Jharkhand High Court
Jitan Singh Aged About 60 Years Son Of ... vs Abhi Singh Son Of Late Mukun Singh on 17 February, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 222 of 2018
Jitan Singh aged about 60 years son of Late Sarju Singh resident of
Village- Sadhoriya, P.O. + P.S.- Sarath, District- Deoghar.
...Plaintiff/Appellant/ Appellant
Versus
1. Abhi Singh son of Late Mukun Singh
2. Ajay Singh son of Late Mukun Singh
Both resident of village- Magho, P.O. + P.S.- Rajdhanwar,
District- Giridih.
3. Kusma Devi wife of Bhudeo Singh resident of Village - Upar
Bahiyar, P.O. + P.S.- Sarath, District- Deoghar.
4. Kunti Devi wife of Dhirendra Singh resident of Village- Tuktuko,
P.O. + P.S.- Bagodar, District- Giridih
5. Ali Devi wife of Shital Prasad Singh, resident of Village-
Bhaluwahi, P.O. + P.S.- Rajdhanwar, District- Giridih
6. Dwarika Singh son of Late Chandrika Singh
7. Nityanand Singh son of Late Chandrika Singh
6 and 7 resident of Village- Sadhoriya, P.O. + P.S.- Sarath,
District-Deoghar.
8. Pudina Devi wife of Late Mahesh Rai resident of Village-Bara
Kanodiya, P.O.+P.S.- Sarath, District-Deoghar
9. Bhola Rai son of Late Gopal Rai
10. Ishwar Rai son of Late Gopal Rai.
9 and 10 resident of Village- Jogdiha, P.O. + P.S. Jasidih, District-
Deoghar.
... Defendants/Respondents 1st Party/ Respondents 1st Party
11. Dhananjay Singh adopted son of Moti Singh @ Arun Singh resident
of village- Sadhoriya, P.O. + P.S. Sarath, District- Deoghar-
Defendants/Respondents 2nd Party/Respondents 2nd Party
12.Ajay Singh adopted son of Late Laljeet Singh.
13.Satish Singh son of Late Baleshwar Singh
12 and 13 resident of village- Sadhoriya, P.O. + P.S.- Sarath,
District- Deoghar.
14.Uttam Singh son of Late Mukteshwar Singh resident of Village-
Taljhari, P.O. + P.S.- Chitra, District- Deoghar
15.Bacchi Devi wife of Ajit Prasad Rai resident of Village-Birniya,
P.O.+P.S.- Chandan, District- Banka (Bihar).
16.Anima Devi wife of Umesh Prasad Rai resident of Village-Karuna,
P.O.+P.S.- Chandan, District- Banka (Bihar).
17. Mamta Devi wife of Pramod Kumar Rai resident of Village- Naya
Sakho, P.O. + P.S.- Deori, District- Giridih.
18.Asman Devi wife of Ashok Singh resident of Village- Kapsa,
P.O.+P.S.- Sarwan, District- Deoghar.
19.Sabo Devi daughter of Late Satrughan Singh resident of Village-
Sakho Bansdih, P.O. + P.S.- Deori, District- Giridih.
20.Chameli Devi wife of Kirtan Choudhary resident of Village-
Siriyan, P.O.+P.S.. Karown, District- Deoghar.
21.Shyam Rai son of Late Jagdish Prasad Rai resident of Village -
Kandiha, P.O.+P.S. Chandan, District- Banka(Bihar).
22.Rambha Devi daughter of Late Jagdish Rai resident of Village-
Kewal, P.O. + P.S.- Jamui, District- Jamui.
23.Dropadi Devi wife of Late Bibhuti Choudhary resident of Village-
Choudhary Nawadih, P.O. + P.S.- Palajori, District- Deoghar.
24.Shambhu Singh son of Late Satrughan Singh.
25. Jaideo Singh son of Late Satrughan Singh.
24 and 25 resident of Village - Sadhoriya, P.O. + P.S.- Sarath,
District- Deoghar.
... Defendants/Respondents 3rd Party/ Respondents 3rd Party
26.Yamuna Devi wife of Late Basuki Rai.
27.Pappu Rai @ Umashankar Rai son of Late Basuki Rai.
28.Bablu Rai @ Gorishankar Rai son of Late Basuki Rai.
All resident of Village - Sirsia, P.O. + P.S.- Jasidih, District-
Deoghar.
... ... Plaintiffs/Appellants/Performa Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mr. Arvind Kumar Choudhary, Advocate
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10/17.02.2025 The plaintiff is the appellant before this Court. There are
concurrent findings recorded by both the courts.
2. Title (Partition) Suit No. 189 of 2002 was filed by the plaintiff
seeking preliminary decree for partition of the suit lands and
properties to the extent of 1/4th be passed in favour of the plaintiff and
for appointment of Amin Commissioner for physical partition of the
suit land and for allotment of 1/4th share by passing a final decree. A
prayer was also made for actual delivery of possession and separate
allotment of 1/4th share and interest in the suit land through the
process of Court.
Argument of the appellant
3. The learned counsel for the appellant has submitted that the
appellant is only aggrieved by the allocation of 'Jesthansh' to the
eldest brother namely Soukhi Singh which was in relation to plot No.
31, Area 1.18 decimals.
4. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme court reported in AIR 1968 SC 1299 paragraph 6
and has submitted that it has been held that the concept of 'Jesthansh'
is now obsolete and un-enforceable.
5. The argument of the plaintiff-appellant is allocation of
'Jesthansh' to elder son in the family is illegal and therefore the
property was required to be divided by metes and bounds.
6. The learned counsel has submitted that this second appeal be
heard on the point as to whether 'Jesthansh' could have been allocated
to the elder brother namely Soukhi Singh which happened in the year
1940.
Findings of this court.
7. As per the case of the plaintiffs, all the parties to the suit were
descendants of Jamabandi raiyat namely Bijay Singh who had four
sons namely Soukhi Singh, Moti Singh, Saligram Singh and Nunu
Ram Singh and the plaintiffs were the descendants of Saligram Singh
and the defendant No. 1 was the descendant of Soukhi Singh (the
eldest son) and other defendants were the descendants of the other two
brothers namely Moti Singh and Nunu Ram Singh. The suit was filed
for a preliminary decree for partition of suit land and property to the
extent of 1/4th in favour of the plaintiffs and for appointment of Amin
Commissioner for actual partition and for allotment of 1/4 th share of
plaintiffs while passing a final decree and also for delivery of
possession and separate allotment of 1/4th share of the suit land. The
case of the plaintiff was that there was a partition amongst the joint
family in the year 1940 and all the descendants of the common
ancestor are owning the property as per the partition but there has
been no partition through metes and bounds. It has also been asserted
that in Civil Suit No. 39 of 1941 the entire property of the Khatiyani
raiyat was distributed during the lifetime of their mother but there has
been no partition by metes and bounds as per law. It has been asserted
that partition in 1940 was an immediate and temporary family
arrangement and after the death of mother there was a need to duly
partition the property amongst the descendants and in absence of
proper partition the descendants were always in conflict with each
other. The defendants refused to partition the property in the year
march, 2001 and consequently the suit was filed seeking 1/4 th share of
the property. It was further case that there were certain other joint
family properties in other places but the area of such properties being
small were not included in the suit property and the plaintiffs reserved
the right to get the said properties partitioned as and when required.
The schedule-I property of the plaint consisted of Jamabandi No. 46,
Mouza Sadhoria No. 149 in the District of Deoghar, consisting of
numerous plots. So far as schedule-II of the plaint is concerned, it was
in relation to Jamabandi No. 18, Mouza Jhunki No. 380 in the district
of Deoghar consisting of numerous plots.
8. Admittedly, the parties are governed by Mitakshara school of
Hindu law and the genealogy is not in dispute.
9. The defendant No. 1 opposed the suit observing that the
ancestral property was recorded in joint possession of four brothers
which was their ancestral property and there was a partition in the year
1940 and in terms of the partition the parties are enjoying their
respective share and are in possession and are also paying rent and
rent receipts are being issued with respect to their property separately.
The property does not remain joint property and therefore there is no
question of any partition. The details of the allotment in terms of
partition in the year 1940 was mentioned in the written statement. The
partition was also duly signed by all the parties. It was asserted that in
the said partition in Mouza Sadhoria, Dag No. 31 area 1.18 acre was
allotted by way of 'Jesthansh' to the eldest brother namely Soukhi
Singh and he was also given possession and after his death it is in
possession of his descendants. It was further case of the defendant that
on 28.06.1941 Moti Singh, Nunuram Singh and Sarju Singh
dispossessed Soukhi Singh from the property of 'Jesthansh' and
consequently Soukhi Singh filed Title Suit No. 39 of 1941 in the court
of Sub Divisional Officer, Deoghar and the same was allowed in his
favour against which Moti Singh filed appeal which was also
dismissed and ultimately Soukhi Singh was put in possession of
'Jesthansh' and since then the descendants of Saukhi Singh are in
possession of the property. It has also been asserted that Moti Singh
filed another Title Suit No. 38 of 1953 against Soukhi Singh, Saryu
Singh and Nunu Ram Singh in connection with property in Mouza
Sadhoria but the case was decided against Moti Singh and the partition
of the year 1940 was again acknowledged. It was also stated that as
per the partition in the year 1940, the property in relation to other
places were also partitioned and they were not included in the suit.
Each allottee was separately enjoying and dealing with the property. It
was also stated that the plaintiff Jitan Singh had also transferred some
of the property acquired through partition in the year 1940 which was
allotted to his father Sarju Singh and sold some property to a third
party namely Janardan Yadav and Nuruddin Mian and others and such
transferees were in possession of the property and were enjoying the
same. It was also asserted that the plaintiff Jitan Singh and his brother
Huro Singh had also entered into some kind of exchange of property
with third party in connection with the property involved in the
present case. It was asserted that the plaintiff Jitan Singh had also
executed Bugatbandha mortgage in connection with the property
allocated to him in Daag No. 77, Dhani Doyam, area 53 decimal and
the property in Mouza Jhunki was also given in Bhugatbandha
mortgage for 6 years to Safaruddin Mian who occupied the property
for six years. It was the specific case of the defendants that the due
share was allocated by virtue of the partition of the year 1940 and the
plaintiffs were enjoying their share and were dealing with the same
and have also developed their properties and therefore there was no
question of any further partition of the property.
10. The Trial Court framed the following issues: -
(i) Is the suit of the plaintiffs maintainable in its form?
(ii) Have the plaintiffs valid cause of action to sue?
(iii) Whether the property in suit has been previously partitioned
between the parties by metes and bounds?
(iv) Whether there is unity of title and possession of the parties over
the suit land as described in the foot of the plaint and whether the
plaintiffs are entitled to have 1/4th share in the suit property?
(v) To what other relief or reliefs are the plaintiffs entitled thereto?
11. The parties led evidence both oral and documentary. The
panchnama of the year 1940 was also exhibited which was in bangla
language but was translated into Hindi. The Trial Court considered the
issue nos. (iii) and (iv) being the most important issue vide paragraph
8 of the judgment and considered the materials on record to come to a
finding that the entire property was not subject matter of partition and
the plaintiffs had reserved their right to get the remaining properties
partitioned as and when deemed proper. The learned Court referred to
Exhibit-D and Exhibit-E to E/4 and held that there was a partition in
the year 1940 and the entire properties were distributed amongst all
the four brothers and who were enjoying their respective shares after
partition. The said document was duly signed by all the four brothers.
The learned Court also considered the various title suits amongst the
parties and the manner in which the parties have been dealing with the
properties and recorded the extract of judgment passed in Title Suit
No. 39 of 1941 wherein it was found that the plaintiff of the said title
suit, elder brother Soukhi Singh was held entitled to recover the
possession of plot no. 31 of village Sadhoria and the cost of suit which
was the property allocated to him as 'Jesthansh'. The learned Trial
Court also recorded that the appeal against the judgement passed in
Title Suit No. 39 of 1941 was also dismissed. Relevant extract of the
earlier judgement in Title Suit No. 39 of 1941 which was marked as
exhibit-1 has been quoted by the learned Trial Court as follows:-
"Para-5 - I have considered the evidence and I find
that the plaintiff's suit should be decreed. P.W. 1 is the mother
of the plaintiff and defendants 1 and 2. It is mentioned in the
deed of agreement, Exhibit-3, that the punches should consult
the mother and then partition the shares according to her
dictation. She has been examined in court and she stated that
it is a custom in the family That the eldest son would get some
land as jethans and that Soukhi was accordingly given the
land called Digri Dabar, plot no. 31. She also speaks of the
customs in her family, and says that her husband's elder
brother gave one mouza to his eldest brother as jethans. It was
argued that there is no mention of the giving of jethans in the
agreement. It is true. But it is mentioned therein that the
partition should take place according to the dictates of the
mother. Who speaks about the jethans..... The fact that the
defendants agreed to the giving of jethans to the plaintiff, is
apparent from the fact that they allowed the plaintiff to
cultivate the land for full one year. Having once agreed, the
defendant cannot go back upon the agreement after such a
long time. The whole point is that there was a private Batwara
by mutual agreement and plot no. 31 was given to the plaintiff
by the consent of all others; otherwise the defendants would
not have signed the Batwara list of the plaintiffs, Exhibit-1
which is admitted.
6. P.Ws 2 and 3 are some of the punches, who prove that the
plaintiff was given this plot at the instance of his mother and
with the consent of the defendants. They also prove that it is
customary in their villages to give jethans to the eldest sons.
7.....In short the defendants having once agreed to give plot
no. 31 to the plaintiffs as jethans and also having acted upon it
for about a year are stopped from reopening the question,
when it has been proved that there is a custom of giving
something more to the eldest son. The point that the
arbitrators, had no authority to give jethans is not true;
because the deed of agreement executed by all, authorized the
arbitrators to consult the mother and divide according to her
instructions and her evidence in court shows that she directed
the punches to give some land as jethans. I declare that the
plaintiff is entitled to recover the possession of plot no. 31 of
village Sadharia and cost of the suit."
The Trial Court also held that the suit for partition was not
maintainable.
12. The learned Trial Court considered the materials on record and
ultimately held that a portion of the joint family property being Plot
No. 31, area 1 acres 18 decimal was allocated to the eldest son namely
Soukhi Singh by way of 'Jesthansh' during the partition which had
taken place way back in the year 1940 and also considered the
evidence led by the mother who deposed in the earlier Title Suit that
there was custom of giving property to the eldest son by way of
'Jesthansh'. The learned Court also considered the fact that the
allocation of 'Jesthansh' to Soukhi Singh was also subject matter of
dispute in earlier suit which was ultimately decided in favour of
Soukhi Singh and such decision was binding on the parties. It was also
an admitted fact on record that after partition the respective parties
have enjoying their property and have been dealing with the same and
have their independent possession. With respect to the judgment
passed by the Hon'ble Supreme Court in AIR 1968 SC 1299 the
learned Trial Court observed that the same was in connection with
Hindu governed by Benaras School and in the present case, parties
were governed by Mitakshara School. Ultimately the learned Court by
referring to the earlier binding decision between the parties in title suit
in connection with the allocation of 'Jesthansh' to Soukhi Singh and
other attending circumstances held that the suit seeking partition was
not maintainable as there was already family partition about 72 years
back and the plaintiffs while not accepting the said partition of the
year 1940 had filed the suit for partial partition.
13. The Appellate Court also considered the materials and gave
concurrent findings while upholding the judgement and findings of the
Trial Court and has again considered the fact that the allocation of
'Jesthansh' was subject matter of consideration in Title Suit No. 39 of
1941 which was decided in favour of Soukhi Singh (the eldest son)
and appeal against the same was also dismissed.
14. Both the Courts appreciated the materials on record and gave
concurrent findings and cited reasons to dismiss the partition suit.
15. This court finds that the both the learned Courts have referred
to the earlier decision in the title suit between the parties which
specifically dealt with legality and validity of allocation of 'Jesthansh'
to the eldest son ,Soukhi Singh and recorded that the earlier litigation
attained finality and in the earlier suit the property covered by
'Jesthansh' was directed to be returned to Soukhi Singh who was the
plaintiff and filed the suit after he was disposed from the property
covered by 'Jesthansh' and in the suit Soukhi Singh was held entitled
to recovery of property of 'Jesthansh'. This court finds that in the
judgement reported in AIR 1968 SC 1299 (Siromani vs. Hemkumar)
it was held that the custom of Jethansi or 'Jesthbhagam' said to be
prevalent in the caste of Agharias was not proved and also held that
the doctrine of 'Jethansi' or 'Jesthbhagam' was now obsolete and
unenforceable.
16. This court finds that the said judgment does not apply to the
facts of this case in view of the discussions made by the learned
Courts wherein they have referred to the evidence of the mother who
had deposed in the earlier title suit about the existence of custom of
'Jesthansh'. The findings of the Title Suit 39 of 1941 was also quoted
where it was held that the plaintiff ('Jesthansh' -elder brother) proved
that it is customary in their villages to give 'Jesthansh' to the eldest
son and also held that plaintiff of the said case was given the plot as
'Jesthansh' at the instance of his mother and with the consent of the
defendants. In the present case, the plaintiffs were was not seeking to
enforce claim of 'Jesthansh' but were seeking to question the
allocation of 'Jesthansh' which was made way back in the partition of
year 1940 and was held to be valid in Title Suit 39 of 1941. It has also
come on record that in the year 1940 the entire property including the
properties of other mouza were also subject matter of partition and
were partitioned but the present suit was filed only for partial partition
by stating that the partition of the year 1940 was not properly done.
The plea of the appellant has been rejected by both the Courts by well-
reasoned judgments.
17. This court is of the considered view that no question of law,
much less any substantial question of law arises for consideration in
this case. Accordingly, this second appeal is dismissed.
(Anubha Rawat Choudhary, J.)
Binit
