Binodanand Sharma & Ors vs Srinibas Sharma & Ors
2026 Latest Caselaw 32 Jhar

Jharkhand High Court

Binodanand Sharma & Ors vs Srinibas Sharma & Ors on 5 January, 2026

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                            S. A. No. 68 of 2002

    Binodanand Sharma & Ors.
                                 ... ...     Plaintiffs/Respondents/Appellants
                                  Versus
    Srinibas Sharma & Ors.
                               ... ...        Defendants/Appellants/Respondents

                         ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

For the Appellants : Mr. Kundan Kumar Ambastha, Advocate Mr. Anurag Chandra, Advocate Md. Abdul Wahab, Advocate For the Respondents :

---

th 19/5 January 2026

1. Heard the learned counsel appearing on behalf of the appellants.

2. Nobody appears on behalf of the respondents.

3. This appeal has been filed against the judgment and decree dated 24.05.2002 (decree signed on 07.06.2002) passed by the learned Additinoal District Judge, Singhbhum (East), Jamshedpur in Title Appeal No. 34 of 1987 dismissing the cross-appeal filed by the plaintiffs in the said appeal and confirming the judgment and decree dated 27.05.1987/12.06.1987 passed by the learned Sub-Judge-III, Jamshedpur in Title Suit No. 65/75 of 1985-86.

4. The records of the case reveal that the original plaintiff was Lakshman Sharma and the defendant no. 1, namely, Ram Chandra Sharma was his full brother.

5. The learned counsel for the appellants has submitted that the main contesting defendant was defendant no. 1 and other defendants were also the family members and defendant nos. 12 and 13 were proforma defendants.

6. The learned counsel for the appellants submits that the substantial question of law framed in this case revolves around Holding No. 94. He

submits that Holding No. 94 was not included in the Schedule of the plaint, but the learned trial court had included Holding No. 94 while passing the decree regarding partition of the property and ½ share each with respect to Holding No. 94 was allotted to the original plaintiff and the defendant no. 1. The learned counsel submits that on account of inclusion of Holding No. 94 in the partition at the instance of defendant no. 1, the plaintiffs had filed cross-objection/cross-appeal before the learned 1st appellate court. The defendants had also filed appeal before the learned 1st appellate court who were aggrieved by the order of partition.

He submits that the appeal of the defendant no. 1 as well as the cross- objection were dismissed by the learned 1st appellate court. Consequently, the plaintiffs have filed his Second Appeal and the defendant no. 1/their legal heirs had also filed Cross Objection No. 03 of 2005 which stood dismissed for default vide order dated 08.09.2022.

7. The learned counsel has then referred to the substantial question of law framed in this case vide order dated 21.04.2005 which is quoted as under: -

"Whether in absence of any specific pleading by the defendants that the property of Sakchi Market (Holding No.

94) and the land of Mouza Gadra were purchased out of the joint fund of the plaintiffs and the defendants and without any proof on record on such joint acquisition, the findings of the Courts below regarding the jointness of the said property are vitiated in law?"

8. The learned counsel submits that Holding No. 94 was standing in the name of the original plaintiff, namely, Lakshman Sharma and since it was his self-acquired property it was not included in the schedule of the plaint. He submits that the defendant no. 1 in the written statement had asserted in paragraph 21 and 22 that Lakshman Sharma had not whispered a word with respect to Holding No. 94 which was once acquired by defendant in the name of K. Mahapatro (nephew of the defendant no. 1 and son of his elder brother, namely, Markandya Patro) and subsequently it was acquired in the name of the original plaintiff by virtue of registered

sale deed dated 12.08.1968. In paragraph 22 of the written statement, the defendant no. 1 has asserted that the defendant no. 1 first acquired the Shop No. 94 of Sakchi Bazar in the name of his nephew K. Mahapatro and one Kumar Bar Parida for 5 years by means of registered deed dated 17.11.1962. Thereafter as the owner of the said property was highly indebted and expressed his desire to sell the same and it is defendant no. 1 who got the said property purchased in the benami name of the original plaintiff after collecting some money by selling another shop at Balidih, Jamshedpur being shop no. 5.

9. The learned counsel has then referred to paragraph 26 of the written statement filed by the defendant no. 1 and submitted that it was alleged that the original plaintiff has suppressed many facts and had not included some considerable amount of property like Holding No. 94 which was acquired in the joint names of the parties and it was asserted that unless the same is included, the suit cannot proceed. The learned counsel submits that the plaintiff did not include Holding No. 94 as a suit property and it was defendant no. 1 who asserted that Holding No. 94 was joint property, so it was the onus of defendant no. 1 to prove that the said property was the joint property of the original plaintiff and the defendant no. 1. The learned counsel has submitted that the property in Holding No. 94 was standing in the exclusive name of the original plaintiff and it was the defendant no. 1 who asserted that it was the joint property, therefore, it was for the defendant no. 1 to prove this fact by bringing on record cogent evidence. He submits that in absence of such cogent evidence, the learned courts should not have included Holding No. 94 for the purposes of partition.

10. The learned counsel submits that so far as the direction for partition in connection with other properties are concerned, the plaintiffs have no grievance as the suit stand decreed in favor of the plaintiffs which was confirmed by the learned 1st appellate court and the cross-objection filed

by the defendants being Cross Objection No. 03 of 2005 has been dismissed.

11. The learned counsel has referred to exhibit-6/a which was the lease deed dated 18.12.1962 between Jagannath Sahu on one part and Lakshman Sharma and Surendra Nath Parida on other part. Thereafter, he referred to exhibit-A/6 which is dated 12.08.1968 to submit that Holding No. 94 was purchased exclusively in the name of Lakshman Sharma and not jointly in the name of Lakshman Sharma and defendant no. 1.

12. The learned counsel has also referred to Sections 101 and 106 of the Indian Evidence Act to submit that the onus was on the defendant no. 1 to prove that the property was acquired jointly with respect to Holding No.

94. It was also for the defendant no. 1 to plead and prove that the property was purchased from the joint family fund.

13. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2003) 10 SCC 310 (D.S. Lakshmaiah & Anr. vs. L. Balasubramanyam & Anr.) and has referred to paragraph 18 thereof which reads as under: -

"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."

14. The learned counsel submits that if the aforesaid principle of law as lays down by the Hon'ble Supreme Court is followed, then the defendant no. 1 has miserably failed to prove that Holding No. 94 was a joint family property and therefore the learned court has wrongly included Holding No. 94 by partitioning the property, although admittedly Holding No. 94 did not form a part of the schedule of the plaint seeking for partition.

15. This court finds that Title (Partition) Suit No. 65/75 of 1985-86 was filed by Lakshman Sharma (original plaintiff) for the following reliefs: -

"(i) for a preliminary decree for partition of half share of the Plaintiff in the properties described in Schedule 'A', 'B', 'B(i)', 'B(ii)' and 'C' below and for partition of his 1/8 th share in the properties described in Schedule 'B' below.

(ii) for appointment of a survey knowing pleader commissioner to survey the aforesaid properties and partition plaintiff's share in the aforesaid properties.

(iii) for a final decree for partition of plaintiff's share in the aforesaid properties after receipt of the pleader commissioner's report.

(iv) for the cost of the suit.

(v) for any other relief or relief to which the plaintiff may be found to be entitled in law and equity."

16. It is not in dispute that the original plaintiff and defendant no. 1 were full brothers and they were originally resident of Orissa.

17. It was the specific case of the plaintiffs that the original plaintiff and defendant no. 1 came from Orissa to Jamshedpur and they jointly started grocery business in the ground floor of the building in Holding No. 0.53, Handi Line, Sakchi Bazar and the entire building was taken on rent from one Madhab Sahu, the owner of the property. The original plaintiff and defendant no. 1 jointly carried on their business each having ½ share in the business and from the earning of the joint business they purchased properties.

With respect to schedule A property, it was stated that plaintiff and defendant no.1 purchased two storied building from the owner Madhab Sahu and his son Bishwanath Sahu vide registered sale deed dated 27.07.1965 for a consideration amount of Rs. 6,000/- and the sale deed was executed by Madhab Sahu and his son in favor of the original plaintiff and the defendant no. 1. It was the further case of the plaintiff that the building was purchased by them out of their joint family fund, that is, income from the joint family grocery business.

18. With respect to Schedule B property, it was the case of the plaintiff that out of the joint family fund, the original plaintiff and the defendant no. 1 purchased the same jointly with Raghunath Sahu (defendant no. 2) and they jointly undertook construction over the property with Raghunath Sahu and they were in joint possession with Raghunath Sahu. The property was purchased out of the income from the aforesaid business. It was the case of the plaintiff that Raghunath Sahu has ¾ share in Schedule- B property and the original plaintiff and the defendant no. 1 jointly have ¼ share and thus, the plaintiff has 1/8th share and the defendant has 1/8th share and Raghunath Sahu has ¾ share.

With respect to schedule C property, it was the case of the plaintiff that the original plaintiff and the defendant no. 1 had purchased the same out of the joint business and joint fund and in the recent survey, a portion of the property along with a small house thereon has been allotted to the share of the plaintiff and the defendant no. 1 and the plaintiff claimed ½ share of the property. The plaintiff asserted that for proper adjudication of the suit Satrughan Sao and Ram Lal Majhi were made proforma defendants in the suit.

It was also asserted that the defendant no. 1 had confiscated certain immovable property in terms of gold etc.

19. It was the further case of the plaintiff that the original plaintiff and defendant no. 1 were separated in mess and the joint grocery business was closed in or about the year 1978 though a fair price shop was still running in Schedule-A property. It was the further case of the plaintiff that the defendant no. 1 had sold some of the joint properties and the original plaintiff requested for amicable partition, but the defendant no. 1 refused to do so which gave rise for filing the partition suit. Schedule-B(i) and also in Schedule-B(ii) It was the further case of the plaintiff that the defendant no. 1 and the original plaintiff purchased further property which is mentioned in Schedule-B(i) and also in Schedule-B(ii).

20. It was asserted that the defendant no. 1 had sold land to defendant nos. 5 to 12 by eight separate sale deeds.

21. The plaintiff claimed 1/2 share of the properties described in Schedule 'A', 'B', 'B(i)', 'B(ii)' and 'C' and for partition of his 1/8th share in the properties described in Schedule 'B'.

22. The records reveal that separate written statement was filed by defendant no. 1 and defendant no. 12.

23. The defendant no. 1 opposed the prayer by asserting that the suit itself was not maintainable and there was no unity of title and possession in all the suit properties between the parties.

24. It was asserted that it was false to allege that the defendant no. 1 and Lakshmi Sharma has come to Jamshedpur and that they jointly started a grocery business in Holding No. 53 as alleged by the original plaintiff. It was the case of the defendant no. 1 that he came to Jamshedpur alone in the year 1938 after death of his father in search of livelihood and took the entire Holding No. 53 described in Schedule-A of the plaint as tenant on monthly rent and started a business of grocery shop from his own and separate fund and was residing with his family in a portion of the same. The house was originally a single storied building which was subsequently constructed in two storied building in two units. It was the further case of the defendant no. 1 that in the year 1946/47, since the business was flourishing, the defendant no. 1 asked his brother Lakshman Sharma (original plaintiff), who was student at that point of time, to come to Jamshedpur and helping him in his outdoor business. The defendant no. 1 also maintained the family of Lakshman Sharma. During this period, the defendant no. 1 acquired landed property in plot no. 352 and 351 in the joint name of the original plaintiff and the defendant no. 1 by registered deed dated 23.07.1951 and further acquired property in old plot no. 352 in the joint name of the defendant no. 1 and the original plaintiff Lakshman Sharma.

25. It was the case of the defendant no. 1 that he was occupying portion of Schedule-A property as tenant which was purchased by defendant no. 1 out of his self-acquired fund though in the joint name of defendant no. 1 and the original plaintiff from the original owner vide registered sale deed dated 27.07.1965. It was the case of the defendant no. 1 that the defendant no. 1 having purchased the Schedule-A property out of his self-acquired fund unconcerned with the Lakshman Sharma, the name of defendant no. 1 was duly mutated in the office of M/s. TISCO Ltd. exclusively in the name of defendant no. 1 and the defendant no. 1 continued to pay rent to M/s. TISCO Ltd. It was the further case of the defendant no. 1 that the original plaintiff was never the owner of the suit property mentioned in Schedule-A of the plaint and the original plaintiff was only the name lender without having any right over Schedule-A property. With respect to other suit properties also similar stand was taken.

26. The defendant no. 1 opposed the prayer of the plaintiff seeking partition of the schedule properties to the plaint by saying that the suit properties were self-acquired properties of the defendant no. 1/defendant no. 1 and other co-defendants and the original plaintiff had nothing to do with those properties.

27. In furtherance to the aforesaid stand dealing with the suit properties, reference was made to some more property including Holding No. 94, which is subject-matter of consideration in the light of the substantial question of law framed by this Court and the defendant no. 1 made following statements in paragraph 21 to 23 and 26 : -

"21. That it is very much curious to note that the deceased plaintiff Lakshman Sharma has not made any whisper about holding No. 94, Sakchi Market, Jamshedpur which was once acquired by this defendant in the name of K. Mahapatro nephew of this defendant (son of his elder brother Markandya Patro) and subsequently in the name of deceased plaintiff, and also about lands of Plot Nos. 351 and 352 of Mouza Gadhra, P.S. Telco., measuring 0.07 acres of homestead lands, which was acquired by means of Registered deed of Sale, dated 22/7/1951 in the joint names of this defendant and deceased Lakshman Sharma and

also about another portion of Plot No. 352 which was separately acquired by this defendant by means of Registered Deed of Sale, dated 7/3/1967 for valuable consideration. Besides above some more land in Mouza Gadhra were also acquired in the joint names of this defendant and Lakshman Sharma, which all measured 0.40 acres. This defendant also acquired 3.75 of agricultural land in his native place at Orissa, in village Bishra and Dadaposh.

22. That the defendant no. 1 at first acquired the Shop No. 94 of Sakchi Bazar in the name of his nephew K. Mahapatro and one Kumar Bar Parida for 5 years by means of Regd. Deed, dated 17/11/1962. Thereafter as the owner of the said property was highly indebted and expressed his desire to sell the same, it is this defendant who got the said property purchased in the benami name of deceased Lakshman Sharma after collecting some money by selling another Shop at Baridih, Jamshedpur being Shop No. 5.

23. That this defendant also jointly acquired another vacant land in Mouza Mohardih (Baridih) with Chaitan Sao, Bhagirathi Chowdhury, Ganga Prasad Sukla, measuring about 0.60 acres. The said land was acquired by this defendant and the said Vendees in their joint names along with the name of his aforesaid brother Lakshman Sharma, and also in the name of his the then minor son Srinibas Sharma.

24...................................

26. That from the above facts it will be crystal clear that the plaintiffs and deceased Lakshman Sharma have deliberately suppressed many facts and have not included some considerable amount of property viz. of Gadhra, holding No. 94, Sakchi Bazar etc. which were acquired in the joint names of the parties and unless the same are included, the present Suit cannot proceed."

28. It was further case of the defendant no.1 that there was a previous family arrangement in the year 1971 and in the said family arrangement , the aforesaid Shop with the business in holding No. 0/94, Sakchi Bazar, as well as all the aforesaid entire properties of Mouza Gadhra, Measuring more or less 0.40 acres, and also the aforesaid agricultural land of Bishra and Dadaposh Village in Sundergarh District, Orissa, measuring 3.75 acres were all allotted to said Lakshman Sharma (plaintiff) absolutely. It was their

further case that after the said family arrangement, dated 16/3/1971, the parties started enjoying their respective properties allotted in the individual names in absolute and exclusive right and the plaintiff sold away himself the aforesaid entire landed properties of Gadhra Mouza vide Registered Deed of Sale dated 5/2/1974 and enjoyed the Sale proceeds. It was asserted that this fact alone would show that properties were allotted to the parties in the said family arrangement dated 16/3/1971. The statement with regards to the said family arrangement have been mentioned in the paragraph 24 and 25 of the written statement as follows:

-

"24. That sometime in or about the year 1969 a Chronic dispute and differences arose between the families of this defendant and his said brother Lakshman Sharma in which it was no longer possible for them to run all the aforesaid business by the defendant no. 1 with the help of said Lakshman Sharma and for which a family arrangement was made on 16/3/1971 for smooth distribution of properties at Jamshedpur between this defendant and his brother Lakshman Sharma in presence of some renowned persons, relations, and well-wishers of parties to the locality and also in presence of K. Mahapatro. In the said arrangement the entire building of Schedule 'A' was allotted in the share of this defendant along with aforesaid properties of Baridih, which remained, after sale of Shop No. 5, of the said area, absolutely. The aforesaid Shop with the business in holding No. 0/94, Sakchi Bazar, as well as all the aforesaid entire properties of Mouza Gadhra, Measuring more or less 0.40 acres, and also the aforesaid agricultural land of Bishra and Dadaposh Village in Sundergarh District, Orissa, measuring 3.75 acres were all allotted to said Lakshman Sharma absolutely. Similarly K. Mahapatro was allotted the Rourkela Shop. None of this defendant or the said Lakshman Sharma or K. Mahapatro had any right, title, interest or lawful possession over any portion of the said properties which were allotted in the share of other in the aforesaid arrangement, dated 16/3/1971. This defendant thereafter continued to become absolute owner of the Schedule 'A' property and the business being run by him in the ground floor of the same. At present this defendant is running a Cloth Shop as well as Government Fair Price Shop in the ground floor

of the said house exclusively and unconcerned with the plaintiffs or their predecessor Lakshman Sharma.

25. That after the said family arrangement, dated 16/3/1971, the parties started enjoying their respective properties allotted in the individual names in absolute and exclusive right. The said Lakshman Sharma thereafter sold away himself the aforesaid entire landed properties of Gadhra Mouza which was within one compact block with his elder son Brojo Sekhar Sharma by means of a Registered Deed of Sale, dated 5/2/1974 for valuable consideration to Usha Devi enjoyed the Sale proceeds themselves exclusively unconcerned with anybody. This fact alone will go as sole corroboration about the properties allotted to the shares of the parties in the said family arrangement dated 16/3/1971."

29. As the court's time is over, post this case for further dictation tomorrow i.e. 6th January 2026.

(Anubha Rawat Choudhary, J.) Dt. 05.01.2026 Mukul/-