2025:JHHC:25182 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 528 of 2016 Anant Kumar Pandey, son of late Jagniwash Ram Pandey, resident of Village- Bansari, P.O. & P.S.- Ghaghra, District- Gumla, Jharkhand. … … Plaintiff/ Appellant /Appellant Versus 1. Subodh Kumar Pandey (dead substituted vide order dated 10.03.2022) 1(i) Smt. Sarda Pandey, w/o Late Subodh Kumar Pandey 1(ii) Ajit Kumar Pandey 1(iii) Awanit Kumar Pandey Both s/o Late Subodh Kumar Pandey All R/o vill.- Bansari, P.O. & P.S. – Ghaghra, District- Gumla. 2. Manoj Kumar Pandey Son of late Nand Kumar Pandey, resident of Village- Bansari, P.O. & P.S. – Ghaghra, District- Gumla. 3. Bandi Ram Bhagat, son of Ayta Bhagat, resident of Village- Nauni, P.O. & P.S. – Ghaghra, District- Gumla. 4. Deputy Commissioner, Gumla, P.O., P.S. and District- Gumla. … … Defendants/Respondents/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Sandeep Verma, Advocate : Mr. Md. Abdul Wahab, Advocate For the Respondents : --- 14/25.08.2025 Heard the learned counsel for the appellant. 2. This 2nd appeal has been filed against the judgment and decree dated 29.06.2016 (decree signed on 16.07.2016) passed by learned Principal District Judge, Gumla whereby the learned 1st appellate court dismissed the Title Appeal No. 19 of 2010 and confirmed the judgment and decree dated 08.07.2010 (decree signed on 22.07.2010) passed by learned Munsif, Gumla in Title Suit No. 10 of 2004. The suit was dismissed and the appeal was also dismissed. Consequently, the plaintiff is before this Court in 2nd appeal. 3. Learned counsel for the appellant has submitted that though the suit was dismissed, but one of the issues as to whether there was unity of title and possession with respect to the suit land, was decided in favour of the plaintiff and it has been held that there has been no partition between the plaintiff and defendant nos. 1 and 2. 2025:JHHC:25182 2 4. The learned counsel further submits that it was the specific case of the plaintiff that there has been no partition with respect to the suit property. He submits that the defendant did not file any appeal against aforesaid finding. However, the learned 1st appellate court has reversed the finding by holding that there has been previous partition with respect to the suit property. He submits that such a course could not have been adopted by the learned 1st appellate court and accordingly, a substantial question of law be framed. 5. After hearing the learned counsel for the appellant, this Court finds that the plaintiff had filed a suit seeking a declaration that sale deed no. 2238 dated 05.11.2003 executed by defendant nos. 1 and 2 in favour of defendant no. 3 pertaining to the suit land under Khata No. 3, Plot No. 317 area 2.30 acres of village Bahdura, P.S. Ghaghra, district Gumla was illegal, void and inoperative and was not binding upon the plaintiff. It was their case that the suit land was Bakast land of Jagniwas Ram Pandey, father of the plaintiff and grandfather of defendant nos. 1 and 2. Said Jagniwas Ram Pandey transferred the suit land in favour of his wife Smt. Bideh Kumari through registered sale- deed dated 26.02.1948 and after purchase, she came in possession and paid rent to the landlord. The genealogy has also been given in the trial court’s judgment. 6. It was the case of the plaintiff that they were still in joint possession of the property and that the defendant nos. 1 and 2 could not have transferred the suit property to the defendant no. 3 without the knowledge and consent of the plaintiff or any other concerned. 7. The defendant nos. 1 to 3 filed joint written statement and contested the suit and it was their specific case that after lapse of three months from the execution of the sale-deed involved in this case, the plaintiff executed a sale-deed on 05.11.2003 and admitted that there was mutual partition with respect to the suit property and while transferring the said property, he stated that the same fell in his share and he also claimed that he was in exclusive possession of the property and the land was also mutated. 2025:JHHC:25182 3 8. A written statement was also filed by defendant no. 4 stating that there was partition in the year 1972 between the heirs of Late N. K. Pandey and the plaintiff in which the suit land fell in the share of defendant nos. 1 and 2 who subsequently sold the same to defendant no. 3. 9. Following issues were framed by the learned trial court:- “1. Is the suit maintainable in its present form? 2. Has the plaintiff any cause of action for the suit? 3. Is there any unity of title and possession over the suit land between plaintiff and defendant no. 1 and 2? 4. Is there any partition between plaintiff and the defendant no. 1 and 2? 5. Is the story that entire plot 317 area 2.30 decimal fell in the share of heirs of Nandkumar Pandey correct? 6. Is the deed executed by defendant No. 1 and 2 in favour of defendant No. 3 dated 05.11.2003 legal, valid and binding upon the plaintiff? 7. Is the plaintiff entitled to any relief or reliefs as claimed for?” 10. While deciding issue nos. 3 and 6, the learned trial court observed that the plaintiff had not disclosed the complete facts. The learned court was of the view that in view of the judgment passed by the Hon'ble Supreme Court, if joint family property has been sold, then the defendant no. 3 has a right only to sue for partition of property and ask for allotment of his share, but the same will not be enough to declare the sale-deed as null and void. The learned court ultimately held in paragraphs 21 and 22 as follows: “21. On the basis of aforesaid discussions and considering the case of both the parties in totality in view of oral and documentary evidence adduced on behalf of both the parties I relied on the submission of the learned counsel of the defendants and I find and hold that the sale deed no. 2238 dated 5.11.2003 is a legal, valid operative document and there is a unity of title and possession over the suit land. Accordingly, issues no. 3 is decided in favour of plaintiff and issue no. 6 in favour of defendant. 22. Issues no. 3 and 4:- As per discussion in issues no. 3 and 6 I also find that there is no partitioned between plaintiff and defendants no. 1 and 2 and the suit property is not fell in the 2025:JHHC:25182 4 share of Nand Kumar Pandey. Therefore, this two issue is decided in favour of plaintiff and against the defendants.” 11. So far as the learned 1st appellate court is concerned, admittedly the defendants who claimed that there has been partition, did not file any cross appeal but the learned 1st appellate court being the last court on facts has decided all the issues after hearing the parties. The learned 1st appellate court also re-casted the issues in the following manner: “1. Is the suit maintainable in its present form? 2. Has the plaintiff any cause of action for the suit? 3. Is there any unity of title and possession over the suit land between plaintiff and defendant no. 1 and 2? 4. Is there any partition between plaintiff and the defendant no. 1 and 2? 5. Is the story that entire plot 317 area 2.30 acre fell in the share of heirs of Nandkumar Pandey correct? 6. Is the deed executed by defendant No. 1 and 2 in favour of defendant No. 3 dated 05-11-03 legal, valid and binding upon the plaintiff? 7. Is the plaintiff entitled to any relief or reliefs as claimed for? 8. Whether the suit is bad for non-joinder of necessary party? 9. Whether the suit is hit by the provision of Section 34 specific relief Act?” 12. The learned 1st appellate court took up issue nos. 3, 4, 5 and 6 together and considered all the oral as well as documentary evidences and held that the sale-deed executed by defendant nos. 1 and 2 in favour of the defendant no. 3 dated 05.11.2003 is legal, valid and binding upon the appellant(plaintiff). The learned court also recorded that there was no unity of title and possession with respect to the suit property and held that the suit was earlier partitioned between the plaintiff/appellant and defendant nos. 1 and 2 and they have sold the land to defendant no. 3. The finding has been arrived after considering the materials on record both oral and documentary. 13. This court is of the considered view that merely because a separate appeal was not filed by the defendants, the same would not preclude the 1st appellate court from entering into and deciding all the 2025:JHHC:25182 5 points which arose for consideration and stood contested including the point as to whether there was any previous partition with respect to the suit property and as to whether there was any unity of title and unity of possession with respect to the suit property. The arguments of the defendants who were respondents before the learned 1st appellate court has been recorded in paragraph 16 of the impugned judgement who submitted that the suit property was not the joint property rather the same was partitioned in between the parties and this point was duly considered by the learned 1st appellate court after appreciating the materials placed on record while holding that there was previous partition. The learned 1st appellate court also took into consideration that the suit was not a partition suit but the only relief was in relation to challenge to the sale deed executed by the defendant no. 1 and 2 in favour of the defendant no. 3 and since it was pleaded that there was unity of title and possession between the plaintiff and the defendant no. 1 which was denied by the defendants , the court had no option but to enter into the issue and after appreciating the materials has come to a conclusion that there was no unity of title and possession and there has been previous partition. 14. This Court also finds that no perversity as such has been pointed out by the learned counsel for the appellant with respect to appreciation of the materials on record. 15. In view of the aforesaid facts and circumstances, this Court is of the view that no substantial question of law is involved in this case. Accordingly, this 2nd appeal is hereby dismissed. 16. Pending interlocutory application, if any, is closed. (Anubha Rawat Choudhary, J.) Pankaj