Jharkhand High Court
Abhay Singh And Others vs Ajoy Jaisawal And Others on 2 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 190 of 2022
Abhay Singh and others ... ... Appellants
Versus
Ajoy Jaisawal and others ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Amar Kumar Sinha, Advocate
Mr. Abhishek Kumar Dubey, Advocate
For the Respondents : Mr. Atanu Banerjee, Advocate
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14/02.09.2025
The learned counsel for the appellants has submitted that the
dispute relates to khata no. 20, plot no. 259 which had total area of 64
decimals and it originally belonged to Jagganath Napit. He has stated
that the following sale deeds were executed by Jagannath Napit: -
(i) 11 decimals to Baidyanath Mandal vide sale deed No. 6064
dated 28.12.1971
(ii) 9 decimals to R.C. Sharma vide sale deed No. 3315 dated
11.05.1971
(iii) 9 decimals to Gunadhar Ghosh vide sale deed no. 165
dated 09.01.1973
2. After the death of Jagannath Napit, his son, namely, Gopal
Napit executed the following sale deeds: -
(i) 7 decimals to R. K. Singh vide sale deed No. 4415 dated
24.07.1973
(ii) 5 decimals to Darshan Singh vide sale deed no. 3892 dated
22.04.1974
(iii) 6 decimals to Ashwini Ghosh vide sale deed no. 8918 dated
10.09.1974
(iv) 13 decimals to Gunadhar Ghosh vide sale deed no. 132
dated 31.05.1975
(v) 2 decimals to R. C. Sharma vide sale deed no. 5039 dated
31.05.1975.
3. Thus, Jagannath Napit sold 29 decimals of land during his
lifetime and Gopal Napit sold 33 decimals, total being 62 decimals out
of 64 decimals.
4. The learned counsel for the appellants has submitted that the
entire 9 decimals of land, which was sold by Jagannath Napit to
Gunadhar Ghosh vide sale deed no. 165 dated 09.01.1973, was sold to
the mother of the plaintiffs, namely, Sarswati Devi vide sale deed no.
4080 dated 10.11.1982, which is mentioned in Schedule-A of the
plaint.
5. The learned counsel has also referred to Schedule-B of the
property, which is the disputed property involved in this case and has
submitted that schedule B property is a part of Schedule-A. The
description of the property in Schedule-B reveals that the dispute is in
connection with north-south measuring 66ft x 17ft and in some part
15ft, consisting of a well on the northern side and used as angan and
open garden in portion of plot no. 259, khata no. 20. The boundary has
also been provided in Schedule-B; North is Prabhu Patel, South is
Bihar Sarkar now Jharkhand Sarkar, East is defendant, West is
plaintiffs' building and remaining part of purchase land. He submits
that in connection with Schedule-B property, there was a proceeding
under Section 144 of Cr.P.C. and ultimately the suit was filed to
dissolve the dispute.
6. Learned counsel for the appellants has submitted that the
original defendant namely, Mohan Jaiswal had claimed that he had
purchased 6.5 decimals of land from Gunadhar Ghosh vide sale deed
no. 1480 dated 09.03.1976 (exhibit-B). Further, he claimed to have
purchased 7.5 decimals of land vide sale deed no. 2813 dated
06.06.1992 (exhibit-B/1) from Gopal Napit and again, claimed to have
purchased 6 decimals of land vide sale deed no. 3388 dated
26.11.1994 (exhibit-B/2) from Ashwani Ghosh [who had purchased
the said land from Gopal Napit] vide sale deed dated 10.09.1974. The
sale -deed dated 10.09.1974 has not been exhibited.
7. During the course of argument, it also transpired that the
plaintiffs have exhibited the sale-deed in connection with schedule-A
property in the name of their mother as exhibit-2. No other sale-deed
has been exhibited by the plaintiffs including the sale-deed no. 164
dated 09.01.1973 through which the land is said to have been sold by
Jagannath Napit in favour of Gunadhar Ghosh [ the vendor of the
mother of the plaintiffs]. However, the sale-deed no. 164 dated
09.01.1973 has been mentioned in the sale-deed exhibited as exhibit-
2.
8. Learned counsel for the respondents does not dispute that the
total area of the land in plot No. 259 was 64 decimals. However, he
has submitted that the specific case of the plaintiff was that the
Schedule-B is the part of Schedule-A property, but no evidence was
led to prove this aspect of the matter. He has referred to paragraph
14,15 and 17 of the plaint and paragraph 11 of the written statement to
submit that it was never admitted by the defendant that schedule-B
was part of schedule-A property. He has also submitted that it was the
specific case of the defendant that the land covered under the sale
deed dated 10.11.1982 executed in favour of the mother of the
plaintiffs was only 6½ decimal which she was already in possession
and the land was not to the extent of 9 decimal. He has also submitted
that the vendor of the mother of the plaintiff had also acquired only 6
decimals of land and not 9 decimals of land. The learned counsel has
submitted that the sale deed of the vendor of the plaintiffs was not
exhibited before the court to ascertain as to how much property was
purchased by Gunadhar Ghosh [vendor of the mother of the plaintiffs]
in the year 1970.
9. The learned counsel submits that the plaintiff has sought a
declaration that the suit land is the purchased land of the plaintiff's
mother and the plaintiff has got right, title and interest over the same.
The suit land was referable to schedule-B of the plaint. The learned
counsel submits that it was for the plaintiff to demonstrate that
schedule-B was the part of schedule-A property which the plaintiffs
have failed to demonstrate. He has also submitted that the plaintiffs
having failed to demonstrate that schedule-B was part of schedule-A
property, the suit was rightly dismissed.
10. The learned counsel for the respondents has referred to
paragraph 28 of the Trial Court's judgment and has submitted that it
was the specific case of the plaintiff that 62 decimals out of 64
decimal was already sold but they have failed to prove. He submits
that this was foundational fact to challenge the sale deed involved in
this case which was challenged in the suit. The learned counsel
submits that in the written statement it is not an admitted fact that 62
decimals out of 64 decimals was sold as claimed by the plaintiff. He
has submitted that the sale deed by which 62 decimals was said to
have been sold were not exhibited before the court and therefore this
fact was not proved.
11. With respect to the 1st substantial question of law framed by
this court vide order dated 06.02.2025, the learned counsel for the
respondents has submitted that though the sale deed exhibit-2
executed in favour of the mother of the plaintiffs was admitted but
there was a dispute that the same was not in connection with 9 decimal
of land but it was only in connection with 6 ½ decimal of land which
was the area which was handed over pursuant to the sale deed. He
submits that the said admission by the defendants with regard to
execution of sale deed qualified by the fact that the it was only in
connection with 6 ½ decimal of land and not 9 decimal does not help
the plaintiffs in any manner as the plaintiffs have failed to prove that
schedule-B is part of schedule-A property.
12. The learned counsel for the respondents while referring to the
2nd substantial question of law has submitted that the learned trial
court has recorded a finding at internal page-13 that the execution of
sale deed in the name of mother of the plaintiff in the year 1982 was
not challenged by the defendants but the area mentioned in the sale
deed was under challenge. He submits that the sale deed (exhibit-2) of
9 decimal read with the rent receipts and mutation orders certainly
prove that the plaintiffs' mother had purchased 9 decimal of land and
got the same mutated, but this does not help the appellants in any
manner in as much as they have failed to prove that schedule-B of the
property was a part of schedule-A property. He submits that the suit
property was only schedule-B property and not schedule-A property
and therefore even if 2nd substantial question of law is answered in
favour of the appellants, the same has no bearing in this case.
13. The learned counsel has referred to the judgment passed by the
Hon'ble Supreme Court reported in (2017) 9 SCC 586 (Adiveppa and
others versus Bhimappa and another) para 15 and 16, to submit that
unless a finding of fact though concurrent are found to be extremely
perverse so as to affect the judicial conscience of a Judge, they would
be binding on the appellate court. He has also submitted that initial
burden is always on the plaintiffs to prove his case through proper
pleadings and adequate evidence both oral and documentary in
support thereof. He submits that though the aforesaid judgement was
arising of a partition suit, but the principles of law would apply in the
present case also.
14. The learned counsel for the respondents has relied upon another
judgment passed by the Hon'ble Supreme Court reported in (2004) 7
SCC 708 (Sayed Muhammed Mashur Kunhi Koya Thangal versus
Badagarajumayath Palli Dhars Committee and Others) paragraph 8,
to submit that any statement made in the written statement cannot be
used unless it is duly proved. He has submitted that in the written
statement certain averments have been made in the present case but
the same has not been proved and therefore those statements are of no
consequence in the matter of deciding substantial questions of law
involved in this case. However, upon perusal of paragraph 8 of the
said judgement, it appears that it was observed that the written
statement filed by Waqf Board could not bind the defendant no. 2 and
in order to bind defendant no. 2, the statement made in the written
statement by the Waqf Board was required to be established on the
basis of evidence.
Rejoinder argument of the appellants
15. In response, the learned counsel for the appellants has referred
to the evidence of P.W. 5 who is the plaintiff of the case and
submitted that P.W. 5 has clearly stated that Schedule-B is a part of
Schedule-A property and during his cross examination in paragraph 39
has stated that it is not correct to say that the disputed land is not the
part of the property purchased by his mother. He has also referred to
paragraph 18 of the plaint.
16. Arguments concluded.
17. Post this case for dictation of judgment day after tomorrow i.e.
04.09.2025.
(Anubha Rawat Choudhary, J.)
Binit
