) 1. Babujan Mian 2. Jamal Mian, both sons of Late Dasu Mian, both v. 1. Tejali Mian 2. Manjoor Mian, both sons of Butan Mian 3. Azad Mian
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 62 of 2013 (Against the judgment and decree dated 21.02.2013 passed by learned District Judge-VI, at Hazaribag in Title Appeal No. 40 of 2011 ) 1. Babujan Mian 2. Jamal Mian, both sons of Late Dasu Mian, both residents of village- Bela Peto, P.O. & P.S.- Keredari, Dist.- Hazaribag …...Plaintiffs/ Respondent /Appellants Versus 1. Tejali Mian 2. Manjoor Mian, both sons of Butan Mian 3. Azad Mian, S/o Khaita Mian Grand, son of Butan Mian 4. Mohamad Mian 5. Usman Mian 6. Tahid Mian, all sons of Wazir Mian 7. Lalka Mian @ Mubarak Mian, son of late Rakib Mian, all residents of village- Bela Peto, P.O. &P.S.- Keredari, Dist.- Hazaribag ….. Defendants / Appellants 8. Sahjad Mian, S/o Khainta Mian, Grand son of Buttan Mian, resident of village- Bela Peto, P.O. & P.S.- Keredari, Dist.- Hazaribag ….. Respondents For the Appellants For the Respondents
Legal Reasoning
: Mr. Manjul Prasad, Sr. Adv. Mr. Arbind Kr. Sinha, Adv. Mr. Akhouri P. Sinha, Adv. Mr. Aniket Rohan, Adv. : None P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the learned senior counsel for the appellants but no one turns up on behalf of the respondents in spite of repeated calls, hence, the hearing of this appeal is taken up ex parte. 2. This Second Appeal under Section 100 of the Code of 1 SA No. 62 of 2013 Civil Procedure, 1908 has been preferred against the judgment and decree of affirmance passed by the learned District Judge-VI, at Hazaribag in Title Appeal No. 40 of 2011 dated 21.02.2013 whereby and where under , learned First Appellate Court has dismissed the appeal on contest but without cost. 3. The brief facts of the case is that the appellants herein in this Second appeal, being the plaintiffs filed the Partition suit no. 202 of 2006, with prayer for partition of the suit, claiming the half share of the same. The suit was decreed by the trial court, being the Sub-Judge, IV, Hazaribagh vide order dated 04.06.2011. The defendants being aggrieved by the judgment and decree passed by the trial court filed Title Appeal no. 40 of 2011. The same was dismissed by learned First Appellate Court being the District Judge, VI, Hazaribagh but the grievance of the plaintiffs is that in respect of the issued no. ‘IV’ which is to the effect that “whether there is unity of title and possession of the properties, between the parties?”, the learned First Appellate court has observed that though the suit is for partition between the descendants of Khusi Mian but the item no. ‘3’ of schedule A land of the plaint, which was also sought to be partitioned, was sold as 6.96Acres. Learned First Appellate Court considered that it is the admitted case of the plaintiff that the item no. ‘3’ of schedule A land, under Khata no. 3 of village Peto consisted of 10.44 Acres. The same as per the Exhibit 3/B, was recorded in the joint names of (i) Amir Mian (2) Ledu Mian, both sons of Budhan Mian, having one share in one hand and Khushi Mian and Rojan Mian, both sons of Late Manjhila Situ Mian, having two equal shares. So as per the plaintiff’s case, out of the 10.44 Acres of land, 2/3 rd i.e. 6.96 Acres of land was the share of both Khusi Mian and Rojan Mian. But even though, the descendants of 2 SA No. 62 of 2013 Rojan Mian were not impleaded as parties to the suit and the suit was only confined to the partition between the branches of Khusi Mian, who was having only 3.48 Acres of land, the trial court ought not have passed a decree for partition of entire 6.96Acres of land in the absence of the legal heirs of Rojan Mian who was the brother of Khushi Mian, both Khusi Mian and Rojan Mian being sons of late Manjhila Situ Mian. 4. At the time of admission of this appeal, following substantial question of law was formulated- “Whether the Appellate court was correct while deciding issue no. IV and reversing the findings of the Trial court in part to hold that Item no. 3 of Schedule A property did not constitute joint family property available for partition ?” 5. Learned senior counsel for the appellants submits that there is no such specific finding given by learned First Appellate Court that item no. ‘3’ of Schedule A property did not constitute joint family property but it has only observed that the trial court was not correct in holding that there is unity of title and possession of both the parties to the suit over the land of item no. ‘3’ of schedule A of the plaint having an area of 6.96 Acres of land, because they were having unity of title and possession only on half of the 6.96 Acres being 3.48 Acres but the other half being 3.48 Acres admittedly belonging to the brother of Khusi Mian namely Rojan Mian and his descendants, the same could not have been said to be the joint family property of the descendants of Khusi Mian. 6. Having heard the submissions made at the Bar and after going through the materials available in the record, this court do not find any illegality in the said finding of the Learned First Appellate Court. As there is no pleading of the plaintiffs that there has been any partition between Khusi Miyan and Rojan Mian and admittedly, the 3 SA No. 62 of 2013 descendants of Rojan Mian having not been arrayed as parties to the suit, certainly, in the absence of any information, as of which 3.48 Acres out of 6.96 Acres, described in item no. 3 of schedule A of the plaint, belongs to Khusi Mian, the observations and findings of the Learned First Appellate Court in dealing with issue no. ‘IV’ in para 11, of the impugned judgment, in the considered opinion of this court, is correct and the Learned First Appellate Court is correct in deciding the issue no. ‘IV’. Therefore, the sole substantial question of law is answered in the affirmative. 7. Accordingly, this second appeal being without any merit is dismissed but under the circumstances, without any costs. 8. Let a copy of this Judgment along with the Lower Court Records be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 11th September, 2024 Smita /AFR 4 SA No. 62 of 2013