Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 704 (JHR)

Kedar Sao v. Panpati Devi

2004-07-15

N.N.TIWARI

body2004
ORDER Narendra Nath Tiwari, J. 1. This second appeal arises out of a partition suit. The defendant is the appellant/appellant. The case of the plaintiffs was that the suit land was recorded in the names of Ramsharan Sao, Hanhach Sao, Sohar Sao and Mohar Sao under Khata No. 28 of Village Bedani Khurd. The land of Khata No. 73 of Village Tarhanshi was recorded in the name of Ramsharan Sao, Sohar Sao and Mohar Sao, The land of Khata No. 40 of Village Tarsansi was recorded in the name of Deonath Sao. The land of Khata No. 23 of village Bishun-pur was recorded in the name of Sohar Sao and Ramshanran Sao- The land of Khata No. 14 of village Nawadih was recorded in the name of Ramsharan Sao, Hanhach Sao, Aliyar Sao and Karam Sao, 2. According to the plaintiffs the said land were already partitioned among the recorded tenants Ramsharan Sao and others. The suit land fully described in the schedule of the plaint, was exclusively allotted to Ramsharan Sao in partition. Ramsharan Sao had three sons, namely. Tapasi Sao, Hargodan Sao. and Adalati Sao. Hargodan Sao died leaving behind Kedar Sao. defendant No. i before the death of Ramsharan Sao. Tapasi Sao, Adalati Sao and Kedar Sao jointly inherited the land of Ramsharan Sao. Tapasi Sao died leaving behind two sons, namely, Fagu Sao and Khelawan Sao. Adalati Sao also died leaving behind widow Jhalo Sahun and three daughters, namely. Bhikhani Sahun. Rekani Sahun and Mumeshari Sahun who are the plaintiff. As Adalati Sao had no male issue, the plaintiffs inherited his property. According to the plaintiff Kedar Saw defendant No. 1 got a deed of gift executed in his name by Jhalo Sahun in respect of suit by playing fraud This fact became known to husband of Rekani Sahun on 25.6.1987 and thereafter he obtained a copy of the gift and on the basis of said gift he came to know about fraudulent act which was obviously to deprive the daughters from their share. According to the plaintiffs the suit lands are joint among the heirs of Ramsharan. 3. Defendant No. 1, Kedar Sao contested the suit by fling the written statement, stating inter alia, that after the death of Ramsharan Sao there had been a family arrangement and partition in the family of Tapasi Sao, Hargodan Sao and Adalati Sao. According to the plaintiffs the suit lands are joint among the heirs of Ramsharan. 3. Defendant No. 1, Kedar Sao contested the suit by fling the written statement, stating inter alia, that after the death of Ramsharan Sao there had been a family arrangement and partition in the family of Tapasi Sao, Hargodan Sao and Adalati Sao. Hargodan Sao and Adalati Sao remained joint while Tapasi became separate. Kedar Sao was then a child in the lap of her mother-Bhukhani Sahun, widow of Hargodan Sao, she was of tender age. Hence she married to her Dewar Adalati Sao, and out of the said wedlock one daughter Bindhayachali was born. Adalati Sao died in the year, 1954 leaving behind two widows Jhalo Sahun and Bhukhani Sahun and four daughters. As Adalati Sao died in 1954, hence the daughter has no right to inherit the property. The property was inherited only by his two widows Jhalo Sahun and Bhukhani Sahun: Bhukhani Sahun died in the year, 1975 and Jhalo Sahun died in 1987. Jhalo Sahun transferred her entire interest in the suit property in favour of defendant No. 1 by executing deed of gift on 23.6.1987 and since then defendant No. 1 is coming in possession of the suit property. The said defendant pleaded that there was no unity of title and possession between the plaintiffs and him and so the suit for partition was not maintainable. 4. On the basis of said pleadings, the trial Court framed several issues. The issue No. 3 was as to whether there was unity of title and possession between the parties and issue No. 4 was; whether the deed of gift executed by Jhalo Sahun in favour of Kedar Sao was void, illegal and not binding on the plaintiffs and whether Adalati Sao died in the year 1954 or in the year 1981. 5. Both the parties led documentary as well as oral evidence and after through consideration of the evidence on record, the trial Court decided the said issues in favour of the plaintiffs holding that Adalati Saw died sometime in the year, 1981 and there was unity of title and possession between the parties. However, it was held by the trial Court that the deed of gift executed by Jhalo Sahun was valid to the extent of her share. The suit was accordingly decreed in that term. 6. However, it was held by the trial Court that the deed of gift executed by Jhalo Sahun was valid to the extent of her share. The suit was accordingly decreed in that term. 6. The defendant preferred regular appeal against the said judgment and decree of the trial Court which was registered as Title Appeal No. 3/2000. The said appeal ultimately came to be heard and decided by learned 7th Addl. District Judge, Palamau. Before the lower appellant Court, the appellants challenged the validity of almost all the findings recorded by the trial Court. The lower appellate Court thus considered the case as a whole framing the point as to whether the trial Court has committed errors in appreciating the evidences in coming to the findings. In that view the lower appellate Court has himself appraised all the documentary as well as and oral evidences adduced by the parties and after considering the evidence materials on record and provision of law thoroughly came to the conclusion that there was absolutely no error in the judgment and decree of the trial Court including the conclusion that Adalati Sao died in the year, 1981. It was further held that when Adalati Sao died after coming into force of the Hindu Succession Act. 1956, then three daughters of Adalati Sao inherited right, title and interest in his property and allowed the appeal. The defendant/appellant/appellant has preferred this appeal challenging the said Judgment and decree. 7. Mr. L.K. Lal learned counsel appearing on behalf of appellant submitted that the judgments and decrees of the Court below are not based on correct appraisal of evidences. For determining the year of death of Adalati Sao. the Courts below have taken into consideration the voter list-which cannot be said to be a reliable documentary evidence to prove his death. Further, that there was no basis for disbelieving the case of the defendants regarding the share of Bhukhani Sahun who married Adalati Sao after death of Har-godan Sao. Having heard the learned counsel for the parties and perusing the judgments and decrees of both the Courts below. 1 find that the finding regarding the year of death of Adalati Sao is not only based on the voter list but also on other evidences on record along with the voter list. Having heard the learned counsel for the parties and perusing the judgments and decrees of both the Courts below. 1 find that the finding regarding the year of death of Adalati Sao is not only based on the voter list but also on other evidences on record along with the voter list. So far as the share of Bhukhani Sahun is concerned, that issue has also been considered and decided by both the Courts below on the basis of evidences and materials on record. Since there are concurrent findings of facts recorded by both the Courts below. I find no error attracting any substantial question of law, to be considered and decided in this appeal. This appeal is, accordingly, dismissed.