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2023 DIGILAW 4 (JHR)

Nityananda Mahto v. Khogen Mahato

2023-01-02

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 04.12.2015 passed by the learned District Judge-V, Jamshedpur in Title (P) Appeal No. 26/2009 whereby and where under, by the said judgment of concurrence, the learned first appellate court has dismissed the appeal and upheld the judgment and decree passed by the learned trial court being the court of Subordinate Judge-VI, East Singhbhum, Jamshedpur in Title (P) Suit No. 80 of 2003 dated 28.09.2007. 3. The case of the plaintiffs in brief is that the plaintiffs and the defendants are co-sharers and descendants of common ancestor Budhu Mahto and they are governed by Mithakshara School of Hindu law. The suit property is still joint at the time of filing of the suit. Bistu Mahto was the karta of the family and all the documents in respect of the suit property were in his possession and he was looking after the affairs of the joint property and now these documents are in possession of the grandsons of Bistu Mahto who are defendant nos. 1 and 2. It is the further case of the plaintiffs that due to expansion of the family, they became separate in mess but the lands are still joint amongst the parties to the suit and parties are cultivating the suit land according to their convenience. The defendant nos. 1 and 2 have disposed of the valuable lands of the family without the consent of the plaintiffs and caused irreparable loss to the plaintiffs. So it became impossible for the plaintiffs to continue in jointness. The plaintiffs claimed their 1/9th share i.e. 1/18th share each of the suit property. 4. The contesting defendants being the defendant nos. 6, 7 and 8 challenged the maintainability of the suit on various technical grounds including non-joinder of necessary parties being the persons who have purchased the property from these defendants. They denied the jointness of the suit property though they admitted the genealogy. These defendants pleaded that the suit property has been partitioned in the year 1935 and the three sons of Budhu Mahto got their respective shares and the sons of late Kisto Mahto being Iswar Mahto, Anant Mahto and Badan Mahto came in possession of plot nos. 6, 7 and 8 of khata no. These defendants pleaded that the suit property has been partitioned in the year 1935 and the three sons of Budhu Mahto got their respective shares and the sons of late Kisto Mahto being Iswar Mahto, Anant Mahto and Badan Mahto came in possession of plot nos. 6, 7 and 8 of khata no. 29 measuring about two acres of land of mouza-Bagalgora. These defendants further pleaded that since the property has been partitioned in the year 1935, so, separate possession of the co-sharers has been shown in the record of right of the year 1937 in the remarks column. These defendants denied that Bisto Mahto was ever the karta of the family or being in possession of the document of the suit property by Bisto Mahato or his grandsons. 5. On the basis of rival pleadings of the parties, the learned trial court framed the following five issues: (I) Is the suit as framed maintainable and has the plaintiff valid cause of action for the same? (II) Is the suit suffers from defect of parties? (III) Is there any unity of title and possession between the parties? (IV) Is the plaintiff entitled to 1/18th share each in the suit property as claimed? (V) To what other relief and reliefs the plaintiff are entitled for? 6. The learned trial court first took up issue nos. (III) and (IV) together and after considering the evidence in the record came to the conclusion that the earlier partition in respect of the property has already taken place between the parties hence, the claim of jointness of title and possession of the plaintiffs fails and since there is no unity of title, possession and interest between the parties with respect to the suit land hence, the plaintiffs are not entitled to get any share in the suit property. Thereafter, the learned trial court took up issue nos. (I) and (II) together and held that the suit is bad for non-joinder of necessary party, being the persons who as per the claim of the plaintiffs having been purchased the portion of the suit land from the defendants and also came to the conclusion that there is valid cause of action for the plaintiffs to file the suit. Lastly, the learned trial court took up issue no. (V) and came to the conclusion that the plaintiffs are not entitled to any consequential relief. 7. Lastly, the learned trial court took up issue no. (V) and came to the conclusion that the plaintiffs are not entitled to any consequential relief. 7. Being aggrieved by the judgment and decree passed by the learned trial court, the two of the non-contesting defendants who did not file their written statement and were set ex-parte in the Title (P) Suit No. 80 of 2003 and against whom the judgment and decree in Title (P) Suit No. 80 of 2003 was passed ex-parte filed Title (P) Appeal No. 26 of 2009 in the court of District Judge, Jamshedpur which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 8. The learned first appellate court formulated the following sole point for determination: “Whether any unity of title and possession exist between the parties or not?” 9. The learned first appellate court made independent appreciation of the evidence in the record i.e. the oral testimony of seven witnesses examined by the plaintiffs and the documents which have been marked Ext. 1 to 1/e as well as the oral testimony of the DW-1 who is the contesting defendant no. 6 and the documents which have been marked Ext. A to A/3 and the learned first appellate court found and held that the partition between the co-sharers of the suit land has already been taken place and there is no unity of title and possession between the parties in respect of the suit land and went on to upheld the judgment and decree passed by the learned trial court and dismissed the appeal. The learned first appellate court in paragraph no. 17 of the impugned judgment observed that since the appellants have not filed any written statement or adduced any evidence nor have they cross-examined any witness; so, they are not entitled to challenge the facts and evidence which has come during the trial, in the appeal and had they wanted to do that they could have availed the provision of Order IX Rule 13 of Code of Civil Procedure and repeated the similar observation in paragraph no. 29 of the impugned judgment after answering the sole point for determination in paragraph no. 28 as already indicated above that the facts of the case shows that the appeal has been filed by the appellants at the instance of the plaintiffs who is the respondent nos. 29 of the impugned judgment after answering the sole point for determination in paragraph no. 28 as already indicated above that the facts of the case shows that the appeal has been filed by the appellants at the instance of the plaintiffs who is the respondent nos. 1 and 2 before the learned first appellate court but the plaintiffs themselves have not filed the appeal and the appellants cannot challenge the impugned judgment and decree on the merits because in the original suit, they have neither appeared nor filed the written statement nor adduced any evidence and the suit has been proceeded and decreed ex-parte against them. 10. Mr. Rohitashya Roy, learned counsel for the appellants submits that the impugned judgment and decree has been erroneously passed by the learned first appellate court and the learned first appellate court has committed an error of law by holding that the appellants cannot challenge the judgment and decree passed by the learned trial court as they had not contested the suit in the learned court below. It is next submitted by Mr. Roy that the learned court below has failed to consider that sufficient service of the summons upon the appellants was not made in the suit. It is then submitted by Mr. Roy that the learned court below has committed grave error of law by holding that there is no unity of title and possession between the parties only on the basis of the recital of the sale deeds. Hence, it is submitted that the judgment and decree of both the courts below be set aside by formulating appropriate substantial question of law and the suit of the plaintiffs being Title (P) Suit No. 80 of 2003 be decreed. 11. Hence, it is submitted that the judgment and decree of both the courts below be set aside by formulating appropriate substantial question of law and the suit of the plaintiffs being Title (P) Suit No. 80 of 2003 be decreed. 11. Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that the learned first appellate court has considered the deposition of the witnesses examined by the plaintiffs and has come to the conclusion that all the co-sharers have been in possession of the different lands and also co-sharers have sold some of the lands and from Ext.A and A/1, it was found by the learned first appellate court that the plaintiff himself has sold some of the suit land to another person and these circumstances have been relied upon by the learned first appellate court to come to the conclusion that the same inter-alia indicates that there was prior partition. 12. So far as the contention of the learned counsel for the appellants regarding the appellants having not filed the written statement nor adduced any evidence nor even cross-examined any witness is not entitled to challenge the facts and evidence which has come during the trial is concerned, the same is just a passing remark made by the first appellate court and it has no bearing upon the finding of the facts arrived at by the learned first appellate court regarding the sole point for determination as to whether any unity of title and possession exist between the parties or not which has been categorically answered in the negative by the learned first appellate court by holding that no unity of title or possession exist between the parties in respect of the suit property, purely on the basis of the appreciation of evidence in the record. 13. After carefully going through the materials in the record, this Court finds that the finding of fact arrived at by the learned first appellate court was not done by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic as to suffer from the vice of irrationality incurring the vice of being perverse. 14. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic as to suffer from the vice of irrationality incurring the vice of being perverse. 14. Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this appeal. 15. Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 16. Let a copy of this Judgment be sent to the court concerned forthwith.