2025:JHHC:23767 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S. A. No. 189 of 2004 1. Nemiya, Wife of Late Mittu Mahto (Deleted vide order dated 18.03.2021) 2. Dwarika Mahto, Son of Late Mittu Mahto, Resident of Village: Beko, P.O. Nawagarh, Chatti, P.S. Dhanwar, District: Giridih. … … Plaintiffs/Appellants/Appellants Versus 1. Natho Mahto (Deleted and substituted vide order dated 27.09.2013) 1(a) Mostt. Mundri, W.O: Late Natho Mahto (Deleted vide order dated 13.07.2022) 1(b) Mostt. Anita Devi, W.O: Late Mahesh Mahto 1(c)Sanjay Mahto, S.O: Late Natho Mahto(Deleted and substituted vide order dated 13.07.2022) 1(c)(i) Kiran Devi, Wife of Late Sanjay Yadav. 1(c)(ii) Soni Kumari (Minor), Daughter of Late Sanjay Yadav being represented by her mother namely Kiran Devi as natural guardian. 1(c)(iii) Aman Kumari (Minor), Daughter of Late Sanjay Yadav being represented by her mother namely Kiran Devi as natural guardian. All Resident of Village:- Beko, P.S. Dhanwar. P.O. Nawagarh, Chatti, District:- Giridih. 1(d)Fulia Devi, D.O: Late Natho Mahto, W.O: Damodar Mahto 1(e)Batawa Devi, D.O: Late Natho Mahto 1(f)Kaushlya Devi, W.O: Bijay Mahto All resident of Beko, P.O. Nawagarh, Chatti, P.S. Dhansar, District Giridih. 2. Mahendar Mahto, S/O: Late Khedan Mahto, R/O: Village: Beko, P.O. Nawagarh, Chatti, P.S. Dhanwar, District: Giridih. 3. Sona Mahto, S/O: Chito Mahto (Deleted and substituted vide order dated 13.07.2022) 3(a) Lakhiya Devi, W/O: Late Sona Mahto (Deleted vide order dated 14.05.2024) 3(b)Suresh Mahto, S/O: Late Sona Mahto, R/O: Village: Beko, P.O. Nawagarh, Chatti, P.S. Dhansar, District Giridih. 3(c) Gaindiya Devi, W/O: Karu Mahto and Daughter of Late Sona Mahto, R/O: Village: Paphara, P.O- Jammu Via Markachhu, P.S. Markachhu, District- Koderma. 3(d) Miro Devi, W/O: Munshi Mahto, Daughter of Late Sona Mahto, R/O: Village-Alagdeshi, P.O. Kubri, P.S.- Rajdhanwar, District-Giridih. 3(e) Jhuniya Devi, W/O: Late Surendra Yadav, Daughter of Late Sona Mahto, R/O: Village: Daldal, P.O.-Kubri, P.S. Rajdhanwar, District-Giridih. 4. Baleshwar Mahto, S/O: Late Chaman Mahto 2025:JHHC:23767 2 5. Babun Mahto, S/O: Late Chaman Mahto 6. Kedar Mahto (Deleted and substituted vide order dated 14.05.2024) 6(a) Bhagiya Devi, W/O: Late Kedar Mahto 6(b)Raju Yadav 6(c)Chunnu Mahto 6(d)Ankur Yadav All sons of Late Kedar Mahto, All R/O: Village Beko, P.O. Nawagarh, Chatti, P.S. Dhansar, District Giridih. 7. Nageshwar Mahto, S/O: Late Chaman Mahto 8. Ram Lal Mahto, S/O: Late Chaman Mahto 9. Reso Mahto 10. Chundu Mahto Both Sons of Late Nehal Mahto 11. Chinta Devi, W/O: Baijnath Singh 12. Girija Devi, W/O: Bahadur Singh 13. Most. Bisuni Devi, W/O: Somar Rana Nos. 1 to 3, resident of Village: Beko, P.O. Nawagarh, Chatti, P.S. Dhanwar, District: Giridih. Nos. 4 to 10 resident of Village: Bindhania, P.O. and P.S. Markachho, District: Hazaribagh. Nos. 11 to 13, resident of Village- Beko, P.O. Nawagarh, Chatti, P.S. Dhanwar, District: Giridih … … Defendants/Respondents/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Kundan Kr. Ambastha, Advocate : Mr. Md. Abdul Wahab, Advocate : Mr. Anurag Chandra, Advocate : Mr. Sumit Kumar, Advocate For the Resp. Nos. 1(c)(i), (c)(ii), 1(c)(iii) and Legal representatives of Respondent No. 2 : Mr. Atanu Banerjee, Advocate : Ms. Sugandha Khalkho, Advocate : Mr. Aditya Banerjee, Advocate For Respondents : Mr. Ram Lakhan Yadav, Advocate : Ms. Savita Kumari, Advocate --- 26/13.08.2025 1. Heard the learned counsel appearing on behalf of the parties. 2. This appeal has been filed against the judgment dated 16.02.2004 (decree signed on 05.03.2004) passed by the learned Additional District Judge-VI, Giridih dismissing the Title Appeal No. 06 of 1992/116 of 2002 and confirming the judgment dated 2025:JHHC:23767 3 10.10.1991 (decree signed on 25.02.1992) passed by the learned Additional Munsiff-I, Giridih in Title Suit No. 14 of 1989. 3. The learned trial court had dismissed the suit. 4. This appeal was admitted for final hearing on 18.02.2009 on the following substantial question of law:- Whether the learned court of appeal below has misconstrued and misinterpreted the judgment passed in Partition Suit No. 11 of 2002 of 61-62 (Exhibit-1)? 5. Learned counsel representing the plaintiffs has placed the Exhibit-1 which was a judgment passed in Partition Suit No. 11/2 of 1961-62 dated 11th July, 1963 and has referred to the paragraph 24 of the judgment to submit that with respect to Mostt. Sanichari, who had executed the sale deed dated 20.05.1961 (Exhibit-B) in favour of the defendant No.2 and 3 of the said case, it has been held that the Exhibit-B in favour of Khedan was proved to be farzi and collusive document. The learned counsel has further submitted that once the sale deed (Exhibit-B) in the aforesaid partition suit of the year 1961- 62 was held to be farzi and collusive document, all subsequent sale deeds based on such sale deed are to be automatically set aside. 6. The learned counsel submits that the judgment dated 11th July, 1963 i.e. Exhibit-1 has not been properly considered by the learned courts and they were wrongly swayed away by the fact that neither the sale deed executed by Mostt. Sanichari was exhibited nor the sale deeds which were challenged in the suit were exhibited. 7. The learned counsel has submitted that the sale deed executed by Mostt. Sanichari having been declared as farzi and collusive document was null and void for all purpose and the same was not required to be exhibited. He submits that only the legal effect of such a declaration was required to be seen. For this, he has relied upon judgment passed by the Hon’ble High Court of Kerala reported in 2009 4 KLT 840 equivalent citation is 2009 Supreme (Ker) 791 [S. Krishnamma v. T.S. Viswajith & Another] and has referred paragraph 6 of the aforesaid judgment. He submits that in view of the aforesaid 2025:JHHC:23767 4 facts and circumstances, the Exhibit-1 was not properly appreciated by both the courts and therefore, the substantial question of law is fit to be answered in favour of the appellants and against the respondents. Paragraph 6 of the judgment passed by Hon’ble High Court of Kerala reported in 2009 4 KLT 840 equivalent citation is 2009 Supreme (Ker) 791 (Supra) is quoted as under:- “6. Now I shall refer to the question whether the suit is barred by limitation as contended by learned counsel for respondents. Appellant has prayed for a declaration as to her legal status in view of Ext. A7 and a further declaration that she is entitled to succeed to the estate of late Chandrasekharan Nair and get family pension. Then the question will raise as to what is the legal effect of a document which is ab initio void. A void document is non est in the eye of law which an illegal document is something which involves a contravention or prejudice to an express or implied provision of law, rule or byelaw. I found as rightly held by learned Munsiff that Ext.A7 is void, has no legal effect and is non est in the eye of law. Once Ext.A7 goes out from consideration appellant continued to be a legal heir of Chandrasekharan Nair along with respondent No.1. When the document which stood against the appellant is void in the eye of law, it is not necessary to set aside that document or even ask for a declaration regarding the validity of that document. Apex court considered that issue in State of Maharasthra Vs. Praven Jethalai Kamdas (AIR 2000 SC 1099). There, possession was taken under a void document. The suit was for declaration and recovery of possession. It was held that there was no need to seek declaration about invalidity of a void document and that even if relief of declaration along with recovery of possession is sought for, the suit would be governed by article 65 and not article 58 of the Limitation Act. The apex court in Premsingh Vs. Birbal (2000(2) KLT 863) held that when a document is void ab initio a decree setting aside the same would not be necessary as the same is non est in the eye of law and is a nullity. In such cases when a declaration regarding the void character of the document is sought for that is only an ancillary relief which would not govern the period of limitation for the suit. The consequential relief sought for is to be treated a main relief governing the period of limitation for the suit. (See Mrs. Indira Bhalchandran Gokhale Vs. Union of India & 2025:JHHC:23767 5 Another-AIR 1990 Bombay 98). Therefore, declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.” 8. The learned counsel for the respondents while opposing the prayer has referred to paragraph 5 of Exhibit-1 and submits that the sale deed executed by Mostt. Sanichari was relating to Khata No. 10 and was dated 20.05.1961. He has submitted that the learned courts have taken into consideration the Exhibit-1 and found that it was not matching with the case of the plaintiffs as the sale deed executed by Mostt. Sanichari in this case was of the year 1962. He submits that the sale deed which has been mentioned in the plaint of this case was never declared as null and void and the statements made in the plaint were also denied in the written statement. 9. The learned counsel has also submitted that it is a peculiar case where neither the sale deed executed by Sanichari was exhibited nor any of sale deeds under challenged were exhibited. 10. The learned counsel has submitted that the learned courts have taken into consideration all the materials on record including the appellate judgment arising out of Exhibit-1 and also Khata Nos. 7 and 10 while holding that the plaintiffs has failed to prove their case. The learned counsel has submitted that the sale deed executed by Mostt. Sanchari and also the subsequent sale deeds were required to be exhibited before the court for comparison and for recording a finding and therefore, the learned courts have not committed any error in appreciating Exhibit-1. He submits that the substantial question of law is fit to be answered in favour of the respondents and this appeal is fit to be dismissed. 11. After hearing the learned counsel for the parties, this Court finds that Title Suit No. 14 of 1989 was filed seeking a declaration that sale deed executed by defendant No.1 and 2 jointly and severely in favour of defendant Nos. 4 to 9 being sale deed No. 10865 and 2025:JHHC:23767 6 10866 dated 20.08.1988 and also registered sale deed No. 5745 dated 11.10.1988 be declared null and void and not binding on the plaintiffs. 12. The specific case of the plaintiffs was in paragraph 9 of the plaint was that all the aforesaid sale deeds were based upon the sale deeds said to have been executed by Mostt. Sanchari numbered as 6602 of 1962 which has been declared as farzi and collusive by the competent courts and in previous paragraph of the plaint reference was made to the judgment and decree passed in Partition Suit No. 11/2 of 1961-62, the said judgment passed in the partition suit was exhibited as Exhibit-1 before the court. The facts also reveals that the sale deed executed by Mostt. Sanchari which was declared to be collusive in the aforesaid Partition Suit No. 11/2 of 1961-62 was never exhibited before the court and also the fact that the sale deeds which were under challenge in the present suit were also not exhibited. 13. Upon perusal of Exhibit-1, which is the judgment passed in aforesaid Partition Suit of 1961-62, this Court finds that in paragraph 5 of the judgment, it has been clearly mentioned that Mostt. Sanchari had executed sale deed dated 20.05.1961 in favour of defendant Nos. 2 and 3 of the said case in the context of Khata No. 10; the findings of the learned court in the said case with regard to the sale deed dated 20.05.1961 has been given in paragraph 24 of Exhibit-1 wherein it has been observed that Exhibit-B sale deed executed by Mostt. Sanchari in favour of Khedan was proved to be farzi and collusive document in view of the discussions made in the judgment. 14. This Court finds that as per the plaint of this case, the sale deed which was declared to be collusive in the aforesaid Partition Suit of the year 1961-62 was numbered as 6602 of the year 1962. However, the judgement passed in the aforesaid partition suit of the year 1961- 62 (Exhibit-1) finds no reference to sale deed No. 6602 of 1962 in the entire body of the judgment (Exhibit-1). The learned counsel for the appellant has also not been able to point out any reference to sale deed No. 6602 of 1962 in Exhibit-1. 2025:JHHC:23767 7 15. This Court further finds that the statement made in paragraph 9 of the plaint was denied by the defendants in the written statement and therefore, in order to find out as to which sale deed and relating to which property the deed was declared to be farzi in the earlier partition suit of the year 1961-62 was certainly required to be exhibited. The learned trial court has discussed the implication of not exhibiting the aforesaid sale deed which was declared to be collusive in the partition suit of the year 1961-62 in paragraph 8 of the judgment itself is as under:- “8. The plaintiffs have supported their case in their examination in chief. Excepting both the plaintiffs none has been examined as plaintiff’s other independent witness. Neither any document has been filed in respect of the suit land described at the foot of the plaint nor any reason has been shown for that. The plaintiffs have challenged the validity of the three sale deeds in respect of the suit land numbered as 10865, 10866 dated 20.08.88 and 5745 dated 11.10.88. But those sale deeds have not been brought on record or exhibited on behalf of the plaintiffs in this suit. The plaintiffs have pleaded that in basis of those three sale deeds in the sale deed executed by Mt. Sanichari in favour of defendant Nos. 1 and 2 numbered as 6602 of 1962 (vide para 9 of the plaint) which has been declared as farji and collusive. But that sale deed executed by Mt. Sanichari has also not been brought on record or exhibited on behalf of the plaintiffs in this suit. At the foot of the plaint schedule of Kewala’s land has been shown and given and accordingly suit land is Khata No.10 and Khata No.4’s Khesra No. 1028 and 928, 580 respectively. I also perused the entire judgment passed in partition suit No. 11/2 of 1961-62 (Exhibit-1) and Judgment passed in its Appeal No. 53/2 of 63-64 (Exhibit-D). In para 24 of the judgment of partition suit No. 11/2 of 61-62 (Exhibit-1) it has been observed that Exhibit-B sale deed executed by Mt. Sanichari in favour of Khedan which is proved to be fargi and collusive document. Sale deed executed by Mt. Sanichari was thus Exhibit-B in that case has not been exhibited in this case on behalf of the plaintiffs. Moreover, para 5 of Exhibit-1 shows that Mt. Sanichari had executed sale deed in favour of Khedan (Defendant No.1) on 20.05.61. In the present suit the plaintiffs have given and challenged the sale deed No. 6602 executed by Most. Sanichari in the year 1962. It is apparent that in Partition Suit No. 11/2 of 61-62 (Exhibit-1) Sanichari had executed sale deed in favour of Khedan (Defendant No.1) on 20.5.61 which was declared as farji and 2025:JHHC:23767 8 collusive and not the sale deed executed by Mt. Sanichari of the year 1962 which has been referred in the present suit. Judgment of its appeal No. 53/2 of 63-64 (Exhibit-D) also shows that in that suit Exhibit-B was the Rd. Sale deed executed by Sanichari in favour of Khedan (Defendant No.1) on 20.5.61 (vide para 11 of Exhibit D) para 11 of Exhibit D at page 15 and 16 also shows that through that Exhibit-B Mt. Sanichari had sold land of Khata No. 10 and 7. But schedule of the plaint of the present suit shows that the suit land in this suit relates to Khata No.10 and Khata No.4 so I find that in partition suit No. 11/2 of 61-62 and in its Appeal No. 53/2 of 63-64 Exhibit-B was the sale deed executed by Mt. Sanichari dated 20.05.61 in respect of lands of Khata No.10 and Khata No.7 and which was declared as fargi and collusive whereas in the present suit, the plaintiffs have pleaded that sale deed executed by Mt. Sanichari of the year 1962 in favour of defendant Nos. 1 and 2 was declared as farji and collusive and in schedule of the plaint lands of khata No.10 and Khata No.4 has been shown. It clearly shows that the sale deed executed by Mt. Sanichari referred in the present suit of 1962 relates to different dates and different lands and not relates to Exhibit-B of partition No. 11/2 of 61-62 which was declared farji and collusive. Moreover the defendant No.1 and 2 are the heirs of recorded tenant Chito Mahto so the three sale deeds in question relating to suit land have been executed by them which they have every right to execute and to sale. As said above no papers or documents have been filed on behalf of the plaintiffs relating to the suit land. Admittedly Mt. Sanichari is the only heir and widow of Bhikhan (son of recorded tenant Budhan). The plaintiffs have not been able to prove in this suit that how Sanichari had no saleable interest or right in suit land after passing of nor the plaintiffs have been able to prove that after the death of Bhikhan his widow Mt. Sanichari remarried and left the house and village from the evidence of P.W.1 and 2 (Plaintiffs) in their cross exam and from Exhibit-1 and Exhibit-D and also from the evidence of Mt. Sanichari D.W.1 it is very clear that this allegation of the plaintiffs is quite false and Sanichari still lives in the same village Angan of Plaintiffs and Defendant Nos. 1 and 2. The plaintiff No.1 Mitu (P.W-1) has admitted in cross examination …………………………….” ” 16. The learned 1st appellate court has also considered the Exhibit-1 in paragraph No. 11 and recorded the finding as under:- “11. ………………………………………I also perused the entire Judgment passed in Partition Suit No. 11/2 of 1961-62 (Exhibit- 1) and Judgement passed in its appeal No. 53/2 of 63-64 2025:JHHC:23767 9 (Exhibit-D). In para 24 of the Judgment of Partition Suit No. 11/2 of 61-62 (Exhibit-1) it has been observed that Exhibit-B sale deed executed by Mostt. Sanichari in favour of Khedan which is proved to be fargi and collusive document. Sale deed executed by Mostt. Sanichari was thus Exhibit-B in that case. But Exhibit-B in that case. But Exhibit-B of that case has not been exhibited in this case on behalf of the plaintiffs. Moreover para 5 of Exhibit-1 shows that Most. Sanichari had executed sale deed in favour or Khedan (defendant No.1) on 20.05.61. In the present suit, the plaintiffs have given and challenged the sale deed no. 6602 executed by Mostt. Sanichari of the year 1962. It is apparent that in partition suit No. 11/2 of 61-62 (Exhibit-1) Sanichari had executed sale deed in favour of Khedan (defendant No.1) on 20/5/61 which was declared as fargi and collusive and not the sale deed executed by Mostt. Sanichari of the year 1962 (which has been referred in the present suit). Judgement of its appeal no. No. 53 of 63 / 2 of 64 (Exhibit-D) also shows that in that suit Exhibit-B was the Regd. Sale deed executed by Sanichari in favour of Khedan (defendant No.1) on 20/5/61 (vide para 11 of Exhibit-D). Para 11 of Exhibit-D at page 15 and 16 also shows that through that Exhibit-B Mostt. Sanichari had sold lands of Khata No. 10 and Khata No. 7. But schedule of the plaint of the present suit shows that suit land in this suit relates to kahta No.10 and khata No.4. So I find that in partition suit No.11/2 of 61-62 and in the appeal No. 53 of 63 / 2 of 64 Exhibit-B was the sale deed executed by Mostt. Sanichari dated 20/5/61 in respect of lands of Khata No. 10 and Khata No. 7 and which was declared as fargi and collusive. Where as in the present suit, the plaintiffs have pleaded that sale deed executed by Mostt. Sanichari of the year 1962 in favour of defendant No.1 and 2 was declared as fargi and collusive and in schedule of the plaint lands of Khata No. 10 and Khata No.4 has been shown. It clearly shows that the sale deed executed by Mostt. Sanichari referred in the present suit of 1962 relates to different date and different lands and not relates to Exhibit-B of Partition No. 11/2 of 61-62 which was declared fargi and collusive.” 17. This court also finds that (a) Exhibit-B in the Partition Suit No. 11/2 of 1961-62 was the registered Sale deed executed by Mostt. Sanichari in favour of Khedan on 20.05.61 which was declared as farji and collusive whereas in the present suit, the plaintiffs have pleaded that sale deed executed by Mostt. Sanichari of the year 1962 in favour of defendant Nos. 1 and 2 was declared as farji and collusive. It 2025:JHHC:23767 10 clearly shows that the sale deed executed by Mostt. Sanichari referred in the present suit is of 1962 and it relates to different date and not relatable to Exhibit-B executed by Sanichari of Partition Suit No. 11/2 of 61-62 which was declared farji and collusive. This Court finds that the discussions made by the learned court with regard to Exhibit-1 is in accordance with law and there is no perversity or illegality in the matter of such discussion as recorded in the impugned judgements. 18. In view of the aforesaid findings, this Court is of the considered view that the learned courts have not misconstrued or misinterpreted the judgment passed in Partition Suit No. 11/2 of 1961-62 (Exhibit-1). Accordingly, the substantial question of law as framed by this Court is decided against the appellants and in favour of the respondents. 19. This second appeal is hereby dismissed. 20. Pending I.A., if any, is dismissed as not pressed. 21. Let a copy of this order be communicated to the concerned court through “Fax/e-mail”. 22. Let the records be immediately sent back to the concerned court. (Anubha Rawat Choudhary, J.) Rakesh/-