) 1. Kali Charan Das Dhan, son of late Chamar Singh Dhan Singh, aged v. 1. Durga
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 7 of 2021 (Against the judgment dated dated 15.10.2020 passed by learned District Judge, I, East Singhbhum, Jamshedpur in Civil Appeal No. 20 of 2019) 1. Kali Charan Das Dhan, son of late Chamar Singh Dhan Singh, aged about 43 years, resident of Ulidih, Mango, P.S.- Mango, Town Jamshedpur, Dist.- East Singhbhum, Jharkhand 2. Debelal DasDhan, son of late Chamar Singh Dhan, aged about 41 years, resident of Ulidih, Mango, P.O.- Mango, P.S.- Mango, Town Jamshedpur, Dist.- East Singhbhum, Jharkand --Defendants/Respondents/Appellants. Versus 1. Durga Dhan, son of Late Chamar Singh Dhan, resident of Ulidih Mango, P.O. and P.S.- Mango, Town- Jamshedpur, Dist.- East Singhbhum, Jharkhand - Plaintiff/ Appellant /Respondent. 2. Deputy Commissioner, East Singhbhum, P.O. and P.S.- Mango, Town- Jamshedpur, Dist.- East Singhbhum -Performa Defendant/ Performa Appellant / Performa Respondent. For the Appellants : Mr. Jorong Jedan Sanga , Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree of reversal dated 15.10.2020 passed by learned District Judge, I, East Singhbhum, Jamshedpur in Civil Appeal No. 20 of 2019 whereby and
Legal Reasoning
where under, learned First Appellate Court has allowed the appeal and set aside the judgment and decree dated 01.04.2019 passed in Title (P) Suit No. 106 of 2012 by learned Civil Judge (Sr. Div.) II, Jamshedpur, East Singhbhum and decreed the suit of the plaintiff for 1 SA No. 7 of 2021 preliminary decree declaring half share of the plaintiff in the suit property and also held that the defendant nos. 1 and 2 are entitled to 1/4th share each in the suit property. 3. The brief facts of the case is that the plaintiff filed original Title (P) Suit no. 106 of 2012 in the court of learned Civil Judge (Sr. Div.) II, Jamshedpur, East Singhbhum with a prayer for preliminary decree declaring half share of the plaintiff of the suit land and the consequential reliefs. 4. The case of the plaintiff in brief is that the suit land previously belonged to Basanti Dhan and stood recorded in her name during the recent survey settlement operation. The suit land is a self-acquired property of Basanti Dhan from her own income as she was an employee of TISCO Limited. Basanti Dhan had no issue. Basanti Dhan along with her husband Chamar Singh, adopted the plaintiff. By observing the relevant ceremonies and later on, executed a registered deed of adoption also. The plaintiff filed the Title suit no. 14 of 2002 in the court of learned Civil Judge (Sr. Div.) Jamshedpur against the defendant, claiming title over the property of Basanti Dhan by way of his adoption. During the lifetime of Basanti Dhan, her husband had a concubine and the defendants are the sons, born through the concubine, Dhania Devi, who is alleged to be the second wife of Chamar Singh. In Title Suit no. 14 of 2002, it was held by learned Civil Judge (Sr. Div.) Jamshedpur that the deed of adoption of the plaintiff was valid one but held that the plaintiff has inherited only half share of property, owned by Basanti Dhan and decided the entitlement of the plaintiff , in respect of half share. Though, Civil Judge (Sr. Div.) Jamshedpur in Title Suit no. 14 of 2002, held that the plaintiff is entitled to half share of the property of Basanti Dhan but did not allocate 2 SA No. 7 of 2021 the share independently among the plaintiff and the defendant, hence, the plaintiff filed the present suit for partition. The judgment and decree in Title Suit no. 14 of 2002 was not challenged by either of the parties and the same has attained finality. 5. The defendants in their written statement, challenged the maintainability of the suit on various technical grounds. Besides the defendants also pleaded that the suit land was purchased by the husband of Basanti Dhan in the name of Basanti Dhan. The house was constructed by the husband of Basanti Dhan, so the suit land was not self- acquired property of Basanti Dhan. They also challenged the adoption of the plaintiff by the Basanti Dhan and her husband. The defendants further pleaded that the judgment passed in Title Suit no. 14 of 2002 is a nullity as the suit was decided after the death of Chamar Singh Dhan, after substitution of his legal representatives. The defendants admitted that in Title Suit no. 14 of 2002, the shares were not allotted independently, to the defendants who were the legal heirs of Chamar Singh. 6. Learned trial court in Original Title (P) Suit no. 106 of 2012 on the basis of the pleadings of the parties, settled the following five issues:- I. Whether the suit is maintainable in its present form? II. Whether the suit suffers from mis-joinder and non-joinder of the necessary parties ? III. Whether there is unity of title, possession and interest between the plaintiff and defendants? IV. Whether the plaintiff has valid cause of action? V. Whether the plaintiff is entitled to get any relief or reliefs as claimed ? 7. In support of their case, the plaintiffs examined one witness and proved the documents, which have been marked as Ext. 1 and 2. From the side of the defendants, however, three witnesses were examined and no document was proved. 3 SA No. 7 of 2021 8. Learned trial court first took up issue no. I, III and IV together and after considering the evidence in the record, learned trial court came to the conclusion that the plaintiff has failed to prove his claim of partition through customary law of Oraon and Scheduled Tribes; though no such plea was taken by the defendants in their written statement and went on to hold that the plaintiff is not entitled for partition of the suit land and the plaintiff has no valid cause of action for the suit and that the suit is not maintainable. 9. Learned trial court next took up issue no. II and V and held that the plaintiff is not entitled to any relief and dismissed the suit of the plaintiff. 10. Being aggrieved by the judgment and decree passed by learned trial court, the plaintiff filed the Civil Appeal no. 20 of 2019 in the court of learned Principal District Judge, East Singhbhum at Jamshedpur which was ultimately heard and disposed of by learned First Appellate Court by the impugned judgment as already indicated above. 11. Learned First Appellate Court after considering the materials available in the record and submissions made before it, formulated the following two points for determination :- I. Whether the plaintiff / appellant having unity of title and unity of possession over the suit land and entitled a decree of partition of 1/2 share by metes and bounds for carving out his undivided share making separate Thakta of the allotment in respect of suit property by appointment of S.K.P.C. for effecting the separate possession on the basis of being adopted son of Basanti Dhan and her husband ? II. Is there any need to interfere with the judgment of learned court below? 12. Learned appellate court made independent appreciation 4 SA No. 7 of 2021 of the evidence in the record i.e. the deposition of the only witness examined by the plaintiff, the documents which has marked as Ext. 1 to 3 as well as the oral testimony of the three witnesses examined on behalf of the defendants and after making the independent appreciation of the evidence in the record, first took up the point for determination no. ‘I’ and on the basis of the evidence in the record, as well as the earlier judgment passed in Title Suit no. 14 of 2002 ; came to the conclusion that the plaintiff being the adopted son of Basanti Dhan and Chamar Singh, acquired right, title and interest over the suit property, as legal heirs of Basanti Dhan and Chamar Singh. Learned First Appellate Court considered that in Title Suit no. 14 of 2002, the plaintiff never claimed partition of the suit property and no issue of partition has been framed by the court concerned, so Chamar Singh, who was alive when Title Suit no. 14 of 2002 was filed, was not a necessary party to the Title Suit no. 14 of 2002; because Chamar Singh never questioned the adoption of the plaintiffs by him and his wife Basanti Dhan. Learned First Appellate Court further considered that the Title Suit no. 14 of 2002 was not a partition suit nor any preliminary decree for partition was passed in that suit, hence, Title (P) Suit no. 106 of 2012 does not involve the same issues that were involved in Title Suit no. 14 of 2002, hence, the Title (P) Suit no. 106 of 2012 is not barred by principle of res judicata and went on to hold that Title (P) Suit no. 106 of 2012 is maintainable. 13. Learned First Appellate Court also considered that in Title Suit no. 14 of 2002, learned Civil Judge (Sr. Div.), I, Jamshedpur, held that the son through concubine does not inherit the father’s property, accordingly, the plaintiff was held entitled to half share of Basanti Devi and the other half going to the father of Chamar Singh and after 5 SA No. 7 of 2021 his death, the portion of property of Chamar Singh will devolve upon his legal heirs. Learned First Appellate Court also considered that since in Title Suit no. 14 of 2002, it was held that the plaintiff is entitled to partition to the suit property to the extent of half share, as it has not been partitioned, so the plaintiff is legally entitled to get half share of the suit property besides the share from his father Chamar Singh but since the plaintiff has prayed for half share of the property, so the plaintiff cannot give any share, in excess of what has been prayed by the plaintiff and decreed the suit of the plaintiff by allowing the appeal, as already indicated above. 14. Learned counsel for the appellants submits that the learned First Appellate Court could not appreciate the evidence in the record in its right perspective and it is full of surmises and conjectures. It is next submitted that the learned First Appellate Court failed to consider that the suit land was purchased by the husband of Basanti Dhan. It is further submitted that in view of order II Rule 2 of the Code of Civil Procedure, relinquishment of the part of the claim by the plaintiff in Title Suit no. 14 of 2002 by claiming partition, debars the present Title (P) Suit no. 106 of 2012, hence, it is submitted that the judgment and decree passed by learned First Appellate Court be set aside and the judgment and decree passed by learned trial court be restored; after formulating appropriate substantial question of law. 15. Having heard the submissions made at the Bar and after going through the materials available in the record, it is
Legal Reasoning
pertinent to mention here that so far as the contention of the plaintiff that the suit property does not belong to Basanti Dhan is concerned, it is the consistent case of the plaintiff that Basanti Dhan was employed in TISCO and she purchased property out of her own income. In Title 6 SA No. 7 of 2021 suit no. 14 of 2002, learned Civil Judge, Sr. Div. I, Jamshedpur held that the defendant who are sons of Chamar Singh through a concubine, are not entitled to property of Basanti Devi. The said issue has already been decided by learned Civil Judge, Sr. Div. I, Jamshedpur in Title Suit no. 14 of 2002 wherein when the plaintiff filed Title Suit no. 14 of 2002 for declaration of title and recovery of possession, in respect of the suit land also, learned Civil judge, Sr. Div. I, Jamshedpur, held that the plaintiff is entitled to half share of the suit land of the suit also and said issue between the parties , having been attained finality, it is not open to be agitated by the defendant; after a competent court has held that the plaintiff is entitled to the half share of the suit property, that the plaintiffs are not entitled to the same, hence, there is no merit in this contention of the learned counsel for the appellant. 16. So far as the contention of the appellant regarding relinquishment of the claim of the partition, in view of Order II Rule 2 of the Code of Civil Procedure and the consequence thereof, as provided in Order II Rule 3, is concerned as already indicated above, Title Suit no. 14 of 2002 was filed basically asserting the adoption of the plaintiff and claiming title based on said adoption, against the defendants only, though the father of the plaintiff namely Chamar Singh was alive at that time but he was made a party because he never questioned the validity of the adoption, as he having himself adopted the plaintiff. So as there was no cause of action for partition, during the life time of Chamar Singh, for the plaintiff, this court is of the considered view that filing suit for the partition on the basis of the judgment and decree passed in Title Suit no. 14 of 2002, after the death of Chamar Singh, cannot be said to be hit by Order 7 SA No. 7 of 2021 II Rule 2 of the Code of Civil Procedure. So this Court is of the considered view that there is no merit in this contention of the plaintiff as well. 17. In view of the discussion made above, this court is of the considered view that there is absolutely no substantial question of law involved in this appeal. 18. Accordingly, this appeal being without any merit is dismissed. 19. Let a copy of this Judgment be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 2nd September, 2024 Smita /AFR 8 SA No. 7 of 2021