The High Court
Case Details
1 Second Appeal No. 24 of 2010 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- Second Appeal No. 24 of 2010 ---- 1.Kinu Rana, son of Jhaman Rana 2.Sukri Devi, daughter of late Jhaman Rana and wife of Jiban Rana 3.Lukhari Devi, daughter of late Jhaman Rana and wife of Prayag Rana 4.Ashtoria Devi, wife of Rewa Ran and daughter of late Jhaman Rana 5.Baloiya Devi, wife of Sri Hari Rana daughter of late Jhaman Rana 6.Ganesh Devi daughter of late Jhaman Rana and wife of Sri Ugdeo Rana 7.Bajwa Devi daughter of late Jhaman Rana wife of Sri Lakhan Rana 8(a).Meghan Rana 8(b).Jaganath Rana 8(c).Most. Jagni Devi 8(d).Jirwa Devi 8(e).Kaushalaya Devi 8(f).Fulmati Devi 9(i).Suraj Rana 9(ii).Pafun Rana 9(iii).Raju Rana 10.Jodhi Rana, son of late Lalo Rana 11.Somar Rana, son of late Lalo Rana 12.Dhaneshwar Rana son of late Lalo Rana 13.Nagia Devi wife of Chanda Rana daughter of late Lalo Rana ....Defendants/Appellants/Appellants -- Versus -- 1.Most Piyasawa Devi, wife of late Asho Rana 2.Baijnath Rana, s/o late Asho Rana 3.Deokinandan Rana, s/o late Asho Rana 4.Govind Rana, s/o of late Asho Rana 5.Mundri Devi daughter of late Asho Rana wife of Sri Dwarika Rana 6.Sudoiya Devi daughter of late Asho Rana wife of Sri Prakash Rana 7.Indewa Devi d/o late Asho Rana 8.Tapeshwar Rana son of late Daso Rana 9.Fudo Devi, d/o late Daso Rana 10.Teklal Rana s/o Jasmatia Devi-late Dular Rana 11.Artu Rana son of late Dular Rana 12(a).Sumit Rana 12(b).Puja Kumari 12(c).Gyatari Kumari 12(d).Kumkum Kumari 13.Ramesh Rana s/o late Jasmatia Devi-Dular Rana 14.Sumudri Devi 15.Kaushliya Devi 16.Jhumia Devi 17.Rumia Devi ….Plaintiffs/Respondents/Respondents ----
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Appellants For the Respondents :- Mr. Bhaiya Vishwajit Kumar , Advocate :- -- ---- 12/23.01.2023 Heard Mr. Bhaiya Vishwajit Kumar, learned counsel appearing on behalf of the appellants. The present second appeal has been filed being dissatisfied 2 Second Appeal No. 24 of 2010 with the judgment and decree dated 19.11.2009 (decree sealed and signed on 30.11.2009) passed by the leraned Additional District Judge, Fast Track Court-II, Chatra in Title Appeal No.3/2007 dismissing the appeal and confirming the judgment and decree dated 11.12.2006 (decree sealed and signed on 23.12.2006) in Partition Suit No.12/1998 passed by the learned Munsif Chatra. The appellant/plaintiffs have instituted the Partition Suit No.12 of 1998 before the learned Munsif, Chatra for a preliminary decree of partition of half share of the plaintiffs in the property mentioned in the scheduled-B of the plaint. The final decree was prepared by carving out separate takhta in the joint property in favour of the plaintiffs and separate possession of the same be delivered to the plaintiffs along with cost of suit. The plaintiffs have instituted the suit stating therein that in the plaint is that the plaintiff and the defendants are the descendants of common ancestor Jago Jagan Barhi of village Raham, P.5.Tandwa, Dist. Chatra. Jago Barhi acquired 15.25 acres of land in village Raham aforesaid with oral permission of the ex-landlord. Jago @ Jagan died prior to the last cadastral survey leaving behind him three sons namely Laldhari Barhi, Ramu Barhi and Nanhu Barhi who inherited the property acquired by Jago Bai jointly and came in possession over the same. They are Hindu governed by Mitakahra School of Hindu Law, Ramu Barhi, the 2nd son of common ancestor Jago Barhi separated from his brothers in mess and property just before the cadastral survey. As such, separate khata vide Khata No.186, 198 & 303 of village Raham was recorded separately in his name and the land allotted to him in separation was given in the khata. Laldhari and Nanhu remained joint. Thereafter Laldhari died in jointness leaving behind his widow and son Churaman Barhi. Since Nanhu was the elder brother he became the Karta of the 3 Second Appeal No. 24 of 2010 joint family comprising Nanhu, Laldhari and his son Churaman and accordingly, he was manager of the family and looking after the affairs of the family. Under these circumstances, the remaining land after giving to Ramu Barhi in separation was recorded in the following manner :- (1) Khata No.53 area 6.61 acres recorded in name of Nanhu. (11) Khata No.238 having 5 plots and area 2.11 acres recorded in name of Nanhu and Churaman. (111) Khata No. 245 plot No. 524 recorded in name of Nanhu and Churaman having area 0.87 acres. (iv) Khata No.320 area 1.78 acres recorded in name of Nanhu and Churaman. Accordingly, four khatas were prepared out of which three khatas i.e. Khata No.238, 245 and 320 were prepared in the name of Nanhu and Churaman “Bahissa Barabar” and Khata No.53 was prepared only in name of Nanhu. The rent for the lands of Khata No.320 was included in Khata No.53 also. The case of the defendants is that Defendants 1 to 7 filed written statement contesting the suit. They stated that the suit as framed is not maintainable. It is barred by law of limitation, adverse possession, ouster, estoppel and acquiescence. It is also barred under the Specific Relief Act. The suit is bad for non-joinder of necessary parties namely Kinu Rana s/o Jhaman Rana, Meghan Rana and Jagarnath Rana s/o Nando Rana, three daughters of Churaman Rana and grand sons of Churaman Rana namely Tapeshwar Rana and Fudwa Devi both son and daughter of Daso Rana as necessary party and they have not been made parties and the suit cannot be decided in their absence hence it is bound to fail. Mr. Bhaiya Vishwajit Kumar, the learned counsel for the appellants submits that the plaintiffs have not been able to prove the unity of title and possession and the plaintiffs have failed to prove the same by cogent evidence and on that point the learned trial court as well as the leraned appellate court has erred in holding that there is unity of title. On this ground, he submits that the judgment of the learned trial 4 Second Appeal No. 24 of 2010 court as well as the learned appellate court are perverse and this second appeal is fit to be admitted on the question of law. He relied in the case of “Bhagwati Prasad Sah and Others v. Dulhani Rameshwar Kumar” reported in AIR 1952 SC 72. Relying on this judgment, he submits that it is upon the plaintiff to prove about the jointness and one of the coparcener to separate, it is the onus lies upon the plaintiff to prove the same which has not been done and it has not been taken care of by the learned trial court and the learned appellate court. In view of the submission of Mr. Bhaiya Vishwajit Kumar, the learned counsel appearing on behalf of the appellants, the Court has gone through the judgment of the learned trial court as well as the learned appellate court. The learned court has framed the point at paragraph no.21 of the appellate court judgment and while deciding the issue no.5 and 6 whether the property of Nanu Barhi or the same is joint property or not? The appellate court considering the submission of the learned counsel for the appellants while deciding the issue nos.5 and 6 has concluded and admitted that Jago Barhi was the common ancestor of the parties. Jago Barhi died before the last cadastral survey leaving behind three sons namely, Laldhari @ Namdhari Barhi, Ramu Barhi and Nanhu Barhi. The descendants of Laldhari are the plaintiff group and the descendants of Nanhu who were defendants who put appearance before the learned appellate court. The case of the plaintiff was that Jago @ Jagan acquired several lands including the suit lands and he died leaving behind three sons as mentioned hereinabove. Ramu Barhi separated from the family and Laldhari remained joint. Laldhari died in jointness leaving behind his widow and son Churaman Barhi. Ramu Barhi and Nanhu Barhi were joint at the time of cadastral survey and separate khata vide Khata No.186, 198 and 303 of village Raham and the land which were in possession and cultivation of Nanhu in Khata no.53, 238, 245 and 320 recorded in the name of Nanhu Barhi and Churaman 5 Second Appeal No. 24 of 2010 “bahissa barabar” and this has been done in collusion with survey authority and considering the evidence and the materials on record, the appellate court has come to the conclusion that the recording khata no.53 in the name of Nanhu Barhi was not sufficient to show that there were partition since before. The land of khata no.53 ceased to be joint property before which was recorded separately in the name of Nanhu Barhi. Presumption regarding the jointness of property has also been considered by the learned appellate court and in light of the judgment of this Court in the case of “Deoki Mallah v. Surji Mallahain” reported in 1999 1 PLJR 199, and considering that the appellant/defendants have not been able to prove the partition and about there is no jointness, the learned appellate court has been pleased to affirm the judgment of the learned trial court. The contention of Mr. Bhaiya Vishwajit Kumar, the learned counsel for the appellants has not been accepted by the Court in view of the findings recorded by the learned trial court as well as the learned appellate court on the issue in question. The judgment relied by the learned counsel for the appellants is not in dispute, however, in the case in hand, the learned trial court as well as the appellate court has given the cogent reason of jointness as well as why khata no.53 was not considered as separate property. There is concurrent finding of both the learned courts. No law point is involved in the present second appeal. Accordingly, Second Appeal No.24 of 2010 is dismissed. Any pending petition also stands dismissed. ( Sanjay Kumar Dwivedi, J.) SI/