Patna High Court
Arjun Singh vs Bhim Singh on 3 January, 2024
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.166 of 2009
======================================================
Against the judgment and decree dated 19-01-2009 passed by Additional
District Judge 1st, Buxar in Title Appeal No. 33/89 confirming the
judgment and decree dated 29-07-1989 passed by 1 st Additional Munsif
Buxar in Title Suit No. 21 of 1983/8 of 1988.
1. Arjun Singh Son of Late Ram Narain Singh Resident of Village- Koeri
Purwa (Buxar) (Koerpurwa), P.S.- Buxar, District- Bhojpur (Present Buxar).
2. Rama Shray Singh, Son of Late Ram Narain Singh Resident of Village-
Koeri Purwa (Buxar) (Koerpurwa), P.S.- Buxar, District- Bhojpur (Present
Buxar).
3. Rama Shankar Singh, Son of Late Ram Narain Singh Resident of Village-
Koeri Purwa (Buxar) (Koerpurwa), P.S.- Buxar, District- Bhojpur (Present
Buxar).
4.1. Ramawati Devi D/o Late Ram Narain Singh, W/o- Deorajit Singh R/o-
Village- Hukaha, P.S.- Buxar, Dist.- Buxar.
4.2. Rameshwari Devi D/o Late Ram Narain Singh, W/o Lal Babu Singh R/o-
Village- Babube, Jagdishpur, P.S.- Jagdishpur, Dist.- Bhojpur.
4.3. Mina Devi D/o Late Ram Narain Singh, W/o- Ram Sharan Singh R/o-
Village Konwali, P.S.- Rajpur, Dist.- Buxar.
4.4. Anandi Devi D/o Late Ram Narain Singh, W/o- Late Atal Bihari Singh R/o-
Village- Chakarhasi, P.S. and Dist.- Buxar.
4.5. Taramuni Devi D/o Late Ram Narain Singh, W/o- Hipendra Kumar Mukul
R/o- Village- Shivpur, P.S.- Nawanar, Dist.- Buxar at present Village-
Koeripurwa (Buxar), P.S. and Dist.- Buxar.
... ... Appellant/s
Versus
1.1. Most. Panna Devi W/o Late Bhim Singh Resident of Village- Koeripurwa,
P.O. and P.S.- Buxar Dist.- Buxar.
1.2. Rajendra Singh Son of Late Bhim Singh Resident of Village- Koeripurwa,
P.O. and P.S.- Buxar Dist.- Buxar.
1.3. Sugendra Singh Son of Late Bhim Singh Resident of Village- Koeripurwa,
P.O. and P.S.- Buxar Dist.- Buxar.
1.4. Usha Devi D/o Late Bhim Singh, W/o- Manju Singh R/o- Vill.- Bhachakiya,
P.O.- Unwas, P.S.- Itaris, Dist.- Buxar.
1.5. Sonamati Devi D/o- Late Bhim Singh, W/o- Shashi Bhusan Singh R/o- Vill.-
Bhachakiya, P.O.- Unwas, P.S.- Itaris, Dist.- Buxar.
2. Banshi Dhar Singh, Son of Late Rajrup Singh Resident of Village-
Koeripurwa (Buxar) Koerpurwa, P.S.- Buxar, District- Bhojpur (Present
Buxar).
3. Murli Dhar Singh, Son of Late Rajrup Singh Resident of Village-
Koeripurwa (Buxar) Koerpurwa, P.S.- Buxar, District- Bhojpur (Present
Buxar).
Patna High Court SA No.166 of 2009 dt.03-01-2024
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4. Bhaiya Lal Singh, Son of Late Rajrup Singh Resident of Village-
Koeripurwa (Buxar) Koerpurwa, P.S.- Buxar, District- Bhojpur (Present
Buxar).
5. Lal Babu Singh, Son of Late Rajrup Singh Resident of Village- Koeripurwa
(Buxar) Koerpurwa, P.S.- Buxar, District- Bhojpur (Present Buxar).
6. Ramji Singh (Minor), Son of Late Rajrup Singh Leaving under the
guardianship of Bhim Singh, brother and natural guardian, resident of
Village- Koeripurwa (Buxar) Koerpurwa, P.S.- Buxar, District- Bhojpur
(Present Buxar).
7.1. Radhika Devi Resident of Village- Koeripurwa (Buxar) Koerpurwa, P.S.-
Buxar, District- Bhojpur (Present Buxar).
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ganpati Trivedi Sr. Adv. With
Mr. Ashok Kumar Mishra, Adv.
For the Respondent/s : Mr. Jitendra Kumar, Adv. With
Mr. Anil Kumar Roy, Adv.
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 03-01-2023
Heard learned counsel for the appellants and learned
counsel for the respondents.
2. This Second Appeal has been filed against the
judgment of affirmance by the defendants-appellants. In the
instant Second Appeal, the following substantial question of law
has been formulated for determination:-
(i) Whether the judgment of Lower Appellate Court is
vitiated because of the fact that at paragraph 16 of the judgment,
the Lower Appellate Court held that the plaintiffs being the
descendant of Rajrup and Bartani had no title on the land
comprised in khata no. 422 and at the same time, decreed the
suit of the plaintiff for the partition with regard to two plots of
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khata no. 422 being plot no. 915 and plot no. 708?
3. The respondents herein were the plaintiffs before the
learned Trial Court. The appellants herein were defendant Nos.
1 to 3 and original appellant No.4.
4. The learned Trial Court partly decreed the suit. The
plaintiffs and defendants preferred separate appeals bearing Title
Appeal No. 30 of 1989 and Title Appeal No. 33 of 1989
respectively. Both these appeals were dismissed by a common
judgment.
5. Being aggrieved by judgment dated 19-01-2009 passed
in Title Suit No. 33 of 1989, the defendants-appellants filed the
present Second Appeal. It is pertinent to mention here that no
Second Appeal has been filed by the plaintiffs-respondents
against the judgment and decree dated 19-01-2009 passed in
Title Appeal No. 30 of 1989.
6. In order to determine the matter in its correct
perspective, it is necessary to briefly restate the case of the
plaintiffs. The plaintiffs filed Title Suit No. 21 of 1983/8 of
1988 for partition of the Schedule-II lands mentioned in the
plaint and also for declaration that plaintiffs are entitled for half
share of the Schedule-II lands. It is contended that the plaintiffs
and defendants are Joint Hindu Family and they are governed by
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the Mitakshra School of law. Defendant no.1 is the "Karta" of
the Joint Hindu Family and their entire land and property is
joint. It is further pleaded that in the state of jointness, Rajrup
Singh and Ram Narayan Singh died. Both are sons of Ram
Swaroop Singh.Plaintiffs are heirs of Rajrup Singh and
defendants are heirs of Ram Narayan Singh. There was partial
partition between the father of the plaintiffs and father of the
defendants on 28.06.1960 by registered partition deed for the
property of Mauza- Deoaria and Mauza- Koirpurwa. Mostt.
Koeri Devi, who was the grandmother of the plaintiffs-
defendants, got some land in village- Koirpurwa through gift at
the time of partition. After the death of their grandmother, the
lands were recorded in the name of Ram Narayan Singh as he
was the "Karta" of the joint family. It is further contended that
some of the lands were partially partitioned between the parties
and rest of the land remained in jointness details of which is
given in Schedule-II of the plaint. Hence, the suit was filed for
partition of the land mentioned in Schedule-II of the plaint and
for half share in the aforesaid properties. The details of
Schedule-II property, which is situated at Mauza- Koirpurwa,
Thana -Buxar, Buxar, Thana No. 332 Tauzi No. 1297, Dist.
Bhojpur is as follows:-
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(ररवरन्ययू सवर्वे नन० ४६०)
पपo खखातखा नo खरसरखा नo एरखाजज
४२२ ३८८ ४४५ कड़ज
ससोनबरसखा
७०० १२० कड़ज
नखारखा पर
७०२ १२५कड़ज
नखारखा पर
७०६ ३५५ कड़ज
नखारखा पर
९२७ १५० कड़ज
तखाल
९२९ १३० कड़ज
तखाल
९३३ ११० कड़ज
तखाल
२२३ ३९१ ३
३४९ कड़ज वसो १४ डी
४
२२७ ३६७ १
१२२ कड़ी
२
३७५ १
४२ कड़ज
२
7. On summon, the defendants appeared and filed their
written statement and contested the suit. The case of the
defendants, in short, is that the parties are descendants of
Jhingur koeri and are separated much before and they are not
joint. There was no unity of title and possession between the
plaintiffs and defendants over the suit land. The genealogy
given by the plaintiffs is not correct. The plaintiffs have no share
in schedule-II land. Hence, the suit may be dismissed.
8. After analyzing the case of the parties, materials on
record and evidence adduced by the parties, the learned Trial
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Court decreed the suit in part and declared that the plaintiffs are
entitled to half share of land mentioned in Khata No. 227 of Plot
Nos. 367 and 375. Aggrieved thereof, the defendants-
respondents filed Title Appeal No. 33 of 1989.
9. After considering the rival submissions, the learned
Lower Appellate Court affirmed the judgment and decree of the
learned Trial Court dated 29-07-1989 passed by learned 1 st
Additional Munsif, Buxar and, accordingly, dismissed the
appeal by observing that till the annulment of deed by any
competent Court, the partition deed dated 28.06.1960 will be
treated as valid document. It is also observed that 2 katha 11
dhur with regard to Khata No. 422, Plot No. 915 area 2 Katha
11 Dhur and Plot No. 708, 12 biswa land was allotted in the
name of Rajrup Singh, who was father of plaintiffs, in partition
deed dated 29-06-1960. It is also mentioned that the plaintiffs
have not claimed the said land and the same was not mentioned
in the Schedule-II of the plaint. It is also held that the
defendants have also not filed any counter claim against the said
land and there is no case by either of the parties with respect to
the said land.
10. From bare perusal of the impugned judgments and
Lower Court Records, it is apparent that the plaintiffs have not
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claimed share in Khata No. 422 appertaining to Plot Nos. 915
and 708. Both the learned Courts below have rejected the claim
of the lands with respect to Khata nos. 422 and 223.
11. Mr. Ganpati Trivedi, learned Senior counsel
representing the appellants submits that the learned Lower
Appellate Court has misdirected itself that the partition deed
29-06-1960
is a valid document till it is not cancelled by any
competent court of law. It is further submitted by the learned
senior counsel that the finding over a Partition deed dated
29-06-1960, was not challenged by either of the parties.
Moreover, there was no relief sought for in the plaint in this
regard and no issue was framed. The learned Lower Appellate
Court made out a third case.
12. On the other hand, learned counsel for the plaintiffs-
respondents accedes the submissions of the learned senior
counsel for the appellants.
13. The learned counsel for the respondents has
vehemently submitted that the plaintiffs have not challenged the
finding with regard to Khata Nos. 422 and 223. He has fairly
submitted that the plaintiffs have no claim with regard to Khata
No. 422, bearing Plot nos. 915 and 708.
14. Accordingly, as discussed above, the observation
Patna High Court SA No.166 of 2009 dt.03-01-2024
made by the learned Lower Appellate Court with regard to
Partition deed dated 29-06-1960 is unwarranted.
15. In the facts and circumstances of the case, the
substantial question of law formulated is, therefore, answered
against the appellants.
16. Thus, this Second Appeal has no merit and,
accordingly, it is dismissed.
17. Pending Interlocutory Applications, if any, shall stand
disposed of.
(Khatim Reza, J)
shyambihari/-
AFR/NAFR NAFR
CAV DATE 22-12-2023
Uploading Date 06-01-2024
Transmission Date N/A
