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2012 DIGILAW 1547 (JHR)

Dhaniram Mahto v. Most. Rango Devi

2012-10-12

N.N.TIWARI

body2012
ORDER This appeal is against the judgment and decree dated 25th February. 2008 passed by Additional Judicial Commissioner. Fast Track Court. Khunti in Title Appeal No. 13 of 1997 whereby learned Lower Appellate Court has dismissed the title appeal upholding the judgment and decree dated 30th November, 1996 passed by Sub Judge-III in Partition Suit No. 10 of 1989. 2. The appellants were the defendants in Partition Suit No. 10 of 1989. 3. The said suit was filed by the plaintiffs/respondents claiming their one third share in the suit property. The plaintiffs' case is that the suit property belongs to the common ancestor-Khedu Mahto. Khedu Mahto had four sons namely Dhani Mahto. Gangu Mahto. Bayar Mahto and Lachhu Mahto. Khedu Mahto and his son Bayar Mahto died before the revisional survey. After their death the suit land was inherited jointly by Dhani Mahto. Gangu Mahto' and Lachhu Mahto. Bayar Mahto died leaving behind his widow Most. Binod and two daughters namely Ghashini Devi and Domani Devi. The survey record of right was prepared in different khewats. Khewat No. 5/9 was recorded in the name of Most. Binod widow of Bayar Mahto. Said Most. Binod died in 1944 and after her death the said portion of the property recorded in khewat No. 5/9 devolved upon the surviving sons of Khedu Mahto. The plaintiffs have one third share in the suit property. The parties were separately cultivating their lands but it was not convenient for them to cultivate the lands without partition by metes and bound. The plaintiffs thus requested the defendants to partition the suit land but they avoided. Hence the said suit was rued for the aforesaid relief. 4. The' suit was mainly contested by the sons of Most. Binod. It was inter alia stated that the land of khewat No. 5/9 was exclusively recorded in the name of Most. Binod and as such the same cannot be the subject-matter of partition. The said property after the death of Most. Binod was inherited by her daughters and after their death by the defendants Nos. 50 and 51 the descendants of said Ghasini Devi and Domani Devi. It has been further stated that Ghashini Devi was married to Jogu Mahto. who used to live in the house of Most. Binod. Said Jogu Mahto died leaving behind his sons Puran Mahto. who was in continuous possession over the suit land. 50 and 51 the descendants of said Ghasini Devi and Domani Devi. It has been further stated that Ghashini Devi was married to Jogu Mahto. who used to live in the house of Most. Binod. Said Jogu Mahto died leaving behind his sons Puran Mahto. who was in continuous possession over the suit land. His possession is noted in the remarks column of the khatiyan prepared in the recent survey. Puran Mahto died leaving behind two sons namely Gobardhan Mahto and Harihar Mahto. After the death of Gobardhan, Mahto the said defendants inherited the suit property and they have been continuously cultivating the said land of khewat No. 5/9. The partition suit is thus not maintainable in respect of the land of khewat No. 5/9. 5. On the basis of the said pleadings several issues were framed by the learned trial Court. 6. The plaintiffs led their evidences but the defendants did not adduce any evidence. The defendants after filing of the written statement did not take any step nor they appear for cross-examining the P.Ws. 7. Learned trial Court on thorough discussion and appraisal of the facts and evidences on record came to the finding that there was unity of title and possession amongst the parties in respect of the suit land and that the plaintiffs are entitled to the relief’s prayed for. Learned trial Court decreed the plaintiffs' suit. 8. The defendant Nos. 50 and 51 filed title appeal against the said judgment and decree in the Court of learned Judicial Commissioner Ranchi, being Title Appeal No. 13 of 1997. The said title appeal was finally heard and disposed of by the Additional Judicial Commissioner. Fast Track Court. Khunti. 9. Learned Lower Appellate Court heard the parties and considered the grounds taken by• the appellants. After careful perusal of the record and appraisal of the facts and evidences learned Lower Appellate Court came to the finding that there was no illegality or infirmity in the judgment and decree of the learned trial Court. Learned Lower Appellate Court also took notice of the fact that the plaintiffs proved their case whereas the defendants/appellants did not adduce any evidence. They did not even turn up for cross-examining the witnesses of the plaintiffs. Learned Lower Appellate Court thus upheld the findings of the learned trial Court and dismissed the title appeal. 10. Learned Lower Appellate Court also took notice of the fact that the plaintiffs proved their case whereas the defendants/appellants did not adduce any evidence. They did not even turn up for cross-examining the witnesses of the plaintiffs. Learned Lower Appellate Court thus upheld the findings of the learned trial Court and dismissed the title appeal. 10. In this second appeal the judgment and decree of the learned Lower Appellate Court has been assailed on the ground that the same has been passed without considering the fact that the land which was exclusively recorded in the name of Most. Binod in khewat No. 5/9 was her separate property and the plaintiffs have no right or share in the suit property. 11. Learned counsel for the appellants submitted that since' khewat No. 5/9 was prepared exclusively in the name of Most. Binod widow of Bayar Mahto learned Court below should have held that the suit property was the exclusive property of the said Most. Binod inherited by defendant Nos. 50 and 51 and the claim of the plaintiffs should have been dismissed. 12. I have heard learned counsel for the appellants and perused the judgments and decrees of the Courts below. 13. The plaintiffs have claimed that the suit land including the land of khewat No. 5/9 was ancestral land belonging to common ancestor Khedu Mahto. The said fact has not been denied or disputed by the defendants/appellants. The portion of the ancestral land was recorded under khewat No. 5/9 in the name of Most. Binod. The said Most. Binod died in the year 1944 and after her death the property being a portion of ancestral property devolved upon the male heirs of her husband. The claim of the appellants that even after the death of Most. Binod the property remained in the hands of the defendants have not been substantiated by any peace of evidence. 14. Learned trial Court as well as learned Lower Appellate Court on thorough scrutiny and consideration of the material and evidences have come to the concurrent finding that there is unity of title and possession amongst the parties in respect of the suit property and that the plaintiffs are entitled to partition of their share as claimed by them. 15. The findings are based on evidences on record. 15. The findings are based on evidences on record. I find no infirmity or illegality in the judgment and decree of learned Court below giving rise to any substantial question of law. 16. This appeal is accordingly dismissed. Appeal dismissed.