Jharkhand High Court
Badri Narayan Pandey vs Ram Sagar Mahto on 1 February, 2023
1 Second Appeal No. 60 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 60 of 2012
1. Badri Narayan Pandey
2(a). Rakesh Kumar Pandey ... Appellants
-Versus-
1. Ram Sagar Mahto
2. Rajendra Mahto
3. Sudama Mahto
4. Girza Mahto
5. Deoraj Mhto,
6. Surajpati Devi,
7. Chandri Devi,
8. Rupkali Devi,
9. Rajkumar Mahto
10. Kamoda Kuer
11. Kalpatiya Kuer
12. Harihar Mahto
13. Kameshwar Mahto
14. Shyam Sundar Mahto
15. Dashrath Mahto
16. Nandu Mahto
17. Udai Mahto
18. Nandlal Mahto
19. Shambhu Mahto
20. Manoj Mahto
21. Ram Badan Mahto
22. Bigan Mahto
23. Shrimati Fulkeri Devi
24. Shrimati Fulmani Devi
25. Shrimati Rajali Devi
26. Hartishchandra Pandey
27. Smt. Tara Devi
28. Bishnu Kant Pandey
29. Rabikand Pandey
30. Gyanendra Pandey
31. Mahendra Pandey
32. Krishna Kumari Devi
33. Kanti Devi
34. Papu Pandey
35. Raju Pandey
36. Mahendra Pandey
37. Renu Kumari
38. Rewti Devi
39. Ram Raj Pandey
40. Most. Toliya Kuer
41. Satya Prakash Tiwari
42. Pappu Singh Tiwari
43. Lala Singh Tiwari
44. Kanti Devi
45. Most. Lilawati Kuer
2 Second Appeal No. 60 of 2012
46. Raj Kumar Pandey
47. Chandra Shekhar Pandey
48. Anil Pandey
49. Sarhul Pandey
50. Radha Shukla
51. Smt. Kavita Devi
52. Smt. Savita Devi
53. Smt. Meena Devi
54. Smt. Jayanta Devi
55. Dharnidhar Pandey
56. Umesh Kumar Pandey
57. Bhola Pandey
58. Kripa Nand Pandey
59. Bablu Pandey
60. Dablu Pandey
61. Ajay Pandey
62. Munna Pandey
63. Jamaluddin
64. Sk. Jakir Hussain
65. Sk. Salamuddin
66. Most. Kamuda bibi
67. Bibi Sakina
68. Sekh Subhan Ali
69. Jaisha Mian
70. Washi Ahmad
71. Arusha Bibi
72. Khatuja Bibi
73. Rajbhi Bibi
74. Aman Bibi
75. Mubhiya Bibi
76. Most. Rashul Bano
77. Amna Khatun
78. Jaybun Bibi
79. Khatun Bibi
80. Bibi Hulshan
81. Bibi Johra Bano
82. Sheikh Mohammad Ishmail
83. Sheikh Abdul Gaffoor
84. Sheikh Abdul Sakur
85. Nurul Hoda
86. Sohar Bano
87. Md. Ekbal
88. Ishrani Ahmad
89. Khalil Ahmad
90. Anjum Aara
91. Khurshida Khatun
92. Kutbuddin
93. Gayasuddin
94. Reyajuddin.
95. Rupesh Bibi
96. Rajmaniya
3 Second Appeal No. 60 of 2012
97. Nezamuddin
98. Keyamuddin
99.Bibi Batulan
100. Anand Kumar Pandey
101. Krishna Kumar Pandey
102. Most. Deokali Kuer
103. Asha Kumari
104. Pappi Kumari
105. Chandra Prabha Devi
106. Usha Devi
107. Udai Bhan Pandey
108. Ram Kishore Pandey
109. Sheomani Pandey
110. Feku Pandey
111. Surendra Pandey
112. Rohit Kumar Pandey
113. Rama Shankar Pandey
114. Inarbhan Devi
115. Indrapati Devi
116. Ugrasen Pandey
117. Cheetanand Pandey
118. Munni Devi
119. Chunchun Devi
120. Sri Loknath Pandey
121. Smt. Nar Nimasa Devi
122. Smt. Parwati Devi
123. Smt. Krishnapati Devi
124. Smt. Lalpati Devi ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants : Mr. Ayush Aditya, Advocate
For the Respondents :
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08/01.02.2023 Heard Mr. Ayush Aditya, learned counsel for the appellants.
2. This second appeal has been filed being aggrieved and dissatisfied
with the judgment dated 20.04.2012 and decree signed on 08.05.2012 by
the learned District Judge-II, Palamau at Daltonganj in Partition Appeal
No.34/2006, dismissing the appeal and thereby confirming the judgment
dated 31.08.2006 and decree signed on 21.09.2006 passed by the learned
Subordinate Judge-II, Palamau at Daltonganj in Partition Suit No.69 of
1973.
3. Partition Suit No.69 of 1973 was instituted by the
plaintiffs/respondents for partition between the parties, which was decreed
in favour of the plaintiffs vide order dated 31.08.2006 and against that
judgment, Partition Appeal No.34 of 2006 was filed by the
defendants/appellants, which was also dismissed vide judgment dated
20.04.2012 and the judgment passed by the learned trial court was
confirmed.
4. The case of the plaintiffs/respondents was that Pandey Jivrakhan Ram
and Nanhaku Ram had been allotted a separate Takhta of 1 Anna 4 Pai
share in a P.S. No.19/1916 by the court of the learned Subordinate Judge,
Palamau. The two brothers above mentioned were impleaded defendant
nos. 32 and 33 in the said P.S. having equal share, which was for partition
of land in respect of village Pandu, Jhagra, Sikiya, Basdiha Labar Pandu and
Gagankeri. It was also averred in the plaint that the plaintiff's father Late
Galuki Mahto purchased 2 Pai share in village Pandu, Basdiha, Jhagra and 4
Pai share in village Labar Pandu through a registered sale deed dated
26.01.1925 from Pandey Jivrakhan for a valuable consideration. It was also
averred that Saluki Mahto came in possession over the land, so purchased
by him and remained in possession in jointness till he was alive and on his
death, the plaintiffs have been carrying on in joint possession, with the
other defendants. It was further averred that parties of the suit have
already been disposed of the property of village Basdiha. Hence, the lands
of the village Basdiha have been left from the suit. after vesting of the
Zamindari interest in the State of Bihar, under the B.L.R. Act, the plaintiffs
and other set off the defendants have submitted return and K form
separately for the convenience, but the rent was fixed at random. The
plaintiffs and the defendants have been cultivating the land separately for
convenience, but, since there is no partition by metes and bounds, the
parties are feeling difficulties in improving the lands. The plaintiffs have
demanded partition amicably, but the defendants did not agree. Therefore,
the suit was filed. It was also averred in the plaint that the plaintiffs have
1/8th share in village Pandu and Jhugra and 1/4th share in village Labar
Pandu and cause of action in the suit has been shown to arose on different
dates.
5. The joint written statement was filed on behalf of defendant no.2 and
defendant no.10 on 18.04.1978 stating therein that the suit is not
maintainable and there was no valid cause of action for the suit. The
plaintiffs were not in possession over the suit land. There is no unity of title
and unity of possession. The suit is under valued and the valuation of the
suit property is not below Rs.50,000/- at the market rate. In the written
statement, it was also pleaded that the suit is barred by Sections 8 and 35
of Bihar Land Reforms Act, 1950. It was also averred that Sarad Chand
Sarkar has filed T.S. No.19/1916 before the Deputy Commissioner cum Spl.
Judge, Palamau against Prakash Chand Sarkar and others for partition of
suit land of village Labar Pandu, Sikiya, Jhagra, Mahugawa, Karandih and
Basdiha and partition decree was also passed. The plaintiff has wrongly
pleaded that their ancestors Saluki Mahto have obtained 2 Pai share in
Mauza Pandu, Basdiha and Jhagra and 4 Pai share in village Labar Pandu
through registered sale deed dated 26.01.1925. The execution of deed was
created with malafide intention. Saluki Mahto never came in possession over
the suit land. A petition was filed on behalf of the plaintiffs under Sections
5, 6 and 7 of Land Reforms Act, 1950 for assessment of rent, which was
dismissed. Besides this, rent was fixed in the name of defendants with
regard to suit land of vllage Pandu. On 01..08.1973 in C.W.J.C. No. 4/1973
(R) after hearing, the order of Additional Collector, Palamau was set aside
and suomoto case no. 41/1968-69 was restored. In the suomoto case, order
was passed on 11.5.1971 in favour of Ram Sander Pandey and he came in
possession. The plaintiffs and other defendants have no concern with the
suit land of village Pandu. It was further averred that in village Labar Pandu,
plot no. 338 and 312,which was in the possession of raiyat. Rest six plots
was fixed in the name of defendant no.2 and his possession was continued.
subsequently, a proceeding u/s 145 of Cr.P.C. was initiated in between
defendant no.2 and Jai Nath Pandey. On 11.5.1987, the order was passed in
favour of defendant no.2, which was in the knowledge of plaintiffs also.
Saluki Mahto or the legal heirs have never claimed regarding the disputed
land for 12 years and they became ousted.
6. Defendant no.2 and 2/A also filed written statement dated 12.02.2004
stating therein that Jivrakhan Ram Pandey had no right to sale the land to
Saluki Mahto without prior permission of his brother Nanhaku Pandey. Saluki
Mahto was required to file the suit within 12 years and Saluki Mahto never
came in possession over the suit land. Plot No.49B of village Pandu was
given orally to defendants Badri Narayan Pandey by ex landlord Ambika
Pandey and rent receipts was also given. But after vesting of Zamindari,
return was filed by the ex landlord and thereafter the rent was fixed against
the defendants. They have denied the prayer made in the suit.
7. Other defendants have also appeared and filed their written
statements and they have also denied the prayer made in the suit.
8. Mr. Ayush Aditya, learned counsel for the appellants submits that the
plaintiffs/respondents instituted the suit in the year 1973 claiming a relief
for partition on the basis of an alleged registered sale deed dated
26.01.1925 (Exhibit-2) whereby Jivarakhan Pandey allegedly sold a Milkiyat
(Zamindari) interest to the extent of 2 Pais share in village Pandu, Basdiha
and Jhagra and 4 Pais share in village Labar, a simple suit for partition was
at all maintainable, particularly when the defendants/appellants seriously
denied the right, title, interest and possession of the plaintiff interalia on the
ground that the plaintiffs' ancestor Saluki Mahto being a stranger, never
came in possession on the basis of Exhibit-2 dated 26.01.1925 and upon
vesting Zamindari under the Bihar Land Reforms Act, assessment of rent
was admittedly done in the name of the defendant and M-Roll (Exhibit-E)
was prepared in the name of Pandey Sundar Ram and attempt of the
plaintiffs to get rent fixed in their names, through suo moto case no.
41/1968-69 (Exhibit-7). On these grounds, he submits that this aspect of
the matter has not been appreciated by the learned trial court as well as the
appellate court. There are substantial questions of law, so far as
interpretation of the documents are concerned and in that view of the
matter, this second appeal may kindly be admitted.
9. The suit was instituted for partition, which was decreed vide
judgment dated 31.08.2006 by the learned trial court, whereby, 8 Pai part in
1/8 share of land of Jivarakhan Ram Pandey in Mouza Pandu and in Mouza
Laber Pandu 1/4 share was partitioned and decreed in favour of the
plaintiffs. The said judgment and decree was challenged in Partition Appeal
No.34 of 2006 which was dismissed by the learned appellate court and
being aggrieved with that judgment, this second appeal has been filed.
10. The learned trial court has framed the issues and appreciated the
evidences brought on record and thereafter passed the judgment. The
learned appellate court has also framed points and thereafter decided the
appeal. The learned appellate court has considered that that from the
judgment of the learned trial court, it transpires that two witnesses namely
Ram Lakhan Dubey and Deo Raj Mahto were examined and documentary
evidence adduced were marked as Ext.1 to Ext. 10/B. Defendant no.1 series
examined two witnesses D.W.1 Harish Chand Pandey and D.W.2 Md. Iliyas.
The documentary evidence adduced on behalf of the defendant no.1 series
were marked as Ext. A/1 to G/1 by the learned trial court. On behalf of
defendant no.2 series, five witnesses namely Ishwari Pandey, Kameshwar
Dubey, Haridwar Pandey, Rajendra Prasad Singh and Ramesh Prasad Singh
were examined.. The documents adduced were marked as Ext.A/1 to Ext.E.
On behalf of defendant nos. 10 to 10/C and 11 only one oral witness
Satyendra @ Sarhul Pandey was examined and no any document was
produced. On behalf of defendant no.39, defendant himself was examined
and document adduced was marked as Ext. A.A. to C/2. On behalf of
defendant nos. 19 to 37, only one witness Basir Ahmad was examined. The
documentary evidence i.e. sale deed adduced on behalf the defendants was
marked as Ext. A.A.A. On behalf of defendant nos. 40 to 43, three witnesses
namely Ram Kishore Pandey, Ramashraya Pandey and Madan Prasad were
examined on their behalf, documentary evidence adduced was certified copy
of the sale deed nos. 1512 and 661, where were marked as Ext. A.A.A.A.
and A.A.A.A./1. By considering all these materials, the learned appellate
court has found that there is no dispute, rather it is admitted that in P.S.
No.19/1916, Jivrakhan Ram Pandey and Nanhaku Pandey were full brothers
having 1 Anna 4 Pai share and Takhta was allotted to both of them having
each 8 Pai share. From perusal of Ext.2, it reveals that the same was
executed by Jivrakhan Ram Pandey to Saluki Mahto and there is description
that for the repayment of increasing debt, there was necessity that to
execute the sale deed. The learned appellate court has also found that the
executant or vendor had not challenged the sale deed. Ext.1 is the
Government rent receipt issued by the order of the Circle Officer in suo
moto case no.41/1968-69. Ext.3 series which are the notices issued under
public demand Act. Ext.5 is the certified copy of final decree of P.S.
No.19/1916 showing Takhta 1 Anna 4 Pai share allotted to Jivrakhan Ram
Pandey defendant no.32 and Nanhaku Pandey, defendant no.33.
Considering all these documents and evidences, the learned appellate court
has affirmed the judgment of the learned trial court. There are concurrent
findings of two courts. There is no perversity in the judgment of the courts.
No interference is required to be made in view of concurrent finding of two
fact finding courts. No question of law point is made out in this second
appeal.
11. Accordingly, this second appeal stands dismissed.
(Sanjay Kumar Dwivedi, J.)
Ajay/
