Jharkhand High Court
Smt. Kunta Devi Wife Of Shri Uday Nath ... vs Smt. Kalawati Devi on 30 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 343 of 2004
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.343 of 2004
(Against the Judgment and decree dated 22.03.2004 passed by the learned
District Judge, Palamau at Daltonganj in Title Partition Appeal No. 53 of 2003)
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1. Smt. Kunta Devi wife of Shri Uday Nath Mishra
2. Smt. Manpati Devi wife of Shri Vijay Kant Mishra Both resident of Village Guri, P.O. Bhandar, P.S. Bishrampur, Dist. Palamu .... .... .... Appellants Versus
1. Smt. Kalawati Devi, wife of Shri Rajeshwar Mishra
2. Shiv Kumar Mishra
3. Ashok Mishra Serial no.2 and 3 both sons of Shri Rajeshwar Mishra Nos. 1 to 3 all resident of Village- Guri, P.O. Bhandar, P.S. Bishrampur, Dist. Palamu
4. Awadhesh Mishra
5. Rajeshwar Mishra Serial no.4 and 5 both sons of late Jai Prakash Mishra @ Pragash Mishra
6. Dhaneshwar Mishra
7. Maheshwar Mishra Serial no.6 and 7 both sons of late Nakchhedi Mishra Nos.4 to 7 all resident of Village- Guri, P.O. Bhandar, P.S. Bishrampur, Dist. Palamu
8. Shiv Dutt Pandey son of late Byas Pandey, resident of Village Fuliya, P.O. Tisibar, P.S. Bishrampur, Dist. Palamu ... .... .... Respondents
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For the Appellants : Mr. R.N. Sahay, Sr. Advocate
: Mr. Yashvardhan, Advocate
: Mr. Vishnu Prabhakar Pathak, Advocate
: Mr. Piyush Abhishek, Advocate
For the Respondents : Mr. Manjul Prasad, Sr. Advocate
: Mr. Baban Prasad, Advocate
: Mr. Arbind Kr. Sinha, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 1 Second Appeal No. 343 of 2004 22.03.2004 passed by the learned District Judge, Palamau at Daltonganj in Title Partition Appeal No. 53 of 2003 whereby and where under, by the said judgment of concurrence, the learned first appellate court has dismissed the appeal and confirmed the judgment and decree passed by the learned trial court being the court of Sub-Judge-IV, Palamau at Daltonganj in Partition Suit No.45 of 1998 dated 10.06.2003.
3. The case of the plaintiffs in brief is that after partition of the land jointly purchased vide registered sale deed no.302 of 1938, amongst the purchasers of the said land, bearing plot no.767 of total area of 1.18 acres along with other lands, the suit land was allotted in the takhta of Jiokali Kuar who is the mother of the plaintiffs and defendant nos. 1 and 2, grandmother of defendant nos.3 and 4 and maternal grandmother of defendant no.5. Jiokali Kuar died in the year 1976-77 leaving behind two daughters and three sons. His other son Nakchhedi Mishra predeceased her in the year 1965 leaving behind two sons who are the defendant nos.3 and 4 of the suit. Dasrath Mishra died without having any issue in the year 1988. He was unmarried. Since the suit land was the self-acquired property of Jiokali Kuar hence, after her death, all plaintiffs and the defendants being her heirs and legal representatives succeeded her estate and all the properties acquired by Jiokali Kuar devolved upon the plaintiffs and the defendant nos.1 to 5. As the plaintiffs came to know that the defendant nos. 1 and 2 are in search of customers to transfer the suit land hence, the necessity arose for filing the partition suit. The plaintiffs share in the suit land is 5/24th whereas the share of the defendant no.1 and 2 in the suit land is 5/24th. The defendant nos.3 and 4 2 Second Appeal No. 343 of 2004 along with defendant nos. 6 and 7 are together entitled with 1/6th share. Hence, the plaintiffs filed the suit for partition.
4. In their joint written statement, the defendant nos.6 and 7 challenged the maintainability of the suit on various technical grounds and pleaded that there is no unity of title and possession between the parties to the suit and the plaintiffs are not entitled to 1/5 th share. The defendant nos.6 and 7 further pleaded that the land of khata no.19, plot no.767 of area 1.18 areas of Village Guri, P.S. Bihrampur, was originally recorded at the time of last survey settlement operation before filing of the written statement by the defendant nos.6 and 7 in the name of Thakur Mishra. The land of khata no.19 was auction sold and the same was purchased by the ex-landlord and the land was settled to Dipnarayan Pandey of Village- Fulia. Dipnarayan Pandey sold the suit land to Baso Kuar, Jiokali Kuar and Fulmati Kuar and accordingly the same came in their possession peacefully and exclusively and through an amicable partition and Jiokali Kuar was allotted the entire plot no.767 of an area of 1.18 acres. According to these defendants Jiokali Kuar died leaving behind her four sons being Nakchhedi Mishra, Dasrath Mishra, Awadhesh Mishra and Rajeshwar Mishra and the demand was opened 1/4th each to their names. Son of Nakchhedi Mishra namely Dhaneshwar Mishra and Maheshwar Mishra came in possession over 1/4th share and they sold the suit land to the defendant nos.6 and 7 through registered sale deed no.985 of an area of 29 decimals and these defendants came to own and possess the same peacefully and exclusively. Mutation was also allowed. The regular rent receipts are granted by the State Government 3 Second Appeal No. 343 of 2004 of Bihar. The order has also been passed in favour of the defendant nos.6 and 7 by the Additional Collector, Palamau at Daltonganj. The house of the defendants is also standing over the purchased land and 10 decimals of land is the paddy lands and rest are Tanr Bari lands and house has been constructed by the defendants. The defendants further pleaded that the plaintiffs have got no concern and possession over an inch of the suit land.
5. In their joint written statement, the defendant nos. 2 and 5 also challenged the maintainability of the suit on various technical grounds. These defendants further pleaded that after the death of Jiokali Kuar, the defendant nos.3 and 4 were allotted their father's share although they were not entitled for the same. The defendant nos. 3 and 4 have transferred more than their legitimate share of the plot to the defendant nos.6 and 7. These defendants further pleaded that the plaintiffs are entitled to 1/5th share of the suit land but she is not entitled for any costs from the defendants.
6. On the basis of the rival pleading of the parties, the learned trial court framed the following six issues:-
(I.) Is the suit as framed maintainable?
(II.) Have the plaintiffs any valid cause of action for the suit? (III.) Is there unity of title and unity of possession between the parties with respect to the suit land?
(IV.) Was there partition with respect to suit land before the suit? (V.) Does the suit suffer from the defects of non- joinder of necessary parties? (VI.) Are the plaintiffs entitled to the relief as claimed?
7. The learned trial court first took up issue nos. (III), (IV), (V) and (VI) together and after considering the evidence in the record that there is unity of title and interest between the parties to the suit in respect of the suit land and no partition by metes and bounds were ever effected 4 Second Appeal No. 343 of 2004 to between the parties of the suit and that the suit is not bad for non- joinder or misjoinder of necessary parties; came to the conclusion that the defendants are entitled to 1/5th share of the suit land and are entitled to get the relief prayed for by them. The learned trial court thereafter took up issue no. (I) and (II) and came to the conclusion that the suit in its present form is maintainable and there is cause of action for filing the suit for the plaintiffs and decreed the suit without costs and held that the plaintiffs are entitled to 1/5th share of the suit plot and takhta will be prepared accordingly. The Learned trial court also went on to hold that the defendant nos.1 and 2 together, defendant no.5, defendant nos.3 and 4 together and defendant nos.6 and 7 together who are the purchasers of the land allotted to defendant nos.3 and 4; each group of individuals or individual are entitled to 1/5th share and ordered for preparation of the takhta accordingly and it was also ordered that the land which has been sold by the parties, the purchasers will be entitled to have their purchased land in their share and also directed for preparation of a preliminary decree accordingly.
8. Being aggrieved by the judgment and decree passed by the learned trial court, the defendant nos. 6 and 7 filed Title Appeal No.53 of 2003 in the court of District Judge, Palamau at Daltonganj which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.
9. The learned first appellate after considering the submissions before it and the materials in the record framed the sole point for determination for consideration:-
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"Whether the impugned judgment and decree passed by the learned court below are fit to be sustained?
10. The learned first appellate court made independent appreciation of the evidence in the record. The learned first appellate court taking into consideration the deposition of D.W.9- the husband of the contesting defendant-appellant to the effect that sons of Jiokali Kuar got 1/4th share and as admittedly, Jiokali Kuar had two daughters, the learned first appellate court observed that the partition amongst the brothers ignoring his sisters cannot be held to be legal even if it is presumed to have taken place. The learned first appellate court also considered that though the defendant nos.6 and 7 have been claiming exclusive possession over the purchased land but they having not succeeded in proving the same hence, the learned trial court has rightly came to the conclusion that the heirs of Jiokali Kuar were joint and have unity of title and possession. The learned first appellate court on the basis of the evidence in the record did not accept the contention of the plaintiffs that Nakchhedi Mishra predeceased and went on to hold that that Nakchhedi Mishra had not predeceased her mother hence, all the sons and daughters of Jiokali Kuar including Bindhayachal Kuar, vendor of plaintiffs-respondents and defendant nos.3 and 4 sons of Nakchhedi Mishra who are the vendors of contesting defendant nos.6 and 7 will have 1/5th share after the death of Dasrath Mishra. Learned first appellate court further observed that as the plaintiffs have purchased from the original plaintiff Bindhayachal Kuar, his 1/5th share vide Ext. 1/a, so the plaintiffs cannot claim any share in excess of 1/5th share and accordingly, arrived at the conclusion that the share of vendors of the 6 Second Appeal No. 343 of 2004 defendant nos.6 and 7 would be 1/5th also. The learned first appellate court also considered that none other than D.W.4 who is son of defendant no.7- who was the appellant no.2 before the first appellate court admitted, the acquisition of the lands of the plot by P.W.D. which as per the evidence of P.W.3 was 18 decimals. D.W.7- Dhaneshwar Mishra who was the vendor of contesting defendant nos.6 and 7 in paragraph no.7 of his cross-examination admitted that P.W.D. had acquired some land of the plots. So on the basis of the evidence in the record, the learned first appellate court came to the conclusion that after the acquisition of the land by P.W.D., the suit land consisted of 1 acre only and the schedule of the plaint was accordingly amended. Hence, the descendants of each of the three sons and two daughters of Jiokali Kuar will have 1/5th share out of 1 acre land and upon such discussion went on to confirm the judgment and decree passed by the learned trial court and dismissed the appeal.
11. At the time of Admission of this appeal, the following substantial question of law was framed vide order dated 15.03.2005 :-
"Whether the Courts below having held that the contesting defendant- appellant would be entitled to 1/5th share, have committed an error in holding that out of the total area of 1.18 acres of S.P. No.767, 18 decimals of land has been acquired by P.W.D. and in only one acre of the said land, i.e. plaintiff and the contesting defendant would have 1/5th share each, though no document of acquisition or any other cogent evidence of acquisition has been brought on the record?"
12. Mr. R.N. Sahay, learned Senior Advocate appearing for the appellants submits that the learned court below has failed to consider the fact that the entire suit plot consisted of 1.18 acres and without any cogent evidence passed judgment in respect of 1 acre of suit land which 7 Second Appeal No. 343 of 2004 makes the judgment of both the courts below perverse. Hence, it is submitted that the impugned judgment and decree be modified by giving 1/4th share of the property to the defendants out of the entire plot of land of 1.18 acres. Mr. Sahay relied upon the judgment of coordinate Bench of this Court in the case of Pradip Kumar Sharma vs. Dina Nath Sharma & Ors. in S.A. No.93 of 2004 dated 18.08.2004, paragraph no.6 of which reads as under:-
"6. It is somewhat disturbing to find that first appellate courts are not conscious of their duties as final courts of facts while exercising an appellate jurisdiction under Section 96 of the Code of Civil Procedure read with Order 41 of the Code. It is the duty of every appellate Judge to consider properly and for himself, the pleadings and the evidence in the case to come to a conclusion one way or the other. The appellate court is expected to re-apprise the evidence in the case and not merely to say that the trial court had considered the same and he was in agreement with it. In the circumstances, if I am concerned to remand the appeal to the lower appellate court for a fresh decision in accordance with law. I must observe that the responsibility for the same rests solely with the learned appellate Judge. I trust that at least here after the appellate Judge will ensure that he disposes of the First appeals that come before him in a proper manner and as envisaged by Order 41 Rule 31 of the Code of Civil Procedure."
and submits that the learned first appellate court ought to have discussed the pleading and evidence independently and have to come to an independent conclusion on the point which was formulated for decision of the appeal as the first appellate court has clearly formulated the sole point for determination as to whether the judgment and decree passed by the learned court below are fit to be sustained, the same amounts to abdicating of the duty casted upon the first appellate court while exercising the jurisdiction under Section 96 of Code of Civil Procedure read with Order XLI of that Code. Hence, it is submitted that the impugned judgment and decree being not sustainable in law is liable to be set aside and the matter requires to be remanded to the court concerned.
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13. Mr. Manjul Prasad, learned Senior Advocate appearing for the respondents on the other hand defended the judgment and decree passed by both the courts below and relying upon the judgment of Hon'ble Supreme Court of India in the case of G. Amalorpavam & Ors. vs. R.C. Diocese of Madurai & Ors. reported in (2006) 3 SCC 224, paragraph no.9 of which reads as under :-
"9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC."
submits that the question whether in a particular case there has been substantial compliance with the provisions of Order XLI Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. It is then submitted that non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it; if the second appellate court is in a position to ascertain the findings of the lower 9 Second Appeal No. 343 of 2004 appellate court and further submits that in this case the learned first appellate court has well discussed the evidence in the record and has considered each of the submissions made before it by the rival parties and has furnished reasons for accepting or not, the contention made before it, hence, by no stretch of imagination, it can be said that the impugned judgment and decree passed by the learned first appellate court is not non-compliance with the provision of Order XLI Rule 31 of the Code of Civil Procedure. It is further submitted by Mr. Prasad that the learned first appellate court is the final court of facts and the learned first appellate court relying upon the oral testimony of D.W.4 who is none other than the son of defendant no.7 who is also one of the appellants in the second appeal as well as D.W.7 the another witness examined by the defendants as also the testimony of P.W.3, taking into consideration that, in unison all these three witnesses have stated about acquisition of the part of the land by the Public Works Department and consequent upon such undisputed fact, schedule of the plaint was amended and total area of suit land has been reduced to 1 acre only, thus there is no way the courts below could have passed any judgment in the area respect of the area beyond the area for which the suit was filed and in the absence of any evidence that there existed any joint property beyond the 1 acre as mentioned in the schedule of the plaint after its amendment vide order dated 19.07.2000 during the pendency of the suit. Hence it is submitted that this appeal being without any merit be dismissed.
14. Having heard the submissions made at the Bar and after 10 Second Appeal No. 343 of 2004 going through the materials in the record, so far as the contention of the learned counsel for the appellants regarding non-compliance of the provisions under Order XLI Rule 31 of Code of Civil Procedure to the extent that the same renders the impugned judgment and decree vitiated and requires remand of the matter for fresh hearing of the first appeal is concerned, as has been held by the Hon'ble Supreme Court of India in the case of G. Amalorpavam & Ors. vs. R.C. Diocese of Madurai & Ors. (supra) that non-compliance of the provision of Order XLI Rule 31 in all cases may not vitiate the judgment and makes it wholly void.
15. After going through the materials in the record, this Court finds that the learned first appellate court made independent appreciation of the evidence in the record. The learned first appellate court has considered each and every aspect of the submissions made before it i.e. the claim of the defendant nos.6 and 7 that the property is to be shared by only four sons of Jiokali Kuar and 1/4th of the joint property be allocated to the share of each of the branch of the sons of Jiokali Kuar as also the contention of the appellants that the suit is not bad for partial partition of the joint property as well as the other grounds raised by the parties as has been already mentioned in the forgoing paragraphs of this judgment and after such appreciation of the evidence has come to the finding that there was unity of title and interest between the parties to the suit.
16. So far as the judgment of Pradip Kumar Sharma vs. Dina Nath Sharma & Ors. (supra) is concerned, in that case, the learned first appellate court did not discuss the pleadings and evidence 11 Second Appeal No. 343 of 2004 independently to come to any independent conclusion on the points which were formulated for the decisions rather merely said that the learned trial court has considered the questions and the learned first appellate court was in agreement with the conclusion of the learned trial court. Hence, the facts of Pradip Kumar Sharma vs. Dina Nath Sharma & Ors. (supra) is certainly different from the facts of this case. Therefore, the ratio of that judgment is not applicable to the facts of the case.
17. Now coming to the sole substantial question of law as to whether the Courts below having held that the contesting defendant- appellant would be entitled to 1/5th share, have committed an error in holding that out of the total area of 1.18 acres of S.P. No.767, 18 decimals of land has been acquired by P.W.D. and in only one acre of the said land, i.e. plaintiff and the contesting defendant would have 1/5th share each, though no document of acquisition or any other cogent evidence of acquisition has been brought on the record is concerned, this Court after going through the materials in the record finds that the learned first appellate court has given cogent reason by referring to the oral testimony of the P.W.3, D.W.4 and D.W.7 who have all stated about acquisition of the part of the suit land by P.W.D. and the P.W.3 has in no uncertain manner has stated that the area of the land acquired was 18 decimals and consequently, during the pendency of the suit itself, the plaintiffs amended the plaint vide order dated 19.07.2000. The perusal of the record reveals that the defendants never objected to the amendment of the plaint and did not contest the fact during the pendency of the suit that 18 decimals of land have been acquired by P.W.D. and the witnesses 12 Second Appeal No. 343 of 2004 including the D.W.4 who is the son of the appellant no.2 of the second appeal as well as D.W.7 who was another witness who testified to the fact that there has been acquisition on the part of the original suit land of 1.18 acres by P.W.D., this Court did not find any error having been committed by either of the courts below in holding that the defendant nos.6 and 7 who are appellants before the first appellate court as well as before this Court in this second appeal were entitled to 1/5 th share of 1 acre of land only. Under such circumstances, the sole substantial question of law is answered in the negative.
18. In view of the discussions made above, this Court of the considered view that there is no merit in this appeal.
19. Accordingly, this appeal is dismissed on contest but under the circumstances without any costs.
20. Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 30th November, 2022 AFR/ Sonu-Gunjan/-
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