Jharkhand High Court
Subhash Chandra Sharma vs Suresh Chandra Sharma on 18 October, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 54 of 2024
1. Subhash Chandra Sharma, aged about 49 Years,
2. Kamal Kumar Sharma, aged about 45 Years,
Both sons of Late Purnamal Sharma,
Both residents of Janta Market, Chhotagovindpur, P.O. & P.S.-
Chhotagovindpur, District East Singhbhum, Jamshedpur.
... Defendants/Appellants/Appellants
Versus
1. Suresh Chandra Sharma, S/o. Late Purnamal Sharma, resident Janta
Maket, Chhotagovindpur, P.O. & P.S.- Chhotagovindpur, District-
East Singhbhum, Jamshedpur.
... Plaintiff/Respondent/Respondent
2. Bimal Kumar Sharma, S/o. Late Purnamal Sharma, resident Janta
Maket, Chhotagovindpur, P.O. & P.S.- Chhotagovindpur, District-
East Singhbhum, Jamshedpur.
... Defendant/Performa Respondent/Performa Respondent
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CORAM: HON'BLE THE CHIEF JUSTICE
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For the Appellants: Mr. Jitesh Kumar, Advocate
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03/Dated: 18.10.2024
1) This Second Appeal is preferred by the defendants challenging the judgment and decree dated 11.03.2024 in Civil Appeal No.71 of 2024 of the District Judge-V, East Singhbhum, Jamshedpur, confirming the judgment and decree dated 17.07.2023 in Original (Partition) Suit No.42 of 2022 of the Civil Judge (Senior Division)-III, Jamshedpur.
2) The said suit had been filed by the respondent seeking partition of the plaint schedule property and allotment of 1/4th share therein to him.
3) He alleged that the property is the joint property of himself and the appellants-defendants and they had bought the property in an auction sale conducted by the Bihar State Financial Corporation after
-1 of 5- M/s. Hindustan Ancillary Industries failed to discharge their liability to the mortgagor, i.e., the said Corporation. It was contended that a sale order was issued in favour of the purchasers and a sale-deed dt. 03.03.2010 was executed for a consideration of Rs.15,00,000/- and possession was granted to the purchasers who jointly constructed 28 rooms on it. It was contended that the respondent and the appellants had also built 40 rooms after renovating the dilapidated building and were collecting rent from the property, but the appellants had started misappropriating the rent collected without giving the respondent his share.
4) The appellants filed written statement contending that the suit was barred by limitation and principles of estoppel, waiver and acquiescence. They also disputed the description of the property. They contended that the suit schedule property was the joint property of only the appellants and that the respondent had been allotted his share at a Quarters No.6/2/3, Chhota Govindpur, which had been transferred to the wife of the respondent by name Sangita Sharma in lieu of the share of the respondent in the suit land. It was also contended that the respondent was never in possession of the suit land and there was no question of joint construction of 28 rooms over the suit property and he had also never invested any amount for the construction of the rooms.
5) In the Trial Court, the respondent examined himself and marked the certified copy of the sale deed dated 03.03.2010 as Exhibit 1 and one Basgit Parcha as Exhibit 2.
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6) The appellants examined DW.1 to DW.3 and marked two exhibits including the original sale deed dated 03.03.2010 and the document called Basgit Parcha issued in favour of the wife of the respondent in respect of certain land.
7) After appreciating the evidence on record and considering the contentions of the parties, the Trial Court rejected the plea of the appellants that the respondent had orally relinquished his share in the suit property. It also held that the appellants had not brought on record any documentary evidence showing transfer of property in the name of the respondent's wife by their father. It also referred to the sale deed dt. 03.03.2010, in which the respondent was shown as a purchaser along with the appellants of the subject property, and noted that the sale-deed did not describe any of the purchasers as having any exclusive right over the suit property. It therefore held that the respondent was a co-owner along with the appellants and possession of the property was jointly conveyed to all of them. Therefore, by applying Section 45 of the Transfer of Property Act, 1882 it held that the suit schedule property was the joint property of the respondent and the appellants and each of them have to be presumed to be having equal joint interest therein. Accordingly, it decreed the suit for partition.
8) Challenging the same, the appellants filed Civil Appeal No.71 of 2023 before the District Judge, Jamshedpur. The appellants had reiterated their defence raised in the Trial Court. However, the First Appellate Court also held that there is no merit in their contention in view of the sale-deed dated 03.03.2010 which showed that there were
-3 of 5- four purchasers, i.e., the respondent and the appellants, of the subject property and they were all joint owners. It also held that there was no relinquishment of his right by the respondent at any point of time and Exhibit 2, i.e., Basgit Parcha, indicated that there was a transfer exclusively to the wife of the respondent. It, thus, confirmed the findings of the Trial Court.
9) Though counsel for the appellants sought to contend that the respondent had filed the suit for partial partition and it was not maintainable, no such issue was got framed by the appellants before the Trial Court and such a point was not argued either before the Trial Court or before the First Appellate Court.
10) The sale-deed, under which the subject property has been purchased from the Bihar State Financial Corporation, specifically mentions that the respondent along with the appellants had paid consideration and obtained title and possession of the subject property. Therefore, he has to be taken to be a co-owner along with the appellants.
11) The plea of oral relinquishment by the respondent of his right in the suit schedule property in lieu of transfer of title of some land in favour of respondent's wife cannot be countenanced, because the law does not recognize an oral relinquishment in absence of a registered document.
12) Therefore, the concurrent findings of the Trial Court as well as the First Appellate Court do no warrant any interference by this Court
-4 of 5- in exercise of its limited jurisdiction under Section 100 of the Code of Civil Procedure.
13) Accordingly, the appeal fails and is dismissed. However, there shall be no order as to costs.
(M.S. Ramachandra Rao, C.J.) Manoj/-
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