Jharkhand High Court
Bharati Mahatani vs Santosh Mahato on 7 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 187 of 2016
Bharati Mahatani... Appellant(s)
-Versus-
1. Santosh Mahato
2. Smt. Luthurmoni Mahatani
3. Babu Mahato
4. Smt. Parwati Mahatani
5. Smt. Rani Mahatani
6. Smt. Khandu Mahatani
7. Smt. Saheba Mahatani..... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the appellant(s): M/s Saibal Mitra and A.K. Mahto, Advocates.
For the respondent(s): None.
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08/07.07.2022: This appeal has been filed under Section 100 of the Code of Civil
Procedure by the appellant challenging the judgment dated 20.1.2016 and
decree dated 3.2.2016 passed in Title (Partition) Appeal No. 64/2012 by the
learned District Judge-II, Jamshedpur, whereby the appeal has been allowed
reversing the judgment dated 16.3.2012 and decree dated 26.3.2012 passed in
Title Suit No. 17/2005 by the Civil Judge (Sr. Division)-VII, East Singhbhum,
Jamshedpur.
2. Heard the learned counsel for the appellant under Order 41 Rule 11
of the Code of Civil Procedure.
3. Title Suit No. 17/2005 was registered at the instance of the plaintiff-
appellant praying therein for partition of the property of village Patamda being
Khata Nos. 158, 159, 160 & 161 and village- Lawa of Khata No. 130, 131, 132
and 213 total area 07.04 acres in several plots. It is the case of the plaintiff that
land of all Khatas, except Khata No. 213, are her ancestral property belongs to
Nandu. Nandu Mahto, who is the son of Nimai Mahto, inherited the land in
question. After the death of Nandu Mahto, all parties of the suit inherited the
property jointly and there being unity of title and possession, the lands need to be
partitioned. The land of Khata No. 213 are self acquired property of Nandu
Mahto, that also needs to be partitioned.
4. The defendants opposed the prayer on the ground that all legal heirs
of Khudi Ram Mahto and Nimai Mahto, who are necessary parties, have not
been made parties and the genealogical table was also opposed.
5. The trial court framed several issues including the issue of non-
joinder of necessary party and the issue as to whether there was unity of title and
possession. On the basis of evidence led, the trial court held that the land has
been recorded in R.S,. Khatiyan in the name of Nandu Mahto, son of Nimai
Mahto, thus the properties are joint, which needs to be partitioned and thereafter
passed the order for partition. Be it noted that the issue of non-joinder of
necessary party was not dealt with.
6. The appellate Court after going through the evidence has held that
Nimai Mahto had one son, namely Nandu Mahto and one daughter. The heirs of
the daughter of Nimai Mahto are alive and they are six in numbers, being one
son and five daughters. Dhiren Mahto is one of her sons. The Appellate Court
held that the heirs of the daughter of Nimari Mahto was not made party in the
partition suit, though they are coparceners. The appellate court thus allowed the
appeal holding that even if there is unity of title and possession, but the share of
the plaintiff cannot be carved out because of non-impleadment of the heir of
Nimai Mahto, through his daughter.
7. Challenging the judgment, counsel for the appellant submits that
since in the Khatiyan the land was recorded in the name of Nandu Mahto, all the
land should be deemed to be exclusive property of Nandu Mahto, thus the
daughter of Nimai Mahto and her heirs are neither necessary nor proper party in
the partition suit, which the appellate court failed to take into consideration.
8. From the appellate court Judgment, I find that the appellate court
relied upon paragraph 18 of the cross-examination of the plaintiff (P.W. 1). The
court noted that the said witness stated that Nimari Mahto died leaving behind
one son-Nandu Mahto and one daughter. Further the said daughter left behind
five daughters and one son, namely, Dhiren Mahto. It is not the case of the
plaintiff that the land which belongs to Nimari Mahto i.e. father of Nandu Mahto
was partitioned amongst Nandu Mahto and his sister. The plaintiff only stated
that Nandu Mahato inherited the property from his father-Nimai Mahto. When
there is no partition amongst the heirs of Nimai Mahto and admittedly Nimai
Mahto had a sister, her sister became co-parcener.
9. Admittedly, the heirs of the sister were not made parties. It is also
admitted case that the land initially was in the name of Nimai Mahto. Nandu
Mahto is claiming exclusive title over the property on the basis of some recording
in the record of right. The heirs of Nandu Mahto wanted to take advantage of the
said recording and they also wanted to oust the sister of Nandu Mahto and her
heirs from inheritance by filing the instant partition suit. The appellate court thus
correctly held that in absence of the heirs of the daughter of Nimai Mahto, the
share of the plaintiff cannot be carved out.
10. Thus, I find that no illegality in the impugned appellate judgment.
Further I find that no substantial question of law involved in this case.
Accordingly, this appeal is dismissed.
Anu/-C.P.2. (ANANDA SEN, J.)
