Jharkhand High Court
Anita Mahatain vs Malti Devi on 7 October, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:30949
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 992 of 2024
Anita Mahatain, Aged about 42 Years, D/o Late Labohari Mahato @Lalhahari
Mahato @ Lobia Mahto and wife of Parimal Mahato, resident of village Parashi,
P.O. Harirakha.P.S- Bindapathar, District Jamtara.
..... .... Petitioner
Versus
1. Malti Devi, W/o Late Sridhar Mahato, resident of Village Danr (Patanpur),
P.O. Mohnabank, P.S. Bindapathar, District Jamtara
2. Ramesh Mahato, S/o Premananda Mahato
3. Premananda Mahato, S/o Late Tribhanga Mahato,
2 & 3. are resident of village Patharjuria, P.O. Mohanabank P.S. Bindapathar,
District Jamtara.
4. Madan Mahato,
5. Santosh Mahato,
4 & 5 both sons of Late Sridhar Mahto, r/o village Patanpur, P.O.
Mohanabank, P.S. Bindapathar, District Jamtara
6A. Jiyamani Mahatain, Widow of - Late Arun Mahato
6B. Dinesh Mahato, S/o Late Arun Mahato
6C. Minor Tupubala Dasi, D/o Late Arun Mahato, Minor aged about 7 years. to
be represented through her natural mother Jiyamani Mahatian
All are R/o Village Kalu Pahari, P.O. Mohanabank, P.S. Bindapathar, District-
Jamtara
7A. Sugamani Mahatain, Widow of- Late Chigu Mahato.
7B. Murli Mahato, S/o- Late Chigu Mahato.
7C. Santari Mahatain, D/o- Late Chigu Mahato,
All R/o- Village Kalu Pahari, P.O- Mohanabank, P.S- Bindapathar, District-
Jamtara
8. Chapubala Mahatain, alleged wife of Late Lakhinarayan @ Gurupada
Mahato @ Gudukesh Mahato,
9. Lilu Mahato, alleged adopted son of Gudu @ Gurupada Mahato and natural
son of Bagambar Mahato, both 8 and 9 are of village Baghmara, P.O.
Mohnabank, P.S. Bindapathar, District Jamtara.
10. Geeta Debi, D/o Late Sridhar Mahato and wife of Baghambar Mahato,
resident of village Danr, P.O. Mohnabank, P.S. Bindapathar, District Jamtara.
11. Satubala Mahatain, claiming as adopted daughter of Bholanath Mahato,
resident of village Namujalai, P.O. Harirakha, P.S. Bindapathar, District
Jamtara.
12. Ujjwal Mahato, S/o Late Haru Mahato,
13A. Ujjal Mahato, S/o Haru Mahato & Sundari Mahatain
12 & 13A are the resident of village Bagmara (Patanpur), P.O. Mohnabank, P.S.
Bindapathar, District Jamtara
14. Gunadhar Mahato,
15. Bhupati Mahato,
16. Gyani Mahato,
17. Pravakar Mahato, 14 to 17 all sons of Late Sridhar Mahato, resident of
village Jalai, P.O. Harirakha, P.S. Bindapathar, District Jamtara.
... .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
2025:JHHC:30949
For the Petitioner : Mr. Ashutosh Pd. Joshi, Advocate
Mr. Ram Prawesh Prajapati, Advocate
For the O.P. Nos. 1-5 & 14-16 : Mr. Kaushal Kishor Mishra, Advocate
For the O.P. No. 12 : Mr. P.K. Paul, Advocate
Mr. Avishek Chandra, Advocate1`
------
Order No. 11 / Dated : 07.10.2025.
1. Petitioner is defendant no. 4 in Original Suit No. 12 of 2005 which was filed
for partition. The suit was decreed and the judgment and decree of partition
attained finality.
2. Petitioner filed a petition dated 16.11.2022 in the partition suit for amendment
in the preliminary decree in which the share of the petitioner has not been
carved out. The said petition on being rejected the instant civil miscellaneous
petition has been filed assailing the order.
3. It is argued by the learned counsel on behalf of the petitioner that Nepu
Mahato had three sons namely Sanatan Mahato, Kista Mahato and Bistu
Mahato. Kista Mahato had three sons and a daughter, and the present
petitioner is the adopted daughter of one of the sons namely Labahari @ Labai
Mahato. This fact has come in para 30 and 33 of the judgment passed by the
learned trial Court. The deed of adoption was exhibited and marked as
Exhibit-A. On the basis of this document the petition for carving out share
was filed which has been rejected. Reliance is placed on A. Krishna Shenoy
Vs. Ganga Devi G. & Ors. in Special Leave to Appeal (C) No(s).
8080/2019, wherein it has been held that more than one preliminary decree
can be drawn in partition suits.
4. Learned counsel on behalf of the opposite parties has opposed the petition for
amendment in preliminary decree, but has failed to dispute the factual
assertions made on behalf of the petitioner.
5. Two undisputed facts emerge from the judgment of the Trial Court in Original
Suit No. 12 of 2005, wherein petitioner was impleaded as defendant no. 4.
First the petitioner was the adopted daughter of Labahari @ Labai Mahato,
who was a coparcener in the joint family and secondly, she has not been
apportioned share in the preliminary decree. Being a class I heir she was
entitled to the share of her father as per Section 6 of the Hindu Succession
Act,1956.
6. Facts of the authority relied upon by the Petitioner is factually different and
therefore will not apply in the present case.
2025:JHHC:30949
7. Section 2(2) CPC defines "decree" as the formal expression of an
adjudication which conclusively determines the rights of parties. Section 96
CPC gives the right of appeal from every decree. Section 33 CPC says that
after the case is heard, the court shall pronounce judgment and on such
judgment a decree shall follow. Order 20 Rule 6 CPC requires that the decree
shall agree with the judgment. An appeal lies from the decree, not from the
judgment, but the judgment furnishes the grounds for the decree. The appeal,
though directed against the decree, necessarily involves examination of the
judgment. Preliminary decree is appealable, but if not appealed from, it
becomes final and cannot be questioned in an appeal from the final decree.
8. In the present the judgment and preliminary decree was assailed in Civil
Appeal No.22 of 2016, which has been dismissed on merit. If the Petitioner
was aggrieved by the dismissal, the proper course was to file a second appeal
and not a writ petition invoking the jurisdiction of this court under Article 227
of the Constitution of India.
9. Under the circumstance the civil miscellaneous petition is dismissed with
liberty to prefer second appeal against the judgment passed in first appeal.
Pending I.As., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
07.10.2025
Pawan/ -
