Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 94 (JHR)

Badri Narayan Pandey v. Ram Sagar Mahto

2023-02-01

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Sanjay Kumar Dwivedi, J. Heard Mr. Ayush Aditya, learned counsel for the appellants. 2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 20.04.2012 and decree signed on 08.05.2012 by the learned District Judge-II, Palamau at Daltonganj in Partition Appeal No. 34/2006, dismissing the appeal and thereby confirming the judgment dated 31.08.2006 and decree signed on 21.09.2006 passed by the learned Subordinate Judge-II, Palamau at Daltonganj in Partition Suit No. 69 of 1973. 3. Partition Suit No. 69 of 1973 was instituted by the plaintiffs/respondents for partition between the parties, which was decreed in favour of the plaintiffs vide order dated 31.08.2006 and against that judgment, Partition Appeal No. 34 of 2006 was filed by the defendants/appellants, which was also dismissed vide judgment dated 20.04.2012 and the judgment passed by the learned trial court was confirmed. 4. The case of the plaintiffs/respondents was that Pandey Jivrakhan Ram and Nanhaku Ram had been allotted a separate Takhta of 1 Anna 4 Pai share in a P.S. No. 19/1916 by the court of the learned Subordinate Judge, Palamau. The two brothers above mentioned were impleaded defendant nos. 32 and 33 in the said P.S. having equal share, which was for partition of land in respect of village Pandu, Jhagra, Sikiya, Basdiha Labar Pandu and Gagankeri. It was also averred in the plaint that the plaintiff's father Late Galuki Mahto purchased 2 Pai share in village Pandu, Basdiha, Jhagra and 4 Pai share in village Labar Pandu through a registered sale deed dated 26.01.1925 from Pandey Jivrakhan for a valuable consideration. It was also averred that Saluki Mahto came in possession over the land, so purchased by him and remained in possession in jointness till he was alive and on his death, the plaintiffs have been carrying on in joint possession, with the other defendants. It was further averred that parties of the suit have already been disposed of the property of village Basdiha. Hence, the lands of the village Basdiha have been left from the suit. after vesting of the Zamindari interest in the State of Bihar, under the B.L.R. Act, the plaintiffs and other set off the defendants have submitted return and K form separately for the convenience, but the rent was fixed at random. Hence, the lands of the village Basdiha have been left from the suit. after vesting of the Zamindari interest in the State of Bihar, under the B.L.R. Act, the plaintiffs and other set off the defendants have submitted return and K form separately for the convenience, but the rent was fixed at random. The plaintiffs and the defendants have been cultivating the land separately for convenience, but, since there is no partition by metes and bounds, the parties are feeling difficulties in improving the lands. The plaintiffs have demanded partition amicably, but the defendants did not agree. Therefore, the suit was filed. It was also averred in the plaint that the plaintiffs have 1/8th share in village Pandu and Jhugra and 1/4th share in village Labar Pandu and cause of action in the suit has been shown to arose on different dates. 5. The joint written statement was filed on behalf of defendant no. 2 and defendant no. 10 on 18.04.1978 stating therein that the suit is not maintainable and there was no valid cause of action for the suit. The plaintiffs were not in possession over the suit land. There is no unity of title and unity of possession. The suit is under valued and the valuation of the suit property is not below Rs. 50,000/- at the market rate. In the written statement, it was also pleaded that the suit is barred by Sections 8 and 35 of Bihar Land Reforms Act, 1950. It was also averred that Sarad Chand Sarkar has filed T.S. No. 19/1916 before the Deputy Commissioner cum Spl. Judge, Palamau against Prakash Chand Sarkar and others for partition of suit land of village Labar Pandu, Sikiya, Jhagra, Mahugawa, Karandih and Basdiha and partition decree was also passed. The plaintiff has wrongly pleaded that their ancestors Saluki Mahto have obtained 2 Pai share in Mauza Pandu, Basdiha and Jhagra and 4 Pai share in village Labar Pandu through registered sale deed dated 26.01.1925. The execution of deed was created with malafide intention. Saluki Mahto never came in possession over the suit land. A petition was filed on behalf of the plaintiffs under Sections 5, 6 and 7 of Land Reforms Act, 1950 for assessment of rent, which was dismissed. Besides this, rent was fixed in the name of defendants with regard to suit land of vllage Pandu. Saluki Mahto never came in possession over the suit land. A petition was filed on behalf of the plaintiffs under Sections 5, 6 and 7 of Land Reforms Act, 1950 for assessment of rent, which was dismissed. Besides this, rent was fixed in the name of defendants with regard to suit land of vllage Pandu. On 01.08.1973 in C.W.J.C. No. 4/1973 (R) after hearing, the order of Additional Collector, Palamau was set aside and suomoto case no. 41/1968-69 was restored. In the suomoto case, order was passed on 11.5.1971 in favour of Ram Sander Pandey and he came in possession. The plaintiffs and other defendants have no concern with the suit land of village Pandu. It was further averred that in village Labar Pandu, plot no. 338 and 312, which was in the possession of raiyat. Rest six plots was fixed in the name of defendant no. 2 and his possession was continued. subsequently, a proceeding u/s 145 of Cr. P.C. was initiated in between defendant no. 2 and Jai Nath Pandey. On 11.5.1987, the order was passed in favour of defendant no. 2, which was in the knowledge of plaintiffs also. Saluki Mahto or the legal heirs have never claimed regarding the disputed land for 12 years and they became ousted. 6. Defendant no. 2 and 2/A also filed written statement dated 12.02.2004 stating therein that Jivrakhan Ram Pandey had no right to sale the land to Saluki Mahto without prior permission of his brother Nanhaku Pandey. Saluki Mahto was required to file the suit within 12 years and Saluki Mahto never came in possession over the suit land. Plot No. 49B of village Pandu was given orally to defendants Badri Narayan Pandey by ex landlord Ambika Pandey and rent receipts was also given. But after vesting of Zamindari, return was filed by the ex landlord and thereafter the rent was fixed against the defendants. They have denied the prayer made in the suit. 7. Other defendants have also appeared and filed their written statements and they have also denied the prayer made in the suit. 8. Mr. But after vesting of Zamindari, return was filed by the ex landlord and thereafter the rent was fixed against the defendants. They have denied the prayer made in the suit. 7. Other defendants have also appeared and filed their written statements and they have also denied the prayer made in the suit. 8. Mr. Ayush Aditya, learned counsel for the appellants submits that the plaintiffs/respondents instituted the suit in the year 1973 claiming a relief for partition on the basis of an alleged registered sale deed dated 26.01.1925 (Exhibit-2) whereby Jivarakhan Pandey allegedly sold a Milkiyat (Zamindari) interest to the extent of 2 Pais share in village Pandu, Basdiha and Jhagra and 4 Pais share in village Labar, a simple suit for partition was at all maintainable, particularly when the defendants/appellants seriously denied the right, title, interest and possession of the plaintiff interalia on the ground that the plaintiffs' ancestor Saluki Mahto being a stranger, never came in possession on the basis of Exhibit-2 dated 26.01.1925 and upon vesting Zamindari under the Bihar Land Reforms Act, assessment of rent was admittedly done in the name of the defendant and M-Roll (Exhibit-E) was prepared in the name of Pandey Sundar Ram and attempt of the plaintiffs to get rent fixed in their names, through suo moto case no. 41/1968-69 (Exhibit-7). On these grounds, he submits that this aspect of the matter has not been appreciated by the learned trial court as well as the appellate court. There are substantial questions of law, so far as interpretation of the documents are concerned and in that view of the matter, this second appeal may kindly be admitted. 9. The suit was instituted for partition, which was decreed vide judgment dated 31.08.2006 by the learned trial court, whereby, 8 Pai part in 1/8 share of land of Jivarakhan Ram Pandey in Mouza Pandu and in Mouza Laber Pandu 1/4 share was partitioned and decreed in favour of the plaintiffs. The said judgment and decree was challenged in Partition Appeal No. 34 of 2006 which was dismissed by the learned appellate court and being aggrieved with that judgment, this second appeal has been filed. 10. The learned trial court has framed the issues and appreciated the evidences brought on record and thereafter passed the judgment. The learned appellate court has also framed points and thereafter decided the appeal. 10. The learned trial court has framed the issues and appreciated the evidences brought on record and thereafter passed the judgment. The learned appellate court has also framed points and thereafter decided the appeal. The learned appellate court has considered that that from the judgment of the learned trial court, it transpires that two witnesses namely Ram Lakhan Dubey and Deo Raj Mahto were examined and documentary evidence adduced were marked as Ext.1 to Ext. 10/B. Defendant no. 1 series examined two witnesses D.W.1 Harish Chand Pandey and D.W.2 Md. Iliyas. The documentary evidence adduced on behalf of the defendant no. 1 series were marked as Ext. A/1 to G/1 by the learned trial court. On behalf of defendant no. 2 series, five witnesses namely Ishwari Pandey, Kameshwar Dubey, Haridwar Pandey, Rajendra Prasad Singh and Ramesh Prasad Singh were examined. The documents adduced were marked as Ext.A/1 to Ext.E. On behalf of defendant nos. 10 to 10/C and 11 only one oral witness Satyendra @ Sarhul Pandey was examined and no any document was produced. On behalf of defendant no. 39, defendant himself was examined and document adduced was marked as Ext. A.A. to C/2. On behalf of defendant nos. 19 to 37, only one witness Basir Ahmad was examined. The documentary evidence i.e. sale deed adduced on behalf the defendants was marked as Ext. A.A.A. On behalf of defendant nos. 40 to 43, three witnesses namely Ram Kishore Pandey, Ramashraya Pandey and Madan Prasad were examined on their behalf, documentary evidence adduced was certified copy of the sale deed nos. 1512 and 661, where were marked as Ext. A.A.A.A. and A.A.A.A./1. By considering all these materials, the learned appellate court has found that there is no dispute, rather it is admitted that in P.S. No. 19/1916, Jivrakhan Ram Pandey and Nanhaku Pandey were full brothers having 1 Anna 4 Pai share and Takhta was allotted to both of them having each 8 Pai share. From perusal of Ext.2, it reveals that the same was executed by Jivrakhan Ram Pandey to Saluki Mahto and there is description that for the repayment of increasing debt, there was necessity that to execute the sale deed. The learned appellate court has also found that the executant or vendor had not challenged the sale deed. Ext.1 is the Government rent receipt issued by the order of the Circle Officer in suo moto case no. The learned appellate court has also found that the executant or vendor had not challenged the sale deed. Ext.1 is the Government rent receipt issued by the order of the Circle Officer in suo moto case no. 41/1968-1969. Ext.3 series which are the notices issued under public demand Act. Ext.5 is the certified copy of final decree of P.S. No. 19/1916 showing Takhta 1 Anna 4 Pai share allotted to Jivrakhan Ram Pandey defendant no. 32 and Nanhaku Pandey, defendant no. 33. Considering all these documents and evidences, the learned appellate court has affirmed the judgment of the learned trial court. There are concurrent findings of two courts. There is no perversity in the judgment of the courts. No interference is required to be made in view of concurrent finding of two fact finding courts. No question of law point is made out in this second appeal. 11. Accordingly, this second appeal stands dismissed.