Village-Pansari, P.O.- Babhangama, P.S. Madhupur, District-Deoghar.

¶5

… … Plaintiff/Appellant/Appellant

¶6

Versus

¶7

Dewakar Pd. Singh, S/o: Late Ganesh Singh, R/o: Village- Girsoli, P.O.- Babhangama, P.S.- Sarath, District-Deoghar.

¶8

Sakuntala Devi, W/o Chandrashekhar Rai, D/o Late Ganesh Singh, R/o: Village- Gajiadih, P.O.- Sarath, P.S. Sarath, DistrictDeoghar.

¶9

Neelam Devi, W/o: Gopal Pd. Singh, D/o: Late Ganesh Singh, R/o: Village & P.O.Telghi, P.S.Navgachhia, DistrictBhagalpur(Bihar).

¶10

Sima Devi, W/o Shailendra Pd. Choudhary, D/o: Late Ganesh Singh, R/o: Village & P.O.- Babhangawan, P.S. Bihpur, DistrictBhagalpur (Bihar)

¶11

Karuna Singh S/o late Dhajadhari Singh.

¶12

Ras Bihari Rai S/o Sudama Rai.

¶13

Sajjan Rai S/o Sudama Rai Both 6 & 7 R/o: Village: Singhjori, P.O. & P.S.- Jasidih, DistrictDeoghar.

¶14

Angad Singh S/o late Awadh Bihari Singh.

¶15

Sudhir Singh S/o late Awadh Bihari Singh.

¶16

Rohit Singh S/o late Awadh Bihari Singh.

¶17

Chandra Mouleshwar Singh S/o late Banke Bihari Singh.

¶18

Singheshwar Singh S/o late Banke Bihari Singh.

¶19

Ranjeet Singh S/o late Banke Bihari Singh.

¶20

Niwaran Singh S/o late Banke Bihari Singh, all 5 to 14 R/o village & P.O.-Babhangama, P.S.-Sarath, Dist.-Deoghar.

¶21

Mano Devi D/o late Awadh Bihari Singh.

¶22

Malti Devi D/o late Awadh Bihari Singh, both 15 & 16 R/o village & P.O.-Telghi, P.S.-Navgachhia, Dist.-Bhagalpur(Bihar).

¶23

... ... Defendants 1^st Party/Respondents 1^st party/Respondents.

¶24

Shiv Shankar Rai S/o late Jogendra Rai.

¶25

Usha Devi D/o late Bhola Rai.

¶26

Digamber Rai S/o late Jogendra Rai.

¶27

Sagar Rai S/o late Banshi Rai.

¶28

Ganesh Rai S/o late Banshi Rai.

¶29

Malti Devi W/o late Banshi Rai, 17 to 22 R/o village-Dundwadih, P.O Babhangama, P.S.-Sarath, Dist.-Deoghar.

¶30

Manorama Devi, D/o late Jogendra Rai, R/o village Purna Nagar, P.O. Kubri, P.S.- Rajdhanwar, Dist.-Giridih.

¶31

24.Bachhu Rai S/o late Subhankari Devi.

¶32

25.Pappi Rai S/o late Subhankari Devi.

¶33

Subash Rai S/o late Subhankari Devi.

¶34

¶35

2025:JHHC:37814

¶36

Binod Rai, 24 to 27 R/o village-Dhurgargi, P.O.- Dhurgargi, P.S.& Dist. Giridih.

¶37

Brahma Rai, H/o Late Annapuma Devi.

¶38

Dhananjay Rai S/o late Annapurna Devi.

¶39

Suman Rai S/o late Annapurna Devi.

¶40

Sunil Rai S/o late Annapuma Devi, 28 to 31 R/o villageKhandhara, P.O.-Tabhaghat, P.S.-Jasidih, Dist.-Deoghar.

¶41

32.Chameli Devi D/o late Annapurna Devi, R/o village –Khandhara, P.O-Tabhaghat P.S.- Jasidih, Dist. Deoghar.

¶42

33.Mundrika Devi W/o late Parmeshwar Rai, R/o village-Dundwadih, P.O Bamangama, P.S.-Sarath, Dist.-Deoghar.

¶43

34.Renu Devi D/o late Parmeshwar Rai, R/o village-Khairidih, P.O.Khairidih, P.S.-Birni, Dist.-Giridih.

¶44

35.Kirna Devi D/o late Parmeshwar Rai, r/o village-Rautara, P.O. & P.S Chitra, Dist.-Deoghar.

¶45

36.Dukhani Devi w/o late Sahdeo Rai.

¶46

37.Yamuna Rai S/o late Angrej Rai.

¶47

38.Santosh Rai S/o late Angrej Rai, 36 to 38 R/o village-Dundwadih, P.O. Babhangama, P.S.-Sarath, Dist.-Deoghar.

¶48

39.Suman Rai S/o late Angrej Rai.

¶49

40.Sushil Rai S/o late Angrej Rai.

¶50

41.Subodh Rai S/o late Angrej Rai, 39 to 41 R/o village-Jogiatikur, P.O.-Manigarhi, P.S.-Sarwan, Dist.-Deoghar.

¶51

42.Jayanti Devi D/o late Angrej Rai, R/o village-Simra, P.O.Uperbandha, P.S.-Palojori, Dist.-Deoghar.

¶52

... ... Defendants 2^nd Party/Respondents 2^nd party/Respondents.

¶53

43.Jawahar Rai S/o late Yugal Rai.

¶54

44.Jai Prakash Rai S/o late Yugal Rai.

¶55

45.Subal Rai S/o late Yugal Rai.

¶56

46.Madan Rai S/o late Yugal Rai, 43 to 46 R/o village-Dundwadih, P.O.-Babhangama, P.S.-Sarath, Dist.-Deoghar.

¶57

47.Rijha Devi, D/o late Bhadi Rai, W/o late Narayan Rai, R/o villageBasgana, P.O.-Pasam, P.S.-Birni, Dist.-Giridih.

¶58

... ... Defendants 3^rd Party/Respondents 3^rd party/Respondents.

¶59

48.Nawal Kishore Rai S/o late Tirath Nath Rai, R/o village-Pansari, P.O. Babhangama, P.S.-Sarath, Dist.-Deoghar.

¶60

49.Anar Devi, D/o late Tirath Nath Rai, R/o village-Bansakola, P.O.Bansakola, P.S.-Jasidih, Dist.-Deoghar.

¶61

50.Nirmala Devi, D/o late Tirath Nath Rai, R/o village-Jamdiha, P.O. & P.S.-Chatro, Dist.-Giridih.

¶62

51.Sunil Rai S/o late Kamleshwari Rai.

¶63

52.Dhurub Rai S/o late Kamleshwari Rai.

¶64

53.Sanjai Rai S/o late Kamleshwari Rai, all 51 to 53 R/o villagePansari, P.O. Babhangama, P.S.-Sarath, Dist.-Deoghar.

¶65

54.Krishna Murari Rai S/o late Kashi Rai.

¶66

55.Prahlad Ray, S/o: Late Harkhu Rai.

¶67

56.Abinash Roy, S/o: Late Harkhu Rai

¶68

57.Mamleshwar Rai, S/o: Late Chhatradhari Rai.

¶69

¶70

2025:JHHC:37814

¶71

58.Tarkeshwar Rai, S/o Late Chhatradhari Rai, 54 to 58 R/o: VillageDundwadih, P.O.- Babhangama, P.S.- Sarath, District-Deoghar. … … Defendant 4^th party/Respondent 4^th party/Respondents

¶72

¶73

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

¶74

¶75

For the Appellant : Mr. P.C. Roy, Advocate : Mr. Nityanand Pd. Choudhary, Advocate : Mr. Shiv Shankar Jee, Advocate For the Respondents : None ---

¶76

15 /15.12.2025

¶77

1. Heard the learned counsel for the appellant.

¶78

2. This 2^nd appeal has been filed against the judgment dated 06.06.2023 (decree signed on 19.06.2023) passed by learned District Judge-1, Madhupur (Deoghar) in Civil Appeal No. 38 of 2019 affirming the judgment dated 11.06.2019 (decree signed on 20.06.2019) passed by learned Civil Judge (Sr. Division)-I, Deoghar in Title (Partition)Suit No. 70 of 2005.

¶79

3. The learned trial court had dismissed the suit filed by the plaintiff and the learned 1^st appellate court had affirmed the judgment of the learned trial court. Consequently, the plaintiff is the appellant before this Court.

¶80

4. The suit was filed for the following reliefs:-

¶81

a) A preliminary decree specifying the plaintiff’s share in the suit properties described in the schedules of the plaint.

¶82

b) For appointment of an Amin Commissioner to effect partition by metes and bounds in accordance with preliminary decree.

¶83

c) For final decree empowering the Amin Commissioner’s report

¶84

d) For cost of the suit.

¶85

e) For such other relief or reliefs as the court may deem fit and necessary.

¶86

5. Learned counsel for the appellant has submitted that the learned courts have wrongly interpreted Exhibit-1 inasmuch as the children of Uma Rai and Gauri Rai have been duly named in the said exhibit. According to him, this document itself goes to show that Uma Rai and Gauri Rai were brothers. Learned counsel submits that both of them were sons of Lakshman Rai. He submits that on account of this aspect

¶87

¶88

2025:JHHC:37814

¶89

of the matter both the judgments are perverse and a substantial question of law be framed.

¶90

6. After hearing the learned counsel for the appellant, this Court finds that the suit was filed seeking a preliminary decree specifying the plaintiff’s share with respect to the suit properties.

¶91

7. The specific case of the plaintiff was that properties described in the schedule 'A' was recorded in the names of Hari Rai, Pancham Rai, Hakim Rai, sons of Gouri Rai and Dwari Rai and Bhadi Rai sons of Uma Rai in the Gantzer's settlement. It was the case of the plaintiff that the suit properties described in the schedule B, C, D, E and F were acquired jointly by the aforesaid recorded tenants and out of joint family funds and they belonged to the same family. It was their further case that Lakshman Rai was the common ancestor of the parties and he died leaving behind his two sons Gouri Rai and Uma Rai who had jointly inherited the properties.

¶92

8. It was their further case that the recorded tenant Hari Rai died in 1957 in the state of jointness leaving behind his only daughter Rukmini Devi and his wife had predeceased him. After the death of Hari Rai, his interest devolved upon his only daughter Rukmini Devi and after the death of Rukmini Devi, the same was succeeded and devolved upon the defendant 1^st party as her descendants. The defendants 2^nd party are the descendants of the recorded tenants Pancham Rai and Hakim Rai, the defendants 3^rd party are the descendants of the recorded tenants Bhadi Rai, and further the defendants 4^th party and the plaintiff are the descendants of the recorded tenant Dwari Rai.

¶93

9. It was their case that after the death of the recorded tenants namely Hari Rai, Pancham Rai, Hakim Rai and Dwari Rai, the descendants of the Pancham Rai and Hakim Rai separated in mess, residence and cultivation from that of the recorded tenant Bhadi Rai and the sons of Dwari Rai. Further, Bhadi Rai and sons of his brother Dwari Rai remained joint in mess, house and cultivation and Bhadi Rai was the Karta of the joint family of himself and of the sons of

¶94

¶95

2025:JHHC:37814

¶96

Dwari Rai. After the death of Bhadi Rai, his son Jugal Rai and the sons of Dwari Rai remained joint in all respect for a long time and after the death of Jugal Rai, the sons of Jugal Rai and the descendants of Dwari Rai separated in mess, residence and cultivation.

¶97

10. It was their further case that in course of trial it was learnt that defendant 1^st party and 2^nd party have relied and referred in Title (P) Suit No. 04 of 1964 and its judgment and decree and also final decree and it was asserted that the suit was collusive and against the Parcha entry and without joining necessary parties and in the said partition suit it was wrongly shown that Uma Rai was son of Gouri Rai in genealogical table of the plaint. It was also asserted that even the Amin Commissioner report was collusive and without notice to the contesting defendants of the suit. It was also asserted that the plaintiff and the defendants of the said suit in collusion played fraud against the contesting defendants of the said case and filed a compromise petition among themselves and the suit was ultimately disposed of. It was asserted that the decree passed in Title (P) Suit No. 04 of 1964 was not binding upon the present plaintiff.

¶98

11. It was asserted that there has never been partition of the joint property and was being cultivated separately by way of convenience and in absence of the regular partition, the plaintiff called upon the defendants in March 1998 for an amicable partition to which the defendants did not agree. It was also asserted that the Schedule property has been found in possession of the parties as per their legitimate share which completely falsifies the entire foul game of the T.S. No. 04 of 1964 and its subsequent collusive order. The cause of action for the suit arose in sometimes in the month of March, 1998.

¶99

12. The defendant 1^st party and 2^nd party No. 1, 2, 4, 5, 6, 9, 10, 11, 12, 13, 14, 16, 19, 20, 24, 28 and 29 filed their written statement, who alleged that the present suit was collusive and was filed by suppressing the earliest suit which was Title (P) Suit No. 04 of 1964. The said suit was filed by late Rukmini Devi the only daughter and heir of Hari Rai, who died on 13.04.1957 and the suit was for

¶100

¶101

2025:JHHC:37814

¶102

partition and allotment of her 1/4^th share after partition by metes and bounds who was represented by defendant 1^st party.

¶103

13. It was also asserted that the plaintiff's grandfather Soukhi Rai, his brothers and his uncles Bhadi Rai represented fully the branch of Uma Rai, the eldest son of Gouri Rai, and brother of recorded tenant Hari Rai and others contested the suit hotly and seriously.

¶104

14. It was also asserted that the plaintiff's claim of one fourth share was decreed in the said suit and the contesting defendants including the plaintiff's predecessor-in-interest went in appeal which was decided by the learned 2^nd A.D.J. vide judgment dated 30.03.1974 in Title Appeal No. 35 of 1966 / 74 of 1973 which was dismissed on merit. The second appeal was also dismissed by the High Court. Later on, the suit was transferred to the court of the Assistant Settlement Officer Deoghar for hearing during final decree which was numbered as Title (Partition) Suit No. 04 of 1984 in which after thorough hearing and partition final decree was passed on 24.04.1987 where all the four branches of Uma Rai, Hari Rai, Pancham Rai and Hakim Rai were fully represented and allotted their respective shares i.e. one fourth each branch.

¶105

15. It was also asserted that had Uma Rai being the brother of Gouri Rai when in Title (P) Suit No. 04 of 1964 the branch of Uma Rai would have been entitled to half share and not one fourth share. It was denied that in the alleged previous partition the genealogy was admitted.

¶106

16. The defendant Nos. 32, 33, 34 & 35, the defendant 3^rd set also filed their written statement supported the case of the plaintiff by stating that the genealogical table of the present case is true. The defendant Nos. 37, 41, 42, 43, 44, 45 and 46, the defendant 4^th set also filed their written statement and supported the case of the plaintiff and asserted that the decree in Title (Partition) Suit No. 04 of 1964 is collusive and had been obtained by committing fraud.

¶107

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

¶108

¶109

2025:JHHC:37814

¶110

i. Whether the Suit is maintainable.

¶111

ii. Whether the plaintiff has valid cause of action to present the suit.

¶112

iii. Whether there is unity of title and possession between the parties.

¶113

iv. Whether there was a previous partition of suit properties between the parties.

¶114

v. Whether the suit is barred by law of Res-judicata.

¶115

vi. Whether Gouri Rai and Uma Rai were brother or father and son.

¶116

vii. Whether plaintiff is entitled to get relief/reliefs as prayed for.

¶117

18. The learned trial court considered the oral and the documentary evidences and took up the issue No. (iii), (iv) and (vi) together and ultimately decided these issues in favour of the defendants and held that Gouri Rai and Uma Rai were not brothers but were father and son.

¶118

19. The learned trial court recorded that the genealogical table given by Rukmini Devi in Title (P) Suit No. 04 of 1964 stood admitted by all the contesting defendants and the defence was only regarding previous partition. The court also recorded that the reliefs sought for in the plaint of the present case did not whisper any relief for undoing the preliminary and final decree including the delivery of possession of the allotted shares passed and confirmed by the competent Civil Court in the earlier Title (P) Suit No. 04 of 1964. It was also recorded that the oral evidence given by the plaintiff himself would establish that the plaintiff was born after passing of the preliminary decree passed in Title (P) Suit No. 04 of 1964 as in cross examination it has come that his year of birth was 1978. The learned trial court also recorded that in paragraph 16 of the deposition of the plaintiff, he admitted the fact that Jamuna Prasad Rai was his Baba (Dada) and as per the genealogical table Jamuna Prasad Rai was described as the grand son of Hakim Rai and the plaintiff also admitted the fact that Soukhi Rai was his own grand father and in this way Soukhi Rai and Jamuna Prasad Rai are cousin brothers. The learned trial court recorded that it was clearly admitted that Hakim Rai was the uncle of Dwari Rai and Dwari Rai was the nephew of Hakim

¶119

¶120

2025:JHHC:37814

¶121

Rai and hence Uma Rai was established as the son of Gauri Rai and not the brother of Gauri Rai and the issue was decided against the plaintiff .

¶122

20. The learned trial court took up the issue Nos. (i), (ii), (v) and (vii) and held that the plaintiff had no valid cause of action and ultimately the suit was dismissed.

¶123

21. So far as the learned 1^st appellate court is concerned, the following points for determination were framed by the learned 1^st appellate court.

¶124

Point No.1- Whether the impugned judgment of the court below suffers from any illegality, irregularity and/or any other defects either on the facts or on the law and requires interference/ modification or it is properly decided and needs no interference?

¶125

Point No. 2 – Whether there is any unity of title and possession of the plaintiff and defendants on the suit land shown in the schedule of the plaint?

¶126

Point No. 3 – Whether Decree obtained in Title (P) Suit No. 04/1964 by playing fraud after furnishing false genealogy by declaring Uma Rai was the son of Gouri Rai or actually Uma Rai was the brother of Gouri Rai?

¶127

Point No. 4 – Whether the plaintiff is entitled to decree of partition as claimed in the plaint and suit is fit to be decreed?

¶128

22. The learned 1^st appellate court has considered the materials on record and found that in the present case the parties of Title (P) Suit No. 04 of 1964 were predecessor of both the sides and the properties were the same as mentioned in the schedule of the plaint of the present case. The earlier title partition suit was brought by Rukmini Devi who was the sole daughter of recorded tenant Hari Rai and also recorded that the genealogy given in Title (P) Suit no. 04 of 1964 was never controverted and according to the genealogy Gouri Rai is the son of Lakshman Rai and Gouri Rai had four sons namely Uma Rai, Hakim Rai, Pancham Rai and Hari Rai. The findings of the learned 1^st appellate court is as under:-

¶129

“In the present case the parties of Title (P) Suit 04/1964 were the predecessors of the both sides and the properties were the same as mentioned in the schedule of the plaint of this present case. The aforesaid case was brought by Rukmini Devi who was the sole daughter of recorded tenant Hari Rai and she

¶130

¶131

2025:JHHC:37814

¶132

had brought the suit for partition of all the landed properties which are also mentioned in the schedules of the present plaint. So the judgment passed in the above case is relevant because it is passed between the predecessors of the both parties and for the same properties. Exhibit E is the Judgment delivered by Ld. Subordinate Judge, Deoghar in the aforesaid case and finding of aforesaid judgment is relevant as because it is passed in between the parties. As per exhibit E, the genealogy given, by Rukmini Devi in Title (P) Suit no. 4/1964 had not been controverted by any party in the aforesaid case. According to aforesaid genealogy Gouri Rai is the son of Laxman Rai and Gouri Rai had four sons namely Uma Rai, Hakim Rai, Pancham Rai and Hari Rai. And Rukmini Devi was sole Daughter of Hari Rai so she had brought Title (P) Suit no. 4/1964 to get one fourth share in the Scheduled property and the aforesaid genealogy has been admitted by the each party which is evident for para 5 of exhibit E. Further the aforesaid suit decreed and the appeal was filed against the aforesaid decree but that was abated and against the abatement appeal was filed but that was dismissed by the 2nd Additional District Judge, Dumka vide order dated 30.03.1969 (Exhibit B). So the judgment passed by ld Subordinate judge became final and the findings of the aforesaid judgment became relevant.

¶133

One thing has also been pleaded on behalf of the appellant/plaintiff that the judgment of Title (P) Suit no. 04/1964 was obtained on the basis of fraud. As per Order 6 Rule 4 of CPC following Particulars to be given when fraud etc pleaded – “In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

¶134

In this case it has been pleaded on behalf of appellant/plaintiff that the Rukmini Devi had been obtained the decree on the basis of wrong genealogy and also with the connivance of Bhadi Rai. But as discussed above the plaintiff has not produced any cogent evidence to prove that Uma Rai and Gouri Rai were brothers. If for the sake of argument this is to be considered that Uma Rai and Gouri Rai were brothers. Then there was only gap of one generation in between Bhadi Rai and Gouri and Uma Rai. Whereas there are gap of 4 generations in between appellant/plaintiff and Uma Rai. If a question asked from a common prudent man

¶135

¶136

2025:JHHC:37814

¶137

that who can tell better about the relation between Hari Rai and Uma Rai. Then certainly the answer will be Bhadi Rai. As because he is nearest successor of Uma Rai and Gouri Rai. So on the basis of above reasoning it can be safely said that if Bhadi Rai had not controverted the aforesaid genealogy as given by the Rukmini Devi then how it can be said that Gouri Rai and Uma Rai were brothers and the decree of Title (P) Suit no. 04/1964 was obtained on the basis of fraud. Further another case Title Suit no. 15/1987 had been filed on behalf of Prahlad Rai etc for the same subject matter and the plaint of aforesaid case has been filed on behalf of the respondents/defendants (Ext. D). On perusal of Ext. D, it appears that in this case the plaintiffs of this case had given same genealogy as given by the Rukmini Devi. So on the basis of aforesaid discussions, it is quite clear that appellant/ plaintiff has failed brought any cogent evidence from which it can be inferred that Uma Rai was brother of Gouri Rai and the judgment and decree passed in Title (P) Suit 04/1964 obtained by suppressing material facts. So this point decided against the plaintiff.”

¶138

23. The learned 1^st appellate court ultimately held that it is quite clear that the plaintiff has failed to bring any cogent evidence from which it can be inferred that Uma Rai was brother of Gouri Rai and also failed to prove that the judgment and decree passed in Title (P) Suit 04 of 1964 was obtained by suppressing material facts.

¶139

24. While deciding point No.2, the learned 1^st appellate court recorded that the parties were in possession of their respective shares as per preliminary decree and final decree of Title (P) Suit no. 04 of 1964 for the same properties as involved in the present suit and ultimately held that there was previous partition of the suit properties. Learned 1^st appellate court has decided point No.2 against appellant/plaintiff.

¶140

25. While deciding point Nos. 1 & 4 the learned 1^st appellate court recorded that the predecessor-in-interest of both parties were parties to the Title (P) Suit No. 04 of 1964 and for the same matter, the decree and the judgment took finality. Further for the same reason Title Suit No. 15 of 1987 was decided on the preliminary issue of res-judicata vide order dated 30/04/1991 by the Court of Assistant Settlement Officer. The learned court was of the view that the principles of

¶141

¶142

2025:JHHC:37814

¶143

constructive res-judicata will be applicable in the present case and the compromise in the earlier title suit was for only purpose of the exchange of the suit land between the parties. So it could not be said that the final order took place on the basis of compromise. The findings of the learned 1^st appellate court is recorded as under:-

¶144

“In the present case the predecessor-in-interest of both parties were parties to the Title (P) Suit No. 04/1964 and for the same matter and the decree and order of that judgment took finality after passing the abatement of the appeal. Further for the same reason Title Suit no. 15/1987 decided on the preliminary issue of resjudicata vide order dt. 30/04/1991 by the Court of ASO. So the principles of constructive resjudicata will be applicable in this case. Moreover the compromise was for only purpose of the exchange of the suit land between the parties. So it can not be said that the final order took place on the basis of compromise. It was just brought for correction of Amin Commissioner Report regarding the exchange of some lands involved in the aforesaid suit. Further one point is also appropriate to mention here that Vide judgment dated 30/05/1994, the Ld. Commissioner only granted permission to Title Suit and for Title Partition Suit. Considering the aforesaid facts I find and hold that the suit of the Appellant/Plaintiff is hopelessly barred by the principles of Constructive Res Judicata. Hence I don’t find that the impugned judgment of the court below suffers from any illegality, irregularity and/or any other defects either on the facts or on the law and requires interference/ modification or it is properly decided and needs no interference? And on the basis of aforesaid finding I hold that the Appellant/plaintiff is not entitled for a decree of partition of the suit lands mentioned in the schedules of the plaint. Hence both the issues no. 1 and 4 decided against the appellant/plaintiff. Thus on the basis of the aforesaid discussions I find that there is no merit in this appeal. Hence it is ordered to be dismissed on contest without cost.”

¶145

26. This Court has gone through both the judgments passed by the learned courts and finds that there are concurrent findings recorded by both the courts with respect to the previous partition in Title (P) Suit No. 04 of 1964 and both the parties were in possession of their respective shares arising out of the said partition suit. Further, the plaintiff also failed to bring any cogent evidence from which it can be

¶146

¶147

2025:JHHC:37814

¶148

inferred that Uma Rai was brother of Gouri Rai and also failed to prove that the judgment and decree passed in Title (P) Suit 04 of 1964 was obtained by suppressing material facts.

¶149

27. The only argument advanced by the learned counsel for the appellant by referring to Exhibit-1 is to submit that the names of children of Uma Rai and Gouri Rai was recorded therein. However, admittedly their father’s name has not been recorded in the said document and even during the course of argument also the learned counsel for the appellant has admitted that the name of their fathers has not been recorded in Exhibit-1. A copy of the exhibit-1 has been produced during the course of hearing by the learned counsel for the appellant. Otherwise also, this Court finds that both learned courts have considered every aspect of the respective case of the parties and have held that there was already a previous partition with respect to the suit property in Title (P) Suit No.04 of 1964 amongst the same parties /their predecessor in interest and subsequently, another Title Suit No. 15 of 1987 was also dismissed by holding that the suit was barred by res-judicata.

¶150

28. This Court finds that there are concurrent findings recorded by both the courts based on appreciation of materials on record. The learned counsel for the appellant has harped upon Exhibit-1, but could not point out any perversity in the matter of appreciation of materials on record including the appreciation of Exhibit-1. The learned 1^st appellate court after considering the documentary evidences including Exhibit-1 has come to a definite finding that on perusal of the said documents it was not clear whether Gouri Rai and Uma Rai were brothers and the said document does not clearly illustrate about the shares of the said recorded raiyats in the disputed land and it could not be said that Gouri Rai and Uma Rai were brothers. The learned 1^st appellate court has also refused to rely upon Exhibit-2 by observing that Exhibit-2 was prepared on 28.01.2005 i.e. during the pendency of the suit. The plaintiff has failed to prove that Uma Rai and Gouri Rai were full brothers and were sons of Lakshman Rai.

¶151

¶152

2025:JHHC:37814

¶153

29. Accordingly, no question of law much less substantial question of law, is involved in this case.

¶154

30. This 2^nd appeal is accordingly dismissed.

¶155

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

¶156

32. Let a copy of this order be communicated to the concerned courts through “Fax/e-mail”.

¶157