Jharkhand High Court
Zakarias Hansda @ Jyoti Anthony vs Sanjay Bhagat on 1 May, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:13049
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 16 of 2025
Zakarias Hansda @ Jyoti Anthony, aged 83 years, Son of Chhedi Anthony,
residence of Village-Gotra Nawatoli, P.O.+P.S. Simdega, District-
Simdega ... Appellant
-Versus-
1. Sanjay Bhagat, S/o Late Gaura Bhagat.
2. Balram Bhagat, S/o Late Gaura Bhagat.
3. Bajrang Bhagat, S/o Late Gaura Bhagat.
4. Nira Devi, W/o Late Alakh Sharan.
5. Munia Devi, W/o Late Gauri Bhagat.
6. Sukanti Devi, W/o Late Rajesh Baraik.
7. Anupriya Baraik, D/o Late Rajesh Baraik (Minor) represented through
her mother Sukanti Devi (respondent no.6)
8. Sanjay Baraik, S/o Late Gauri Bhagat.
9. Geeta Kumari, D/o Late Gauri Bhagat.
10. Punam Kumari, D/o Late Gauri Bhagat.
11. Bijay Baraik, S/o Late Gauri Bhagat (Minor) represented through her
mother Munia Devi (respondent no.5)
12. Francis Kullu, S/o Late Johan Kullu, resident of Village-Kersai, Tongritoli,
P.O.-Kersai, P.S. Kurdeg, District-Simdega at present residing at Village
Gotra Samtoli, P.O.- Gotra, P.S.- Simdega, District- Simdega.
13. Deputy Commissioner Simdega, P.O.+P.S.- Simdega, District-Simdega.
... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mr. Shobhakar Mishra, Advocate
For the Respondents :
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06/01.05.2025 Heard Mr. Shobhakar Mishra, learned counsel for the appellant.
2. This second appeal has been preferred being dissatisfied with the
judgment and decree dated 06.08.2024 and 21.08.2024 respectively passed
by the learned Principal District Judge, Simdega in Civil Appeal No.15 of 2019,
whereby, he has been pleased to affirm the judgment and decree dated
30.11.2018 and 12.12.2018 respectively passed by the learned Sub-Judge,
Ist, Simdega passed in Original Suit No.07 of 2017.
3. Learned counsel for the appellant submits that the said title suit was
instituted by the appellant for right, title and interest, which was dismissed
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vide judgment dated 30.11.2018, against which, Civil Appeal No.15 of 2019
was preferred and the said civil appeal was further dismissed vide
judgment dated 06.08.2024. He further submits that both the learned courts
have wrongly decided the issue of res judicata against the appellant herein
and in view of that, there is law point involved in the present second
appeal and, as such, this second appeal may kindly be admitted on such law
points.
4. It transpires from the judgment of the learned trial court as well as the
first appellate court that the case of the appellant/plaintiff before the learned
courts was that the parties are by caste Chick Baraik, member of Schedule
Tribe governed by customary law in the matter of inheritance, Succession,
partition, adoption etc. The suit land is situated in village Gotra, P.S.+ District-
Simdega under Khata No. 34 total Plot 39 area 17.40 acres of land and suit
land situated in village Konmenjra P.S. T. Tangar, District Simdega under
Khewat No.10 Khata No.241, Plot No. 2886/2861/3556 and 2817 total area
4.55 acres and both the suit lands originally recorded in the name of Ghumru
Chick and Bhullu Chick both sons of late Ahlad Chick in Revisional Survey
record of right as Kaimi raiyati land particularly described in Schedule-A and
B of the plaint. The further case of the appellant/plaintiff was that the suit
land situated in village Gotra, P.S. Simdega District Simdega bearing Khata
No. 226, Plot No. 3427,3428,3533 total area 1.10 acres is the self-acquired
property of Bhullu Chick and the sons of Bhullu Chick sold two plots out of
the above three plots total area 1.03 acres bearing Plot No. 3427 measuring
area 0.56 acres and plot No. 3428 measuring area 0.47 acres and now only
0.07 acres of plot No. 3533 remains in Khata No. 226 more fully described in
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Schedule-C. The further case of the appellant/plaintiff was that the recorded
tenant namely Ghumru Chick and Bhullu Chick during their life time they held,
possessed, peacefully cultivated and enjoyed the suit property described in
Schedule-A as the rightful owner and thereafter Ghumru Chick died issueless,
then entire share of Ghumru Chick automatically got devolved on Bhullu Chick
who thereafter Bhullu Chick came in exclusive possession of the entire
property of the Schedule-A,B and C and thereafter Bhullu Chick Baraik died
leaving behind his three sons namely Chhedi Chick, Gaura Bhagat and Gauri
Bhagat. After death of their father Bhullu Chick they came in exclusive
possession of the land in question. Chhedi Chick son of Bhullu Chik had no
issue as such after approval of lawful consent from the family members
Chhedi Chick and his wife decided to adopt a son and in this regard a village
Panchayati was held in the village in presence of Mukhiya and other members
of the village Gotra and in presence of Panchayati Chhedi Chick and his wife
adopted the plaintiff as their legal son which was also duly consented by the
plaintiff as biological father and mother. All rites, rituals, and custom of
adoption were performed by Chhedi Chik and his wife Bhudan Baraik in the
year 1954 and after that adopted plaintiff become part and partial of adoptive
father and acquires legal status of son for the purpose of inheritance and
successor and also used to cultivate the land of Chhedi Chick and was in
peaceful possession over the same. After adoption, the plaintiff serves his
father and mother for rest of their life and when they died, plaintiff performed
all rites and rituals at the time of his adoptive father and mother. It was further
case that brother of Chhedi Chick namely Gaura Bhagat and Gauri Bhagat
peacefully cultivated and enjoyed the land in question and then Gaura Bhagat
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died leaving behind him his wife Etwari Devi (Defendant No. 6) and four sons
namely Shankar Bhagat, Sanjay Bhagat, Balram Bhagat and Bajrang Bhagat
and a daughter namely Nira Devi (defendant No.1,2,3,4 & 5) Gauri Bhagat
also died leaving behind his wife Munia Devi (defendant No.7) and three sons
namely Rajesh Baraik, Sanjay Baraik (defendant No.10) and Bijay Baraik
(defendant No.13) and two daughters namely Geeta Kumari (defendant
No.11) and Poonam Kumari (defendant No.12). One of the sons of Gauri
Bhagat namely Rajesh Baraik also died leaving behind his wife Sukanti Devi
(defendant No.8) and one daughter Anupriya Baraik (defendant No.9). After
death of recorded tenant plaintiff and defendants as the legal heirs and
successors are now in joint possession of the land in question. It was further
case that defendant No.3, 4, 5 & 6 filed the partition suit No. 8/05 before the
Sub Judge-I, Simdega and in the said partition suit they did not implead the
present plaintiff as a party in that case and has fraudulently obtained the
preliminary decree in the said partition suit no. 8/05 and when plaintiff came
to know about partition suit no. 8/05 dated 07.03.2015 then defendant tried
to sell and disposed of the share of the plaintiff and when plaintiff learnt that
a preliminary decree has been obtained by the defendant then he immediately
moved before the learned court of Sub Judge-I, Simdega and filed a petition
under Order I Rule 10 r/w section 151 of C.P.C. and prayed to implead him
as defendant in the partition suit no. 8/05 and Misc. Case No. 4/13 and further
prayed to grant a proper opportunity of hearing before final adjudication of
this case but the plaintiff prayer was rejected. It is also stated that in the
Partition Suit No. 08/05/ Misc. Case No. 04/13 final decree has been made on
19.05.17 there upon signed on 08.06.15 without impleading the plaintiff as
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party in the said proceeding therefore a judgment and decree is not biding
upon the present plaintiff. It was reiterated that plaintiff was adopted by
Chhedi Chik and his wife Bhudan Baraik with the consent and approval of the
family members and subsequently the deed of adoption was registered in the
year-1993 vide deed No. IV-1, Book IV Volume- 1, Page No. 01-04 dated
30.01.1993. It is settled principal of law that an adopted child shall be deemed
to be the child for their adoptive parents for all purpose with effect from the
date of adoption. The defendants are fraudulently trying to disposed of the
plaintiff including his share which cannot be permitted to do so in the eye of
law. After the death of recorded tenant and father of plaintiff and defendant
they jointly inherited and succeeded the suit property in joint but the
defendants were cunningly and fraudulently trying to side line the
plaintiff and by filing the partition suit No. 8/05 before the court of Sub Judge-
I, Simdega by not impleading the plaintiff as the party in this case and have
fraudulently obtained the preliminary decree in their favour. Further one of
the sons of recorded tenant namely Gauri Bhagat had earlier filed a
partition suit No. 8/98 but eventually the said partition suit got dismissed on
18.09.1998. There was never any partition of the suit land by metes and bond
either orally or documentary or through the process of the court in between
the plaintiff and defendant and the plaintiff no longer feels convenient to
remain joint and as such plaintiff requested the defendants for amicable
partition, although the defendant agreed for partition but they are avoiding
on one pretext to another and now it has come in the knowledge of the
plaintiff that defendants are trying to sell and disposed of the property
including the share of the plaintiff, hence it was necessitated to file the suit.
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The share of the plaintiff and defendants are 1/3 shares. It was further case
of the plaintiff that he is the member of schedule tribes and as such in view
of amendment made in Schedule Area Regulation Act, 1969 and order 1 Rule
3 of C.P.C. the Deputy Commissioner, Simdega had been impleaded as
defendant No. 15 as statutory party. The cause of action arose for the above
suit on various dates and finally on 07.03.2015 when defendants tried to sell
and disposed of the share of the plaintiff and when the plaintiff learnt that
defendants had filed the Partition Suit no. 1/05 before Sub Judge-I, Simdega
by not impleading him as a party in this case and has fraudulently obtained
judgment and preliminary decree on 31.08.2006 and final decree on
29.05.2017 signed on 08.06.2017 and the defendants with the help of land
brokers trying to disposed the suit land by side line the plaintiff. It was prayed
that a preliminary decree be passed for partition and separating of 1/3 share
of the plaintiff in the suit land detailed in schedule-A, B and C and thereafter
a survey knowing pleader commissioner be appointed to carve out the
separate takhta of the share of the plaintiff and cost of the suit may
be awarded and for any other relief/reliefs to which the plaintiff is found
entitled.
5. Defendant no.2 appeared in the suit and contested the suit. The
defendants claiming themselves to the legal heirs of Bhullu Chik and coming
from the family of Gaura Bhagat and Gauri Bhagat filed their W.S. in different
sets. Defendant Nos. 3, 5 & 6 filed the W.S. and the same was supported by
defendant Nos. 2, 4, 7, 8, 9, 10, 11, 12 & 14 by their W.S. During pendency
of the suit defendant No. 1 died and his name was deleted. The contesting
defendants in their W.S. challenging the suit on the ground of maintainability,
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limitation, adverse possession, ouster, waiver, acquiescence and estoppel has
raise the plea that there is no unity of title and possession for the lands of
suit with plaintiff as he does not come and below to the family of defendants.
Plea of res judicata has also been taken by pleading that there was a Partition
Suit No. 8/05 between the descendant of the recorded tenant and in the final
decree proceeding of that decree plaintiff had filed a petition under Order I
Rule 10 read with Section 151 of C.P.C. before the court of Sub Judge-I,
Simdega claiming himself to be an adopted son of Chhedi Chik and that Misc.
Case was rejected vide order dated 20.01.2016 and as such having binding
effect of that order the present suit for partition is barred by the principle of
res judicata. Further the plea has been taken that plaintiff had preferred Title
(Civil Appeal) No. 4/15 in the court of Principal District Judge, Simdega which
was also dismissed as withdrawn vide order dated 17.09.2015. This fact has
also been brought on record that against the order passed by D.C.L.R.,
Simdega in Mutation Appeal No. 01/01, Title Suit No. 04/2001 was filed by
the plaintiff in the court of Munsif Simdega but the same was also dismissed
by judgment and decree dated 07.03.2005 and surprisingly the same plea has
been raised in the suit and further on the ground of res judicata the suit is
fit to be dismissed. In the W.S., the claim of the plaintiff being the
adopted son of Chhedi Chik has strongly been denied specially on the grounds
that plaintiff is a tribe whereas heirs of the recorded tenant, the defendant
No. 2 to 14 are by caste Chik being Hindu Chhedi Chik, who are not entitled
any tribe as son by adoption and on that ground also prayer was made to
dismiss the suit.
6. The learned trial court has framed eight issues to decide the suit.
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Issue no.(iv) was with regard to whether the suit is barred by principle of res-
judicata? and while considering the said issue, the learned trial court has
found that the plea was taken by the defendants against the appellant/
plaintiff of the principle of res-judicata and the appellant/plaintiff had earlier
filed Title Suit No.04/2001 before the court of Munsif, Simdega and the
judgment passed in the said Title Suit No.04/2001 was marked as Ext.-E in
the case. The decree passed in the said Title Suit No.04/2001 is marked as
Ext.-E/a and Ext.-4 from the side of defendant. It was further found out that
Title Suit No.04/2001 was instituted by the plaintiff himself, namely, Zakarias
Hansda against Gauri Bhagat, who is the husband of defendant no.6 and
father of defendant nos. 9, 10 and 11 and Sanjay Bhagat and Shankar Bhagat,
who are defendants in the said suit are also sons of Gaura Bhagat and it is
further found out that Gauri Bhagat and Gaura Bhagat were brothers of
Chhedi Chick and in that suit, the plaintiff/appellant has brought the issue of
adoption which was decided by that court against the plaintiff. The learned
court has further found that till the date of the judgment, the
appellant/plaintiff had not brought any evidence before the court that he has
preferred any appeal against the judgment passed by the learned Munsif,
Simdega in Title Suit No.04/2001 and it was not challenged in the appeal and
it has attained finality and that has already been decided that Zakarias Hansda
claimed himself as adopted son of Jyoti Anthony, which was rejected by that
court. The learned trial court has further examined Exts.-A and B and has
found from the certified copy of judgment of Partition Suit No.08/2005 dated
31.08.2006 and certified copy of final decree of Partition Suit No.08/2005 that
one partition suit was filed by the sons of Late Gaura Bhagat, Bajrang Bhagat,
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Balram Bhagat, Etwari Devi, Nira Devi in which sons of Gaura Bhagat and
Gauri Bhagat and their successors were made defendants in that partition
proceeding, decree for partition was passed and against that decree, one Misc.
Case No.04/2013 was filed by the appellant/plaintiff- Zakarias Hansda @ Jyoti
Anthony under Order I Rule 10 read with Section 151 of the CPC praying
therein to grant his application and allot him 1/6 share in the suit land which
was rejected by the court of learned Senior Civil Judge-I, Simdega vide
judgment dated 20.01.2016, which was against the judgment of Partition Suit
No.08/2005 and Title Appeal No.04/2015 was preferred by the plaintiff,
which was dismissed as withdrawn vide order dated 17.09.2015. The learned
trial court has also found out that in the last 14 years, the appellant/
plaintiff has filed several suit, Misc. Case and appeal against the same
partition of their ancestors to claim their right on the basis of deed of
adoption, which was rejected by earlier courts. The learned court has further
found that repeatedly the same issue was raised before the earlier courts and
in the present suit also on the basis of Godpatra which appears to come
under the purview of res judicata and that issue was already decided against
the appellant/plaintiff in Title Suit No.04/2001. In view of that, the
learned trial court has decided the said issue no. iv against the
appellant/plaintiff and held that the suit was barred by the principle of res
judicata.
7. Aggrieved with that judgment, Civil Appeal No.15 of 2019 was
preferred by the appellant/plaintiff which was further dismissed vide
judgment dated 06.08.2024. The learned first appellate court has further
appreciated all the aspects including the evidences led by the parties i.e. oral
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and documentary evidence and further formulated the point to decide the
appeal at paragraph 9 of the judgment. Point no.(A) was with regard to prove
the appellant/plaintiff as valid adopted son of the recorded tenant Chhedi
Chick, point no.(B) was with regard to the principle of res judicata and point
no.(C) was with regard to the fact that whether the other issues have been
properly decided or not. The learned first appellate court has found that the
appellant/plaintiff has stated that he was adopted by Chhedi Chick as he has
got no issue and he has inherited the property of Chhedi Chick by way of such
adoption. To prove the case, the appellant/plaintiff has relied upon the
certified copy of Godpatra which was executed by Chhedi Anthony in his
favour on 30.01.1993 wherein the adoption made in the year 1954 was
mentioned. In the deed the caste of plaintiff is mentioned as Munda. In the
light of nature of document has found that it is not deed of adoption rather it
is a kind of memorandum of a story of alleged adoption in the year 1954. The
appellant/plaintiff has not shown himself as adopted rather he was shown in
the name of his father Late Emal Hansda caste Munda resident of Village-
Lamati P.S.-Dhurwadih, District-Sundagarh (Odisha) and at present of Village-
Gotra Nawatoli, P.S.- Simdega, District- Gumla. In view of that the learned
court has further found that it has been only created in the form of
memorandum for the alleged adoption in the year 1954 and the father's name
of the plaintiff is not disclosed as Chhedi Chick in the said adoption deed. The
learned first appellate court has further found that the appellant/plaintiff
himself has made coming to his biological parents at Simdega ever doubtful
vide his statement in para-49 which is contrary to the adoption in the year,
1954. The learned appellate court has further found that no exact date on
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which such adoption was performed is mentioned in the deed. No witness in
whose presence such adoption was performed has been examined as none
of the witness in their examination in chief has stated that in their presence
any such adoption was made by convening a panchayti in the village. The
learned first appellate court has also found that in fact there is no evidence
on behalf of the appellant/plaintiff to support the actual story of adoption in
the year, 1954 and only on the basis of memorandum of adoption executed
in their 1993, the claim of the appellant/plaintiff of being the adoptive son of
Chhedi Chick was made which was doubtful. The learned first appellate court
has further found that no person from the village has been examined on the
issue in question. The law with regard to the adoption has further been
discussed by the learned first appellate court and in view of that the point
has been decided against the appellant/plaintiff by the learned first appellate
court. The learned first appellate court has further appreciated as has been
discussed by the learned trial court with regard to Title Suti No. 04/2001 and
in view of that discussion made therein about the Exhibits, the learned court
has found that the point of res-judicata is against the appellant/plaintiff and
thereafter, decided the further points and has been pleased to dismiss the
appeal.
8. In view of the above facts, the Court finds that both the learned courts
are consistent on the issue on which this second appeal has been argued for
admission on the substantial question of law. There is no perversity in the
finding of both the learned courts and both the learned courts have given
concurrent finding. In view of that, no substantial question of law is involved
in the present second appeal. Further the High Court in not required to
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re-appreciate the facts due to the fact that the learned courts are consistent
on the facts and, as such, no case of admitting the present second appeal on
the substantial question of law is made out.
9. Accordingly, this second appeal is dismissed.
10. Pending I.A., if any, is disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ Simran/ A.F.R.
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