Jharkhand High Court
Shyam Sunder Saw vs Babu Nandan Sah on 27 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
S.A. No. 28 of 2025
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Shyam Sunder Saw, aged about 58 years, s/o Late Ram Awtar
Sah, R/o Holding No.E/406, "A" Block, Sonari, PO and PS -
Sonari, Town Jamshedpur, District - East Singhbhum,
Jharkhand .... Appellant
-- Versus --
1. Babu Nandan Sah, S/o Late Ram Awtar Sah, R/o R, Z-126 C2
Block, Gali No.4, Shivpuri near Nanda Block, Mahabir Enclave,
Shivpuri, PO and PS - Shivpuri, New Delhi, 110048
2. Kaishalya Devi, W/o Pasupati Goud, D/o Late Ram Awtar Sah,
R/o village - Tato, PO and PS - Karanjia, District - Mayurbhanj,
Odisha
3. M/s Tata Steel Limited, a company registered under Indian
Companies Act, having its office at 24, Homi Modi Street Fort,
Mumbai, and its local office situated at Bistupur, PO and PS -
Bistupur, Town Jamshedpur, District - East Singhbhum,
Jharkhand .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant :- Mr. Baibhaw Gahlaut, Advocate
For the Respondents :-
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06/27.03.2025 Heard learned counsel appearing for the appellant.
2. This Second Appeal has been preferred against the
judgment dated 22.07.2024 and decree signed on 02.08.2024
passed in Civil Appeal No.34 of 2022 by learned District Judge-IV,
East Singhbhum at Jamshedpur whereby he has been pleased to
dismiss the said appeal and affirmed the judgment dated
29.08.2022 and decree signed on 08.09.2022 passed in Original Suit
No.44 of 2017 by learned Civil Judge (Sr. Division)-IV, East
Singhbhum at Jamshedpur.
3. Mr. Baibhaw Gahlaut, learned counsel appearing for the
appellant/defendant submits that the suit was decreed holding that
the respondent/plaintiff is entitled to get one third share in the suit
property.
4. Learned counsel appearing for the appellant, for admission
of the second appeal, only point has argued that the entire property
was not the subject matter in the partition suit.
5. Respondents/plaintiffs instituted the Original Suit No.44 of
2017 for preliminary decree declaring for 1/3rd share of the plaintiff
over the suit property described in Schedule A and for appointment
of survey knowing Pleader Commissioner to demarcate 1/3rd share
of the plaintiff over the suit property and for final decree in terms of
report of the survey knowing pleader commissioner and cost of the
suit and the learned trial court appreciating the evidence oral as
well as the documentary and decided the said suit by judgment
dated 29th August, 2022 after framing of seven issues and decreed
the suit holding that the plaintiff is entitled to get one third share in
the suit property and aggrieved with that appellant/defendant
moved before the appellate court in Civil Appeal No.34 of 2022
which was dismissed by the judgment dated 22nd July, 2024
affirming the judgment of the learned Trial Court.
6. It transpires from the judgment of learned Courts that the
case of the plaintiff is that Ram Awtar, the father of plaintiff (Babu
Nandan Sah), defendant No.1 (Shyam Sunder Saw) & defendant
No. 2 (Kaishalya Debi), was an employee in Tata Steel Ltd.
(Proforma Def. No. 4) in Canteen Service having Ticket No. 144958
& Personal No. 27345. Proforma Def. No. 4 allotted land bearing
Holding No. E/406, A-Block, Sonari Area, Jamshedpur East, Area 30'
X 40' on monthly rent for residential purpose which was affirmed by
the proforma defendant by Letter No. LAND/CONV/2065 dt.
16.02.2009. Ram Awtar constructed a residential house (hereinafter
mentioned as suit house) on that land and started living with his
family members. Ram Awtar died on 08.12.1973 leaving behind his
widow Smt. Moti Devi, two sons Shyam Sundar Saw & Babu Nandan
Sah and one daughter Kaishalya Debi. Their mother Moti Devi also
died on 21.02.2000. The parties are Hindu and governed by Hindu
Succession Act. No partition of the suit house has taken place. The
plaintiff and defendant No. 1 & 2 are entitled for their 1/3rd share
each in suit house. Plaintiff requested defendant No.1 & 2 to file
proper joint application before Proforma defendant No. 4 for
mutation of name, but they were avoiding. Plaintiff requested
defendant No.1 & 2 to make partition, but they refined on
12.12.2016. The relief claimed for a preliminary decree of partition
in the suit house and allotment of 1/3rd share therein, thereafter a
Final Decree by appointment of a Survey knowing Pleader
Commissioner, cost of the suit and any other relief or reliefs to
which the plaintiff be found entitled.
SCHEDULE 'A'
A Residential House standing on land measuring an area 30 ft x 40
ft. bearing Holding No. E/406, A Block, Sonari, PO & PS- Sonari,
Jamshedpur, Distt. Singhbhum East, Jharkhand, bounded as
follows;-
North : E/405, house of Ramesh Kumar Sharma,
South : E/407, House of U. Roy,
East : Road,
West : Alley.
SCHEDULE 'B'
GENEALOGICAL TABLE
Ram Awtar (Died on 08.12.1973)
Moti Devi (Died on 21.02.2000)
Babu Nandan Sah Shyam Sunder Saw Kaishalya Devi
(Son) (Son) (Daughter)
(Plaintiff) (Principal Def.1) (Principal Def.2)
7. The case of the defendant is that after receiving summons,
all the three defendants appeared, but the proforma defendant No.
3 did not file any Written Statement on his behalf and vide order
dated 06.06.2018 he was debarred from filing W.S.
Defendant No.2 though has filed her separate Written Statement,
but she has admitted the entire case of the plaintiff.
Defendant No. 1 filed his separate Written Statement contesting
the suit on the ground that the suit is not maintainable in its
present form. The suit is barred by limitation, estoppel, waiver,
acquiescence and Specific Relief Act. The suit is bad for non-joinder
of necessary party. The State of Jharkhand being the owner of the
property was a necessary party to the suit. The description of suit
house is vague. It is further pleaded that the house was a
Khapraposh Kuchha construction and after death of father the
plaintiff has taken all his retirement money from his mother in lieu
of share in the suit holding saying that he would be settled in Delhi
and he has no interest in the dilapidated house. He left Jamshedpur
permanently in the year 1992 for Delhi. It is also pleaded that he
discussed with the plaintiff for pucca construction and modification
etc. upon which the plaintiff gave his consent to construct pucca
house and modify the dilapidated kuccha house but from his own
cost because he has no interest in the house. Hence, he has
modified bearing huge expense from his own pocket and started
living with his family without any objection from anyone. He is
regularly paying rent since 1993-1994 and is expending huge
money more or less twenty-five lakhs for maintenance, repairing,
modification, renovation, white washing etc. from his own pocket. It
is also pleaded that all the movable and immovable properties
situated at the native village Amlori, District Siwan, Bihar as well as
house situated at R, Z-126, Gali No.4, C2, C2 Block, Shivpuri, Near
Nanda Block, Mahabir Enclave, New Delhi-48 purchased from joint
fund of the deceased father might be partitioned. The plaintiff is
also liable for the liabilities. The plaintiff with ulterior motive and
dishonest intention only asking for partition in the suit house after
concealing all the real truth and without payment of all his liabilities.
He also concealed that all the ancestral and joint family properties,
movable & immovable situated at village Amlori, Bihar & Delhi are
still joint and the plaintiff is only asking partition of present holding
which is not a raiyati land but the actual Landlord is State of
Jharkhand and proforma defendant is a lessee who allotted the suit
land on monthly tenancy which cannot be partitioned. The plaintiff
has no valid cause of action for this suit.
8. The learned trial court appreciated the oral evidence of the
PW - 1, 2 and 3 as well as DW - 1 and 2 as well as the documentary
evidence. Issue No.5, 6 and 7 was with regard unity of title and
possession between the parties and with regard to the suit property
described in the schedule of the plaint and entitlement to get the
preliminary decree for partition, if so, to what extent and about the
relief. Appreciating all these facts, the learned Trial Court has found
that it is the admitted fact between the parties that the land area
measuring 30 ft. X 40 ft. bearing Holding no. E/406, A Block, Sonari,
PO and PS- Sonari, Jamshedpur, District-East Singhbhum was allotted
to the Ramawatar (Since deceased), father of the plaintiff and
defendant no. 1 & 2. It was also admitted that after allotment of the
said land Ram Awtar has constructed Khapraposh kacha construction.
It was also admitted that father Ramawtar died on 08.12.1973 and
mother Smt. Moti devi died on 21.02.2000 leaving behind plaintiff and
defendant No.1 & 2. The genealogical table which is described in
schedule B of the plaint was also admitted and in view of that the
admitted facts has already been proved. With regard to unity of title
and possession between the parties the learned trial Court has further
appreciated the allotment by the Tata Steel which was marked as
Exhibit 1, which was in favour of father namely Ram Awtar, which was
converted into sub-lease with effect from 01.01.1996 and the sub-
lease of the said holding still continues in the name of Sri Ram Awtar
(since deceased). It has been proved that the suit land was developed
by the father, however, defendant No.1 submitted that the plaintiff has
left khapraposh house in the year 1992 after taking all retirement
benefits of his father from his mother. After disinterest of plaintiff in
repairing, modification of khaparaposh construction house made by
him and he renovated the khaparposh house with his own money i.e.
more or less Rs.25 lacs with the consent of the plaintiff, but he has not
filed any document regarding expenditure of Rs.25 lacs in modification
of the said Khaparposh house. In view of that the learned Court has
found the unity of title and possession.
9. So far the entire property with regard to the said partition suit
is concerned, the Court has found that no document regarding the
joint property situated at Amlori and Delhi has been brought on the
record and in view of that the learned Court has not accepted the
contention of the defendants. In this way, the learned trial court has
decreed the suit property.
10. Learned First Appellate Court has further appreciated the oral
and documentary evidence and noted the fact about investment of 25
lacs with consent, however, no receipt of investment has been shown
and no document regading any joint property was brought on the
record that was also found by the learned first appellate court and the
learned first appellate court has further considered the certain case
law and thereafter he has been pleased to dismiss the said appeal by
the judgment dated 22.07.2024 and decree signed on 02.08.2024
11. In view of the above, the argument advanced by the learned
counsel appearing for the appellant with regard to substantial question
of law is not a law point to admit the second appeal. The High Court is
not required to re-appreciate the facts in the second appeal and the
second appeal can be admitted only on the substantial question of law.
No perversity has been shown in either of the judgments of learned
Trial Court or First Appellate Court. In view of that, this second appeal
is dismissed.
(Sanjay Kumar Dwivedi, J.)
Sangam/
