Jharkhand High Court
A. Ranjit Kumar vs Mania Devi @ Meena Devi Wife Of Late Hari ... on 11 September, 2025
2025:JHHC:28051
IN THE HIGH COURT OF JHARKHAND, RANCHI
Second Appeal No. 142 of 2003
[Against the Judgment dated 18.01.2003 and decree dated 30.01.2003
passed by learned 9th Additional District Judge, Hazaribagh in Title
Appeal No.14 of 1996]
1. a. Ranjit Kumar
b. Kundan Kumar
c. Reena Sharma, widow of Rajesh Sharma
2. Ganesh Mistry, Son of Late Mahabir Mistry, resident of Malviya
Marg, Hazaribagh, P.O., P.S. and District- Hazaribagh.
.... Appellants/Defendants
Versus
1. Mania Devi @ Meena Devi wife of Late Hari Mistry.
2. Sanju Kumari, minor daughter of Late Hari Mistry.
3. Suresh Mistry Minor Sons of Late Hari Mistry through their
4. Bablu next friend and guardian Meena Devi their
5. Anil mother.
6. (i) Most. Shanti Devi, widow of Late Prem Mistry
(ii) Suresh Mistry Both Sons of Late Prem Mistry.
(iii) Dipu Mistry
All resident of Kali Bari Road, P.O. Hazaribagh, P.S. Sadar, District-
Hazaribagh.
(iv) Manju Devi wife of Sri Krishna Rana & D/o. Late Prem Mistry,
R/o Near Ojha Market, Piska More, P.O. Hehal, P.S. Sukhdeonagar,
District- Ranchi
(v) Gudia Devi, wife of Sri Krishna Sharma, Daughter of Late Prem
Mistry resident of Gopal Nagar, Kali Mandir Para, Asansol, West
Bengal.
(vi)Munni Devi, wife of Sri Rajesh Sharma, Daughter of Late Prem
Mistry resident of at & Vill- Dumri, P.O.- Dumari, P.S. Dumari,
District- Giridih.
.... Respondents / Plaintiffs.
Second Appeal No. 142 of 2003 Page | 1
2025:JHHC:28051
7. Singhasan Mistry, Son of Late Birju Mistry
8. Most. Anita, wife of Late Birju Mistry.
9. Bikky, Son of Late Manik Mistry aged about 10 years.
10.Golu, Son of Late Manik Mistry aged about 08 years.
11.Gudia, Daughter of late Manik Mistry aged about 06 years.
No.9 to 11 are minors and they are being represented by their natural
guardian mother Most. Anita whose interest is not adverse to her
minor children, all of Kokar Ranchi.
12. Binod Mistry, Son of late Birju Mistry, C/O. Bhagwan Das Hotel,
P.O. Kokar, Lalpur Chowk, P.O. & P.S. Ranchi, District-Ranchi.
.... Respondents / Defendants/Proforma Respondents
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
--------
For the Appellants : Mr. Rajeev Ranjan Tiwari, Adv.
For the Respondents : Mr. Arjun Narayan Deo, Adv.
Ms. Karishma Kumari, Adv.
Mr. Chatur Prasad Singh, Adv.
---------
JUDGMENT
C.A.V. on: 16/07/2025 Pronounced on 11/09/2025
Heard learned counsel for appellants Mr. Rajeev Ranjan Tiwari as
well as learned counsel for the respondents Mr. Arjun Narayan Deo.
2. Instant second appeal has been preferred by the appellants/defendants
against the concurrent findings of trial court as well as appellate court
whereby and whereunder the tile partition suit no. 111/94 instituted by the
respondents/plaintiffs have been decreed.
Factual Matrix
3. Factual matrix giving rise to this appeal is that the suit was instituted by the
original plaintiffs namely Hari Mistry and Prem Mistry for declaration of
Second Appeal No. 142 of 2003 Page | 2
2025:JHHC:28051
their 1/3rd share in the suit Schedule-A property appertaining to Plot
No.800, Holding No. 128, Ward No. 8 area, 1 Kattha, 16 Dhur and 12
dhuril situated in Mohalla- Maldivmal, District- Hazaribagh. The case of
the plaintiffs is that the suit property belongs to Late Dukhuwa Barhin
mother of Moti Mistry who died leaving behind 04 sons namely Mahavir
Mistry, Durgi Mistry, Birju Mistry and Babra Mistry. Babra Mistry died in
his childhood. Mahavir Mistry died leaving behind 02 sons namely, Bharat
Mistry and Ganesh Mistry. Durgi Mistry died leaving behind him two sons
Hari Mistry and Prem Mistry. Birju Mistry died leaving behind three sons
namely Singhasan Mistry, Manik Mistry and Binod Mistry. Since Babra
Mistry died in childhood hence, branch of all three brothers got 1/3rd share
in the suit property. On the other hand, the case of contesting defendants
has admitted that Dukhuwa Barhin wife of Basant Mistry was the owner of
the suit property, but Moti Mistry was not her son, therefore sons of Moti
Mistry had never inherited in the property of Most. Dukhuwa Barhin. The
specific case of the defendants is that Dukhuwa Barhin owner of the suit
property had two daughters, her first daughter died issueless after marriage
and the second daughter was married with one Harikishun Mistry who died
leaving behind him one alive daughter Bandia Devi and his two sons
Chattu Mistry and Jagannath Mistry died in childhood. Said Bandia Devi
being the granddaughter of Dukhuwa Barhin, was married with Mahavir
Mistry (father of the defendant nos.1 and 2) the suit property was orally
gifted to Bandia Devi, therefore in the municipal holding, name of the
defendant was mutated and they are paying the municipal taxes regularly
since more than 12 years. The plaintiffs have no right title and interest over
the suit property which is not a joint property of the parties or exclusive
Second Appeal No. 142 of 2003 Page | 3
2025:JHHC:28051
property of the defendants. Therefore, no question of partition and
determination of 1/3rd share of plaintiffs arises. The suit of plaintiffs is
liable to be dismissed.
The learned trial court has framed following Issues:-
(i). Is the suit as framed maintainable?
(ii). Have the plaintiffs any valid cause of action for the suit?
(iii). is the court fee paid sufficient?
(iv). is the suit bad for non-joinder of the necessary parties?
(v). is the suit is barred of law of limitation and adverse possession and
ouster?
(vi). Have the plaintiffs got unity of title and unity of possession over the
suit property ?
(vii). Are the plaintiffs entitled for a decree of partition as prayed for?
(viii). What relief or reliefs the plaintiffs are entitled to?
4. The learned trial court after considering the oral as well as documentary
evidence adduced by the parties and hearing arguments decreed the suit of
the plaintiff on contest, but without cost.
5. The defendants preferred an appeal against the judgment of trial court vide
title appeal no. 14 of 1996 wherein assailing the impugned judgment and
decree passed by trial court following points were raised:-
(i) Issue No.4 has not been discussed and the suit will fail for non-joinder
of necessary parties.
(ii).Issue nos. 5 and 6 has been discussed separately and clubbing of the
issue has caused prejudice.
(iii). The evidence of witnesses has not been properly considered in respect
of genealogy of the family and the register of Vishwakarma Committee
Second Appeal No. 142 of 2003 Page | 4
2025:JHHC:28051
showing genealogy of the parties has wrongly been marked as exhibit
without any legal proof, it is also caused serious prejudice.
6. The learned appellate court after considering the aforesaid grounds has
separately decided issue nos. 4, 5 and 6, re-appreciating the oral and
documentary evidence led by the respective parties.
7. As regards Issue no.4:- The learned appellate court recorded findings that the
objection raised by the defendants that daughter of the Mahavir Mistry
namely, Mishwa Devi has not been made party in this appeal does not affect
the share of the defendants who had 1/3rd share.
8. As regards Issue no. 5:- It was observed that plaintiffs have been found in
possession of the suit property along with the defendants, therefore, no
question of limitation or adverse possession or ouster arises.
9. As regards Issue No.6:- It is held that admittedly, Dukhwa was the mother of
Moti Mistry and wife of Basant Badhai. The defendants are also sons and
descendants of Moti Mistry are an admitted fact. The plea of defendants is
that the Dukhwa Barhin had only two daughters one died issueless after
marriage and another was married with Harikishun Mistry who have left
only one daughter behind namely Bandia Devi (Granddaughter of Dukhwa
Badhim) and the suit property was orally gifted to Bandia Devi wife of
Mahavir Mistry has not been proved by the defendants through cogent and
reliable evidence. Moreover, the oral gift of immovable property is not
permissible under law.
10. The relationship of parties was found to be proved on hypothesis of
probability as pleaded by the plaintiffs. Therefore, appeal filed by the
defendants was dismissed by the first appellate court also.
Second Appeal No. 142 of 2003 Page | 5
2025:JHHC:28051
11. The learned counsel for the appellant has led much emphasis upon the
provision of Section 50 of Indian Evidence Act to prove the genealogy and
relationship between the parties.
12. For ready reference, Section 50 of the Indian Evidence Act is extracted as
under:-
"When the court has to form an opinion as to the relationship with one
person to another, the opinion expressed by conduct, as to the existence of
such relationship, of any person who, as a member of the family or
otherwise, has special means of knowledge, is a relevant fact.
"Provided that such opinion shall not be sufficient to prove the marriage
in a proceeding under the Indian Divorce Act (iv) of 1869, or in prosecutions
under Sections 494, 495, 497 and 498 of the Indian Penal Code (45 of
1860)."
13. The illustration appended to the aforesaid Section are as follows:-
(a). The question is whether A and B were married.
The fact that they were usually received and treated by their friends as
husband and wife, is relevant.
(b) The question is whether A was the legitimate son of B.
The fact that A was always treated as such by members of the family, is
relevant.
14. The aforesaid provisions is not a branch of substantive law rather procedural
law which only facilitate to Court in deciding relationship between the
parties in certain cases by the evidence of persons who are usually expected
to know about such relationship as expressed by conduct of the parties. Such
evidence is mere opinion of a person which may or may not be admissible.
In evidence, Section 50 allows Courts to consider the practical evidence of
Second Appeal No. 142 of 2003 Page | 6
2025:JHHC:28051
relationships as demonstrated through behaviour and conduct, but it also sets
limits on the weight given to such evidence in specific legal situations.
15. In the instant case, the oral testimony of witnesses examined by the plaintiffs
as well as defendants and the documentary evidence led in support of the
case, although not considered by the learned trial court as strict evidence of
relationship i.e., family pedigree of the parties. It appears that both the trial
court as well as learned appellate court have recorded the concurrent
findings that Dukhwa Barhin was wife of Basant Mistry and mother of Moti
Mistry, this fact has not been controverted by the defendants through any
cogent and reliable evidence. It is an admitted position that Moti Mistry had
four sons one of them died issueless and both the parties are descendants of
three sons of Moti Mistry. It is also admitted fact that the suit property was
belonging to Dukhwa Badhin. Therefore, the same has been inherited by all
her heirs and descendants in equal share per stripes. The defendants have
setup a case placing reliance upon different genealogy, whereby, the Dukhwa
Badhin and her husband Basant Mistry has been treated as separate entity
having no concern with Moti Mistry and his sons, but the burden of proving
such facts sparingly lies upon the defendants, but they miserably failed to
establish their own case rather also setup an oral gift of immovable property
which has no legal sanctity at all. The exhibit G and F executed by Dukhwa
Barhin and copy of Aam Ishtehar Mutation No. 75/1974-75 dated
10.01.1975 respectively does not provide any exclusive title to the
defendants.
16. In view of aforesaid discussion and reasons, I do not find any reason to take
a different view and differ from the concurrent findings recorded by the
learned trial court and first appellate court. There is no legal force and
Second Appeal No. 142 of 2003 Page | 7
2025:JHHC:28051
substance in the substantial question of law formulated in this appeal serving
any useful purpose in favour of appellants. Accordingly, this appeal is
dismissed on merits with contest. Both parties shall bear their own cost.
17. Pending I.A., if any disposed of
18. Let the copy of this judgment along with trial court record be sent back to
the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Date: 11 /09/2025
Amar/- N.A.F.R.
Second Appeal No. 142 of 2003 Page | 8
