Thandabala Dasi Alias Loharin Vs Uma Lohar

2025:JHHC:19872

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 539 of 2018

Thandabala Dasi @ Loharin, aged about 58 years, D/o Late Kinkar Lohar, wife of Bhairab Lohar, resident of village Garjuri, P.S. Kundahit, P.O.- Palajori, Subdivision & District Jamtara.

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… … Defendant/Respondent/Appellant

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Versus Shyamapada Lohar, son of Late Kinkar Lohar (dead and substituted vide order dated 07.02.2023) 1(a) Uma Lohar, w/o Late Shyamapada Lohar 1(b) Mritunjay Lohar 1(c) Sanjay Lohar Both sons of Late Shyamapada Lohar 1(d) Shibani Lohar w/o Bhubhan Lohar 1(e) Mithu Lohar w/o Santosh Lohar 1(f) Chandana Lohar, w/o Kailash Lohar 1(g) Chaina Lohar, w/o Rajen Lohar 1(h) Chanchala Lohar, w/o Laltu Lohar 1(d) to 1(h) daughters of Shyamapada Lohar All R/o village Garjuri, P.O. Palajori, P.S. Kundahit, District Jamatara. … … Respondents ---

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Siddharth Gautam, Advocate For the Respondents : Mr. Ashutosh Pd. Joshi, Advocate ---

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12 /21.07.2025 Heard the learned counsels appearing on behalf of the parties.

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2. This second appeal has been filed against the judgment dated 31.08.2018 (decree signed on 10.09.2018) passed by learned Principal District Judge, Jamtara in Civil Appeal No. 8 of 2018 whereby the learned 1^st appellate court has allowed the appeal and reversed the judgment dated 10.01.2018 and decree dated 27.01.2018 passed by learned Civil Judge (Sr. Div.)-I, Jamtara in Original Suit No. 27 of 2010. The learned trial court had dismissed the suit.

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3. Vide order dated 16.12.2021, this second appeal was admitted for final hearing on following substantial questions of law:

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“(1) Whether the first appellate court while reversing the judgment of the trial court by not answering the issue no. 2 and also the prayer of the plaintiff in respect of partition of the property in question, has committed illegality.

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(2) Whether the Court should have decided the share of the parties, since the claim of partition was also to be adjudicated by the First Appellate Court.”

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4. The specific case of the plaintiff was that the plaintiff was the adopted son of Kinkar Lohar who had properties mentioned in schedule-B of the plaint. It was his specific case that the sole defendant was the only daughter of Kinkar Lohar. However, on account of adoption, he was entitled to 50% share of schedule-B property. It was his further case that so far as schedule-A property which is ½ share of schedule-B property is concerned, the same stood mutated in the name of the plaintiff by virtue of previous partition between the plaintiff and the defendant. However, later on the defendant was trying to dispossess the plaintiff by claiming to be the sole legal heir and successor of Kinkar Lohar and therefore, the suit was filed for declaration of title with respect to schedule-A property of the plaintiff and in the alternative, for partition of schedule-B property and a preliminary decree for half share of the plaintiff in the property and then for a final decree with respect to half share in schedule-B property.

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5. The defendant contested the suit by filing a written statement and questioned the validity of adoption of the plaintiff and claimed that the defendant had right, title and interest over the suit property being legal heir and successor of Kinkar Lohar whose last rites was also performed by her.

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

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“1. Is the suit maintainable in its present form?

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2. Is there any valid cause of action for the suit?

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3. Is the suit barred by the law of limitation?

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4. Do the subject matter of the suit is within the pecuniary jurisdiction of this court ?

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5. Do the plaintiff has got any right title and interest over the suit property?

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6. Is the plaintiff entitled for grant of relief/reliefs as claimed for?”

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7. Both the parties led oral and documentary evidences. In support his case, the plaintiff produced and got examined six witnesses. P.W.-1 Shyampada Lohar (plaintiff), P.W.-2 Boul Bouri, P.W.-3 Sahdeo Lohar, P.W. 4 Ajay Kumar, P.W. 5 Puran Lohar and P.W. 6 Shankar Pandey were examined on behalf of the plaintiff. Apart from the oral evidences, certain documentary evidences were also produced by the plaintiff which were marked exhibits as under:

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I. Ext.1 - C/C of purcha of mouja Garjuri A.K.J no. 102.

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II. Ext. 2 - C/c of Mutation case no. 138/79-80, order dated 14.09.1982.

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III. Ext. 3- C/C of order dated 23.05.1996 passed in T.S 16/85 by Sub- Judge II, Jamtara.

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IV. Ext. 4- C/C of Deed of Adoption no. 85 dated 18.03.1975.

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V. Ext. 5 - C/C of plaint T.S no. 16/85.

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VI. Ext. 6 - C/C of written statement T.S. 16/85.

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VII. Ext. 7 - Rent receipt of (1973-74).

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8. The defendant examined altogether five witnesses on her behalf. D.W-1 was Paresh Badyakar, D.W. 2 was Basir Mian, D.W. 3 was Sanatan Bagti, D.W. 4 was Thandabala Dasi (defendant) and D.W. 5 was Dinbandhu Dubey. The defendant adduced only two documentary evidences. Ext. A was C/C of order dated 23.05.2017 in Mutation case no. 77/2006-07 and Ext. B to B/3 were Rent receipts.

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9. The learned trial court held that the adoption of the plaintiff was not valid and consequently dismissed the suit.

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10. The plaintiff filed appeal and so far as the learned 1^st appellate court is concerned, two points for determination were framed:

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“(i) Whether the adoption deed is a valid document or not?

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(ii) Whether the appellant/plaintiff has got right, title and interest over the suit property or not?”

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11. Learned counsel for the appellant has submitted that the learned 1^st appellate court held that the adoption of the plaintiff was valid and further recorded that the mutation does not create any right, title and interest of the parties over the suit land, although the suit land was mutated in favour of the defendant vide order dated 23.05.2007 in

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Mutation Case No. 77 of 2006-07 as well as the plaintiff vide exhibit-2 which is an order dated 14.09.1982 in Mutation Case No. 138 of 197980. The learned 1^st appellate court further observed that it has already been established that adoption deed is a valid document and the defendant failed to disprove it and accordingly, learned 1^st appellate court held that the plaintiff has got right, title and interest over the suit property.

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12. Learned counsel for the appellant has submitted that the learned 1^st appellate court did not consider the point of determination no. (ii) properly, inasmuch as, the plaintiff was claiming only half share of schedule-B property which constituted schedule-A property. He has also submitted that the Court has not entered into the decision with respect to share of the parties. He has further submitted that there has been no adjudication with respect to previous partition claimed by the plaintiff with respect to the suit property with the defendant. The learned counsel has submitted that on account of the aforesaid facts and circumstances, both the substantial questions of law are fit to be answered in favour of the appellant and the matter may be remanded to the learned 1^st appellate court for passing appropriate order in connection with the partition of the schedule-B property as the adoption having been held valid, the plaintiff has a share in the schedule-B property. He has also submitted that the claim of previous partition is also required to be adjudicated.

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13. Learned counsel for the respondents, on the other hand, has opposed the prayer and has submitted that the learned 1^st appellate court has recorded that the plaintiff has got right, title and interest over the suit property. He has further submitted that the materials are already available on record and the matter can be finally adjudicated by this Court in this second appeal itself and the issue which has not been decided by the learned 1^st appellate court can also be decided.

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2. Learned counsel for the respondents has referred to Order XLI Rule 24 of the Code of Civil Procedure which actually deals with the power of the Court while dealing with First Appeals.

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14. In response, the learned counsel for the appellant has submitted that the second appeal is to be decided on the substantial questions of law framed by the Court and therefore, if the substantial questions of law are ultimately decided in favour of the appellant, the matter has to be remanded to the learned 1^st appellate court as other connected issue in connection with partition is required to be decided and taken care of once the adoption is finally held to be valid by the learned 1^st appellate court.

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Findings of this Court

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15. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the plaintiff claimed to be the adopted son of Kinkar Lohar and the suit was filed against the only daughter of Kinkar Lohar. The plaintiff claimed 50% of schedule-B property on the basis of adoption by Kinkar Lohar. This Court finds that the learned 1^st appellate court has ultimately held that the adoption was valid, but so far as the right, title and interest with respect to suit property is concerned, which was relating to point of determination no. (ii) framed by the learned 1^st appellate court, the learned 1^st appellate court has simply held that appellant/plaintiff has got right, title and interest over the suit property without qualifying as to whether the court was referring to schedule-A property or scheduleB property. This Court also finds that the learned 1^st appellate court completely failed to consider the consequence of the finding regarding adoption and also consider the further relief which was prayed for by the plaintiff claiming partition over the suit property or relief with regard to declaration of right, title, interest and possession of the plaintiff in relation to previous partition as claimed by the plaintiff. The learned 1^st appellate court has not gone into the point of determination no. (ii) at all and consequently, neither the point of determination no. (ii) which has been termed as issue no. (2) while framing the substantial question of law by this Court, has been decided nor the share of the respective parties has been decided.

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16. Consequently, both the substantial questions of law are answered in favour of the appellant and against the respondents. The 1^st appellate

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court while reversing the judgment of the trial court has committed illegality by not answering the issue no. 2 (point of determination no. (ii) and also the prayer of the plaintiff in respect of partition of the property in question. This court is also of the considered view that the Court should have decided the share of the parties, since the claim of partition/ previous partition was also to be adjudicated by the First Appellate Court.

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17. However, the matter does not end here. The needful is required to be done by the learned 1^st appellate court with respect to claim of previous partition/partition. Accordingly, the matter is remitted to the learned 1^st appellate court for deciding the issue regarding partition with respect to the suit properties. It is made clear that the finding of validity of adoption has attained finality.

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18. The parties to appear before the learned 1^st appellate court or his successor court on 22.09.2025 at 11.00 am .

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19. Since the suit is of the year 2010, the learned 1^st appellate court shall expeditiously decide the appeal. Parties to cooperate.

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20. This second appeal is accordingly disposed of.

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21. Pending interlocutory application, if any, is closed.

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22. Let the records received from the learned court concerned be sent back forthwith.

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23. Let this order be communicated to the learned court concerned through ‘FAX/email’.