2025:JHHC:20781 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 96 of 2022 Ajit Kumar Dutta, (aged about 76 years), s/o – Late Dharani Dhar Dutta Resident of Kendo at present Pathna, P.O. & P.S. – Pathna, District – Sahibganj … … Defendant/Appellant/Appellant Versus Sandhya Rooj, wife of late Ram Chandra Rooj, Resident of Pathna, P.O. – Pathna, via Barharawa, P.S. – Pathna, District – Sahibganj … … Plaintiff/Respondent/Respondent --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Pratyush Kumar, Advocate For the Respondent : --- 10/29.07.2025 Heard the learned counsel appearing on behalf of the appellant. 2. This appeal has been filed against the judgement dated 09.05.2022 (decree signed on 20.05.2022) passed by learned Principal District Judge, Pakur in Civil Appeal No.2 of 2019 whereby the 1st appellate court has dismissed the appeal and affirmed the judgement dated 08.01.2019 (decree signed on 18.01.2019) passed by learned Civil Judge (Senior Division) I at Pakur in Title Partition Suit No.06 of 2011. 3. The partition suit fought between one brother and sister has been allowed in favour of the sister who was the plaintiff in the case and the appeal filed by the sole defendant, the brother has been dismissed by learned 1st appellate court. 4. The learned counsel while referring to the substantial question of law has in particular referred to substantial question of law no.F and submitted that there has been no documentary proof with regard to partition between the father of the plaintiff and the defendant on the one hand, and his brother, namely Narayan Dutta, on the other hand. He submitted that the suit was not maintainable without impleading all the heirs of Narayan Dutta and without including the properties belonging to Narayan Dutta, and therefore, the suit was bad for non- joinder of necessary parties. The learned counsel submits that this 2025:JHHC:20781 2 point is based on oral evidence as decided by the learned court, but there is no documentary evidence on record with regard to partition, and therefore, substantial question of law be framed and notice be issued to the respondent. 5. After hearing the leaned counsel for the appellant, this Court finds that the plaintiff being the daughter of Dharani Dhar Dutta [who had expired in the year 1954], had filed the suit for partition against her full brother namely Ajit Kumar Dutta claiming half share of the suit property. The suit was contested and following issues were framed by the learned trial court: “1. Whether the suit is maintainable in the eye of law? 2. Whether the suit is barred by law of limitation? 3. Whether the suit is defective for non-joinder of necessary parties? 4. Whether the defendant and the plaintiff are heirs of recorded tenant Kalicharan Dutta? 5. Whether the plaintiff is entitled to get 50 per cent share in the suit property? 6. Whether the plaintiff is entitled for other reliefs?” 6. Both the parties produced oral as well as documentary evidences. The learned trial court considered the case of the respective parties and the materials on record and while deciding issue no.4 as to whether the defendant and the plaintiff are heirs of recorded tenant Kalicharan Dutta, considered the death of Dharani Dhar Dutta, the father of the plaintiff and the defendant, who had expired in 1954 when the age of the plaintiff was 7 years and her brother [sole defendant] was 4 years. 7. The learned court recorded that Dharani Dhar Dutta had expired prior to coming into force of Hindu Succession Act in the year 1956 which came into force on 17.06.1956. Then the learned trial court dealt with the point regarding partition/family arrangement on 07.06.1980 after death of Dharani Dhar Dutta from paragraph 17 onwards and ultimately recorded a finding in paragraph 17 (vi) that while going through the testimony of 3 P.Ws including the plaintiff 2025:JHHC:20781 3 himself and also DW 1 and DW 5, it was clear that they themselves have supported the case of the plaintiff regarding partition/family arrangement on 07.06.1980 after death of Dharani Dhar Dutta. Since the witnesses of both the parties had supported that partition/family arrangement, the finding in this connection was recorded in favour of the plaintiff. The learned court recorded that the parties are governed by Mitakshara School of Hindu Law and after considering the materials on record, held that the plaintiff and the defendant are the heirs of the recorded tenant Kali Charan Dutta regarding the suit land/suit property. 8. However, the learned trial court held that the plaintiff was entitled to 1/4th share instead of half share by virtue of discussions made in paragraph 18 (ii) (m). The learned trial court ultimately decided the issue no.4 in favour of plaintiff vide paragraph 20. 9. So far as issue no.5 is concerned, the same was already considered while deciding issue no.4 and it was held that the plaintiff was entitled to 1/4th share. 10. With respect to issue no.1 to 3 they were taken up together, the learned court held in paragraph 25 as follows: “25. That the defendant has examined 5 DWs including the defendant (DW1) in support of the defence and, for the defence, the defendant has brought on record by exhibiting 3 documents i.e. with objection (Ext.-A) and without objection (Ext.-B and Ext.-B/1), but, these 3 documents are not found helpful/relevant for the defendant as discussed above while deciding issue no.-4. Further, these 5 DWs have not deposed so as to prove the facts of the issues under consideration and, therefore, the defendant has not brought on record evidence regarding these issues under consideration. Hence, the defendant has been failed to discharge the onus cast on him. Consequently, the issue nos.-1 to 3 are decided in favour of the plaintiff and against the defendant accordingly.” The issue nos. 1 to 3 were also decided in favour of the plaintiff. 2025:JHHC:20781 4 11. While deciding issue no.6, the learned trial court held that the plaintiff was entitled to 1/4th share in the ancestral property i.e. the suit land. The learned trial court ultimately held that the plaintiff was entitled to 1/4th share and the defendant was entitled to 3/4th share of the schedule property in Schedule A and B of the plaint. The learned trial court ordered as follows:- “……. that the suit be and the same is decreed on contest against the defendants. Consequently, the plaintiff is entitled to 1/4th share, while the defendant is entitled to 3/4th share in the suit land/suit property described in Schedule-A and Schedule-B in the plaint and so the respective share is declared accordingly. Accordingly, preparation of final decree and partition/separation by issuance of commission for appointing the share of each party and distinguishing each share by metes and bounds shall be made accordingly. The defendant is directed to hand over to the plaintiff peaceful possession of the 1/4th share of the suit land/ suit property described in schedule-A and schedule-B in the plaint. The defendant shall pay to the plaintiff, Rs.8,000/- as the costs of and incident to the suit and Rs.3,000/-as compensatory costs i.e. total Rs.11,000/- (Rs. Eleven Thousand only). On failure, on the part of the defendant, the plaintiff shall be entitled to reliefs including costs by the process of law on payment of court fee u/ss-7(iv)(b) r/w section-17 of the Court-fees Act, 1870 as the decree shall not be executed until the difference between the fee actually paid and the fee payable on the amount so ascertained is paid. Office to prepare decree accordingly. Office to prepare decree accordingly.” 12. The learned 1st appellate court has also considered the materials on record and observed that the crucial issues were issue nos. 4 and 5 which were framed by the learned trial court. However, the learned 1st appellate court has also considered every aspect of the matter and 2025:JHHC:20781 5 dismissed the appeal filed by the defendant (the brother of the plaintiff). 13. This Court finds that there are concurrent findings in connection with the previous partition which is based on the evidence of the plaintiff as well as the defendant and therefore no question of law much less any substantial question of law arises with respect to the substantial question of law as pointed out by the learned counsel for the appellant. There is no scope for re-appreciation of evidences on record and no perversity as such has been pointed out in the matter of appreciation of evidences on record calling for framing any substantial question of law. 14. In such circumstances, the suit has been rightly held to be not barred on account of non-joinder of parties, who were Narayan Dutta or his descendants, nor their properties were required to be brought on record for the purposes of partition. 15. However, this Court is not inclined to pronounce anything with respect to other findings particularly the share allocated to the sister (plaintiff) and it is not clear as to whether the sister (plaintiff) has filed any appeal arising out of the same proceedings. However, so far as the arguments of the appellant (brother) is concerned, this Court does not find any reason to frame substantial question of law and to admit this case. 16. Accordingly, this second appeal is hereby dismissed. (Anubha Rawat Choudhary, J.) Saurav/