Jharkhand High Court
Ramsewak Sah vs Gopeshwar Sah on 9 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 118 of 2010
1. Ramsewak Sah, son of late Sudarshan Sah
2. Usha Devi, wife of Bhola Bhagat, daughter of Dhaneshwar Sah
Both residents of Mohalpahari, P.O. and P.S. Sikaripara, District-
Dumka ... ... Defendants/Appellants/Appellants
Versus
1. Gopeshwar Sah, son of late Uditnarayan Sah, resident of village
Golbandha (Dundiha), P.O. and P.S. Masalia, District-Dumka
... ... Plaintiff/Respondent First Part/Respondent
2. Bindamati Devi, w/o late Dhaneshwar Sah, Village Golbandha
(Dhundhia) P.O. and P.S. Masalia, Dist. Dumka (original
respondent no. 2- Dhaneshwar Sah was substituted vide order
dated 07.07.2015 by present respondent no.2 and other legal
heirs who are already on record)
3. Ram Lakhan Sah
4. Ramjee Sah
5. Ramnath Sah
6. Ramdesh Sah
7. Anirudh Sah
8. Krishna Prasad Sah
9. Deoki Sah
10.Praduman Sah
11.Om Prakash Sah
12.Anant Lal Sah
No. 3 to 12 sons of Dhaneshwar Sah
13. Matjhari Devi, wife of Late Dharamdeo Sah, and daughter of
Uditnarayan Sah
No. 2 to 12 residents of village Golbandha (Dundhia), P.O. and
P.S. Masalia, District-Dumka
No. 4 to 9 at present residing at Curuchak, Reghunathganj (Dumka
Dudhan, Bhagalpur Road), P.O. and P.S. Dumka, District Dumka
No. 13 at present residing at Lakhanpur, P.O. P.S. Jama, District
Dumka
Respondent no. 9 is presently posted at Agartalla, P.S. Agartalla,
District-Agartalla, State-Tripura
...Defendants/Respondents Second parties/Respondents
14. Raj Kishore Sah, son of Late Sudarshan Sah, resident of
Mohulpahari, P.O. and P.S. Sikaripara, District-Dumka
15.Gangia Devi, wife of Ramnath Sah, resident of Gidhanipahari,
P.O. and P.S.-Dumka (T), District-Dumka
16.Kalabati Devi, wife of late Jagarnath Sah, resident of mohalla-
Karharbil, P.O. and P.S. Dumka (T), District-Dumka
Defendants/Respondents Third Parties/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Rajeev Ranjan Tiwari, Advocate
For the Respondent No.1 : Mr. Lukesh Kumar, Advocate
: Md. Faiyaj Alam, Advocate
---
C.A.V. on 18.07.2025 Pronounced on 09.09.2025
This appeal has been filed against the judgment and decree
dated 10.06.2010 (decree signed on 19.06.2010) passed by the District
Judge, Dumka whereby the Title (Partition) Appeal No.05 of 2008
filed by the defendants has been dismissed and the judgment and
decree dated 20.12.2006 (decree signed on 06.01.2007) passed by the
learned Sub-Judge-I, Dumka in Title (Partition) Suit No. 05 of 2003
has been confirmed.
2. The partition suit was filed in connection with the self-acquired
property of defendant no.1. Some of the defendants including
defendant no.1 filed their written statement but they ultimately did not
participate in the suit proceedings. The learned trial court decreed the
suit and granted 5/12th share to the plaintiff. The daughter of the
defendant no.1 was not a party in the suit, filed the 1st appeal along
with the defendant no.13. The 1st appeal was filed alleging non-joinder
of necessary party by the daughter of defendant no.1 and on account
of improper service of notice with respect to defendant no.13 and also
on the merits of the appeal challenging misconstruction/non-
consideration of certain documentary evidence placed on record
before the trial court. The learned 1st appellate court dismissed the
appeal by holding that the daughter of defendant no.1 was claiming
that the suit property was the self-acquired property of defendant no.1
but the defendant no.1 did not file any appeal and with respect to co-
appellant-defendant no. 13, it was observed that the notice was duly
served, but he choose not to participate in the trial.
3. It has been submitted by the learned counsel for the appellants
that the suit was decreed without entering into the core of dispute as to
whether there was any nucleus of fund of the joint family with respect
to the purchase of the suit property involved in this case. It has been
submitted that the daughter of defendant no.1 was a necessary party in
the proceeding; the defendant no.1 had 10 sons and one daughter and
in case the suit property was self-acquired property of defendant no.1,
she would have got the share of 1/11th suit property upon death of
defendant no.1 and otherwise she would be entitled only to 1/11 th of
5/12th of property. The learned counsel submits that the property
having been declared as joint family property by the trial court and
was subjected to partition, the daughter of defendant no.1 was
certainly a necessary party.
4. The learned counsel for the respondent no.1 has appeared and
assisted this Court as the records have already been called for from the
concerned court. He has submitted that the defendants did not contest
the suit and earlier there was partition. He has assisted this Court in
going through the impugned judgements and has submitted that on the
basis of appreciations of materials on record, the learned trial court
came to a finding that the suit property was purchased from the joint
family fund. The learned counsel has also submitted that the appeal
was filed on limited point of non-joinder of necessary party and with
regard to non-service of notice upon defendant no.13, and therefore,
only those points were primarily considered by the learned 1 st
appellate court. He has also submitted that if the suit property was
self-acquired of defendant no.1, then there is no question of any share
of the daughter of defendant no.1 during the lifetime of the defendant
no.1 who did not file any appeal from the trial court's judgement. He
has further submitted that the daughter of defendant no.1, as per her
claim, would at best be entitled for 1/11th of 5/12th of the property if it
is taken as joint family property but would have no right if it is taken
as self-acquired property of the defendant no.1.
5. The learned counsel for the respondent no.1 has also submitted
that the defendant no.1, though filed written statement, but did not
disclose the name of his daughter in the written statement or at any
stage. The learned counsel has submitted that the right of all the legal
heirs and successors of defendant no.1 was duly represented by the
defendant no.1 himself and his children are claiming under defendant
no.1 and therefore the impugned judgement does not call for any
interference. He has submitted that no substantial question of law
arises for consideration in this case and therefore this appeal be
dismissed.
6. It is not in dispute that the defendant no.1 and also his sons
were made party in the partition suit but the daughter of defendant
no.1 was not made party.
7. This appeal will be heard on the following substantial question
of law :-
(i) Whether the learned 1st appellate court was justified in
dismissing the appeal filed by the daughter of the
defendant no.1, Usha Devi, who was not a party in the
suit seeking partition of the suit property?
(ii) Whether the learned 1st appellate court has erred in law
in not deciding the appeal on merits on the ground that
the co-appellant-defendant no.13 was duly served the
summons and the trial was ex-parte against him
although the defendant no.13 had challenged the
judgement on merits as well as alleged illegality in the
matter of service of summons and thereby the learned
trial court has failed to follow the provision of Section 96
of Code of Civil Procedure while deciding the 1st appeal?
8. The respondent no.1 has already appeared and hence no notice
need be issued to the respondent no.1.
9. Issue notice to the remaining respondents through speed post
and also ordinary process for which requisites be filed within a period
of 2 weeks from today.
10. Post on 10th November 2025 awaiting service report.
11. This I.A praying to vacate the interim order dated 7.07.2015 is
dismissed.
I.A no 2146 of 2015
12. Till 10th of November further proceedings in Execution Case
No.4 of 2013 pending in the court of Sub-judge -I Dumka, shall
remain stayed.
(Anubha Rawat Choudhary, J.)
Saurav/
