Gangia Mahatoin vs (A) Moti Reshmi Devi on 21 November, 2022

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Jharkhand High Court

Gangia Mahatoin vs (A) Moti Reshmi Devi on 21 November, 2022

1. (a) Moti Reshmi Devi,W/o Late Tribeni Mahto 1 (b) Munna Matho, s/o Late Tribeni Mahto 1 (c ) Devi Kumar Yadav, S/o Late Tribeni Mahto 1 (d) Shivanand Mahto, S/o Late Tribeni Mahto All residents of village- Thutha Simar House No. 3, P.O.- Upper Bahiyar, P.S.- Chitra, Dist.- Deoghar, PIN- 815353

2. Mohan Lal Mahato, resident of village- Thutha Simar, P.S.- Sarath, Subdivision and Dist.- Deoghar ......Defendant 1st party/Respondent 2nd party/Respondent 1st party

3. Jagoo Mahato

4. Rabi Mahato Nos. 3 and 4 sons of Late Ram Prasad Mahto

5. Chandra Mauleshwar Mahato

6. Jairam Mahato Nos. 5 and 6 minor sons of Rabi Mahato, represented through their father and natural guardian Rabi Mahato, residents of village- Nayadih, Tq. Bargania, P.S.- Madhupur, Subdivision, and District - Deoghar

7. Kabutri Mahatwain, daughter of Late Ram Prasad Mahato and wife of Mahabir Mahato, resident of Mauza - Jariari, P.S.- Madhupur, Sub- division and District- Deoghar

8. Nuneshwari Mahatowain, daughter of Late Ram Prasad Mahato and wife of Darshan Mahto, resident of village- Jariari, P.S.- Madhupur, Subdivision and District- Deoghar ... Respondent 3rd party/Defendant 2nd party/Respondent 2nd party

9. Mitu Mahato, son of Late Padu Mahato 10 (a) Smt. DulariDevi, W/o Late Shahdeo Mahto 10 (b) Ramdeo Mahato 10 (c) Sugdeo Mahato 10 (d) Tulsi Mahato 10 (e) Manohar Mahato 10 (f) Hira Lal Mahato Nos. 10(b) to 10(f) S/o Late Shahdeo Mahato, All residents of village- Nayadih, P.O.- Ramchandrpur, Subdivision- Madhupur, Dist.- Deoghar 1 SA No. 129 of 1991 10 (g) Kanti Devi W/o Dhaneshwar Mahato, d/o Late Shahdeo Mahato, R/o village- Nowadih, P.O.- Karati, P.s.- Madhupur, Subdivision- Madhupur, Dist.- Deoghar 10 (h) Smt. Chunna Devi, W/o Ghayan Mahato, D/o Late Shahdeo Mahato, R/o village + P.O. - Kairidih, P.S.- Jasidih, Sub-division and District- Deoghar 10 (i) Zira Devi, W/o Sri Suresh Yadav, d/o Late Shahdeo Mahato, R/o Village- Gidhiya, P.O.- Bhojpur, P.S.- Jasidih, Sub-division and District- Deoghar

11. Ramdeo Mahato

12. Sukhdeo Mahato

13. Tulsi Mahato

14. Bacha Mahato, minor sons of Sahadeo Mahato, represented through their father and natural guardian Sahadeo Mahato (Appellant no. 2) all by faith Hindu, by caste- Yadav, by profession- cultivators, resident of Mouza Nayadih, Tq. Bargania, P.S.- Madhupur, Subdivision and District - Deoghar ....... Defendants 4th party

15. (Deleted)

16. Pochan Mahato, son of Late Akloo Mahato

17. Tarni Mahato,

18. Nunwa Mahto, both minor sons of Pochan Mahato nos. 17 and 18 represented through their father and natural guardian Pochan Mahato, respondent no. 16, all by Profession cultivator, by religion Hindu, by caste - Yadav, resident of Mouza Nayadih, Tq. Bargoina, P.S.- Madhupur, Sub-division and District- Deoghar ....... Respondent 4th party

19. Nakul Mahato, son of Late Bhirog Mahato, by religion - Hindu, by caste - Yadav, by profession- Cultivator, resident of Mouza Bakulia, Tq. Bargonia, P.S.- Madhupur, Sub-division and district- Deoghar ....... Respondents 5th party / Defendant 4th party / Respondents For the Appellant :Mr. Mahesh Prasad Sinha, Adv.

Mr. Sunil Kr. Mahto, Adv.

For the Respondents : Mr. Aashish Kumar, Adv.

Mr. Kishore Kumar Mishra, Adv.


                                     PRESENT

             HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

By the Court:-      Heard the parties.

2. This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 21.12.1990 passed by learned Additional District Judge, II, Deoghar in Title Appeal no. 69 of 1975 / 38 of 1990 by which learned First Appellate Court by the judgment of reversal has allowed the appeal and set aside the 2 SA No. 129 of 1991 judgment and decree passed by the 4th Additional Subordinate Judge, Deoghar (S.P.) in Title Suit no. 199 of 1970 / 5 of 1975 whereby and whereunder, learned trial court has decreed the suit of the plaintiff for partition and held that the plaintiff is entitled for half share of the suit land.

3. The case of the plaintiff in brief is that the parties to the suit are Hindu and they are government by Mitakshara school of Hindu law and they are the descendents of common ancestor Lakhu Mahato. It is the admitted case of the plaintiff that he has sought partition of a portion of joint family property while excluded the remaining joint property in order to avoid impleading numerous parties and as the other joint family property usually remain, barren. The plaintiff has filed the suit for partition with half of the share. In their joint written statement, the defendant nos. 14 and 15, have pleaded that several coparceners of the joint family have not been impleaded in the suit. It is further pleaded that the plaintiff has no title over the suit land. In the joint written statement, the defendant nos. 1 and 2, admitted the genealogy and they submitted that they never objected to the partition of the suit property.

4. In view of the rival pleadings of the parties, learned trial court framed the following five issues :-

(1) Is the suit as framed maintainable?

(2) Is the suit bad for mis-joinder or non-joinder of parties? (3) Has the plaintiff valid cause of action for the suit? (4) Has the court fee been paid sufficient?

(5) Is the plaintiff entitled to seek partition in the schedule I properties, if so, what is the share of the plaintiff that he is entitled?

5. Learned trial court first took up issue no. 4. After considering the materials available in the record, the learned trial court came to the conclusion that sufficient court fees has been paid. Thereafter, learned trial court took up issue no. 5 and came to the conclusion that the plaintiff is entitled to half share of the suit property. Learned trial court disposed of the issue no. 1 as not pressed and answered the issue no. 2 in 3 SA No. 129 of 1991 negative by holding that the plea of non-joinder of the necessary party, also cannot be made available. Learned trial court thereafter, took up issue no. 3 and came to the conclusion that there is valid cause of action for the plaintiff to file the suit. Lastly, learned trial court took up issue no. 5 and held that the plaintiff has title of the suit land to the extent of half of it and she was entitled to seek partition in respect thereof and decreed the suit.

6. Being aggrieved by the judgment and decree passed by learned trial court, the defendant filed Title Appeal No. 69 of 1975 / 38 of 1990 in the court of learned District Judge, Deoghar and same was ultimately heard and disposed of by learned First Appellate Court. Learned First Appellate Court made an independent appreciation of the evidence in the record and considering the fact that the suit was admittedly filed for partial partition of the joint family property as has categorically been pleaded by the plaintiff in paragraph 5 of the plaint, the suit for partial partition was not maintainable and also observed that the evidence in the record do not show joint possession of the suit land by the plaintiff and the defendant and the suit land has exclusively been in possession of the defendant-appellant and by thus observing learned First Appellate Court allowed the appeal and dismissed the suit.

7. At the time of admission of this Second Appeal, the following substantial question of law was formulated vide order dated 14.11.1991 :-

"Whether in the circumstances of the case, the court below could have drawn an inference in law of adverse possession by the defendants 14 and 15 (fourth party) and that the title of the appellant has extinguished?"

8. Mr. Mahesh Prasad Sinha, learned counsel for the appellant submits that learned First Appellate Court did not appreciate the evidence in record in its proper perspective and erroneously held that the suit is bad for non-joinder of the 4 SA No. 129 of 1991 party but it is fairly submitted by Mr. Sinha that none of the courts below, has drawn any inference of adverse possession by the defendant nos. 14 and 15 and what the learned First Appellate Court has observed is that the defendant nos. 14 and 15 have exclusive possession over the suit property, hence, it is submitted that the impugned judgment and decree passed by the learned First Appellate Court be set aside and the judgment and decree passed by the learned trial court be restored.

9. Mr. Aashish Kumar, learned counsel for the respondents on the other hand defended the impugned judgment and decree and submits that the substantial question of law formulated in this appeal is erroneous in itself as neither there is any observation by either of the courts below nor any inference of law to the effect that the defendant nos. 14 and 15 have perfected their title by way of adverse possession, has been drawn by either of the courts below. Learned counsel for the respondents relies upon the judgment of the Hon'ble Supreme Court of India in the case of Kenchegowda (since deceased) by legal representatives vs. Siddegowda @ Motegowda reported in (1994) 4 SCC 294, paragraph 16 of which reads as under:

"16. Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored. However, there shall be no order as to costs." (Emphasis supplied) and submits that since it is a settled principle of law that the suit for partial partition in the absence of inclusion of other joint family properties and the impleadment of the other co-

5 SA No. 129 of 1991

sharers is not warranted in law, hence, learned First Appellate Court has rightly allowed the appeal and set aside the judgment and decree of learned trial court which was passed in respect of the partial partition of the joint family property and since it is the admitted case of the plaintiff in paragraph 5 of the plaint itself that it has not impleaded all the coparceners of all the joint property of the family, so learned First Appellate Court has rightly held that the suit is bad for non-joinder of the necessary party. Mr. Ashish Kumar next relies upon the judgment of R. Mahalakshmi vs. A.V. Anantharaman & Others reported in (2009) 9 SCC 52 wherein the Hon'ble Supreme Court of India in paragraph 22 and 23 of which reads as under :-

"22. In the light of the partition deed available on record, no further proof thereof was required, more so, when the plaintiff himself relied on the same. According to us, this aspect of the matter has not been considered by the courts below. Thus, after having considered the submissions of the learned counsel for the parties and after perusal of the records, we are of the considered opinion that the matter deserves to be remanded to the trial court on the following grounds:

(1) That all the properties that were inherited by the father of the parties by virtue of registered deed of partition dated 27-4-1954 have not been included in the partition suit.

(2) The appellant herein had taken a consistent stand right from the very beginning that unless all the properties are included in the plaint, the suit would be bad and partial partition cannot be effected.

23. The courts below committed an error in giving much weight to the legal notice sent by the appellant and still ignoring the documents filed and admitted by the parties wherein it was clearly mentioned that apart from the property for which partition was claimed by Respondent 1-plaintiff, there were other properties as well."

10. It is next submitted by learned counsel for the respondents that in view of the fact that the plaintiff has claimed the partial partition of the suit, hence, learned First Appellate Court has rightly allowed the appeal and this Second Appeal being without any merit be dismissed.

11. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the substantial question of law is concerned, the part of it, is 6 SA No. 129 of 1991 erroneous to the extent of drawing inference in law of adverse possession of the defendant nos. 14 and 15, as submitted by both the learned counsels for the appellant and as well as the respondents at the time of hearing of the appeal but so far as the other part of it, whether the exclusive possession of one of the coparceners can extinguish the title of any coparcener is concerned, the same is a valid substantial question of law, to be answered in the appeal. It is a settled principle of law that the possession of the joint family property by a member is not adverse to other members, as has been held by the Hon'ble Supreme Court of India in the case of Smt. Kamala Devi vs Sh. Vasdev reported in 1995 AIR SCW 970, para 16 of which reads as under :

"16. On behalf of the appellant it has been contended that this is a clear authority for the proposition that under the provisions of the Delhi Rent Control Act, the Rent Controller has no power to condone the failure of the tenant to pay arrears of rent as required under Section 15 (1) of the Delhi Rent Control Act. The judgement in the case of Ram Murti v. Bhola Nath, (1984) 3 SCC 111 : (AIR 1984 SC 1392), which took a contrary view, was wrongly decided by another Bench of two Judges. In that case, reliance was wrongly placed on the judgement in the case of Shyamcharan Sharma v. Dharamdas, (1980) 2 SCC 151 : (AIR 1980 SC 587) in which the provisions of the Madhya Pradesh Accommodation Control Act, 1961 fell for consideration."

12. The relationship between the plaintiff and the defendant is not disputed and it is also not disputed that the majority of the suit property is the joint family property of both the parties and the defendant nos. 14 and 15 have not set up any case that any portion of the property claimed by the plaintiff to be joint family property is the self-acquired property.

13. Under such circumstances, this court has no hesitation in holding that the learned First Appellate Court has committed an error of law by holding that the possession of the defendant nos. 14 and 15 over the suit land amounts to cessation of unity of title and possession of the plaintiffs and the defendants over the suit land. Accordingly, the said portion of the findings of the learned First Appellate Court is set aside. Since it is a settled principle of law that partial 7 SA No. 129 of 1991 partition of the suit in absence of some of the coparceners of the entire joint family is not sustainable in law, hence, this court is of the considered opinion that the matter deserves to be remanded to the learned trial court on the following grounds:-

(i) All the joint family properties were not included in the plaint of the suit for partition.

(ii) The defendant nos. 14 and 15 had taken a consistent stand right from the very beginning that unless all the properties are included in the plaint, the suit will be bad for non-joinder of necessary parties as partial partition cannot be effected.

14. Further, learned trial court has failed to consider this aspect and learned First Appellate Court has committed an error of law by holding that even if the relationship between the plaintiff and the defendant no. 14 and 15 as well as the other defendants are admitted and it is not the case of any of the parties to the suit that they have acquired any self-acquired property, hence, learned First Appellate Court ought not have held that mere exclusive possession of the defendant over the joint family property amounts to absence of unity of title and possession.

15. In the light of the foregoing observation, the judgment and decree passed by both the courts below are hereby set aside and quashed and the matter is remitted to learned trial court for giving an opportunity to the parties, to amend their respective pleadings by incorporating all the joint family properties of the suit and by impleading all the coparceners of the joint family properties and also to make corresponding amendments in the plaint and to lead further evidence in support of the amended pleadings by giving them reasonable time, if the plaintiffs fail to amend the pleadings within the time stipulated by the learned trial court, the learned trial court is directed to dismiss the suit for having been filed for partial partition of the joint family property. If the parties amend their pleading accordingly, then the trial court is directed to pass the judgment after appreciating the 8 SA No. 129 of 1991 additional pleading and the evidence adduced thereon. Since the matter is an old one, the parties are directed to appear before the learned trial court on 09.01.2023 to take instruction from the learned trial court as to by what steps, the plaintiff has to amend his pleading.

16. The learned trial court is directed to make all endeavors to deliver the judgment within six months from the date of pleading of the parties. The sole substantial question of law is answered in the affirmative by holding that learned First Appellate Court could not have drawn an inference that the exclusive possession of the defendant nos. 14 and 15 over the suit land amounts to absence of unity of title and possession and impliedly the defendant no. 14 and 15 perfected their title by way of adverse possession over the suit property which is admittedly the joint family property and thus, the title of the plaintiff has extinguished though such words of adverse possession by the defendant nos. 14 and 15, as well as extension of the time by the appellants has not been specifically mentioned in the judgment of the learned First Appellate Court.

17. The appeal stands allowed to the extent mentioned hereinabove.

18. Looking to the facts of the case, the parties to bear their respective costs.

19. 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 21st November, 2022 Smita/AFR 9

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