Kinu Rana vs Most Piyasawa Devi
2023 Latest Caselaw 398 Jhar

                                         1               Second Appeal No. 24 of 2010


            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Second Appeal No. 24 of 2010

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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

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Appellants          :- Mr. Bhaiya Vishwajit Kumar , Advocate
       For the Respondents         :- --
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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

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

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

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

"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/