1 [S.A. No. 167 of 2024] IN THE HIGH COURT OF JHARKHAND, RANCHI ---- S.A. No. 167 of 2024 ---- 1.Battu Das, son of Hansi Chamar aged about 60 years 2.Darbari Das, son of Hansi Chamar aged about 52 years 3.Uchit Das, son of Banshi Chamar aged about 70 years 4.Teklal Das, son of Banshi Chamar aged about 62 years All residents of Village Kathpakar, S.C. Kasba, PS Hansdiha, PO Dhanbai, Sub and District Dumka ……….. Appellant(s) -- Versus -- 1.Lalit Chamar son of late Sukhdeo Chamar 2.Toumi Devi wife of Babkis Das 3.Naresh Das, son of late Bibkis Das All residents of Village Kathpakar, S.C. Kasba, P.S. Hansdiha, P.O. Dhanbai, Sub. And District Dumka … Respondent(s) ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Appellants(s) :- Mr. Manjul Prasad, Senior Advocate For the Respondent(s) :- ---- 2/30.01.2025 This Second Appeal has been preferred against the judgment and decree dated 21.09.2024 (Decree sealed and signed on 04.10.2024) passed by learned District Judge-IV, Dumka in Civil Appeal No.18 of 2016 affirming the judgment and decree dated 24.05.2016 (Decree sealed and signed on 03.06.2016) passed by learned Civil Judge-I, Dumka, in Title (P) Suit No.14 of 1999. 2. The case of the plaintiffs in brief is that the the parties are Hindu Harijan and they are governed by Mitakashara School of Hindu Law. The genealogical table has been described in the plaint in detail. The lands of J.B. no.14 of mouza Bishanpur, S.C. Kasba stand recorded in the names of Mulhai Chamar, Shibu Chamar, sons of Kalu Chamar and Manu Chamar S/o Jitu Chamar and Bhagu Chamar S/o Horil Chamar in the last survey settlement of Mr. Gantzer with separate Dakhal Kiari in the remark column of the parcha. During Mr. Gantzer's settlement Kalu Chamar died his share of properties devolved upon his surviving sons in equal shares namely Mulhai Chamar and Shibu Chamar, 2 [S.A. No. 167 of 2024] Similarly his third brother Horil Chamar also died his share devolved upon his only surviving son Bhagu Chamar. The sons of Kalu Chamar namely Mulhai Chamar and Shibu Chamar were joint in mess and properties and accordingly they were recorded joint but in some of the lands only the name of Mulhai Chamar alone stands recorded due to the mistake of clerical error as it would also appear that in some plots the name of Mulhal Chamar and Shibu Chamar stand recorded as joint. The lands which are the joint family properties of said Mulhai Chamar and Shibu Chamar both sons of Kalu Chamar have been described fully in Schedule A, A/1, A/2, A/3, A/4 and A/5 of the plaint and one plot of land showing Makan as Ijmal in which the plaintiffs have got 1/6th share in schedule-B properties which may form part thereof and is the subject matter of the suit. The lands which stands recorded in the names of Manu Chamar and Bhagu Chamar separately in the remarks column of the parcha the plaintiffs have got no concern because their names stand in the Sadar Khana of the parcha so their heirs have been made proforma defendants. The recorded tenant Shibu Chamar died leaving behind his only son Sukhdeo Chamar a few years after the last survey settlement of Mr. Gantzer's was over and Sukhdeo Chamar died in the year 1974 leaving behind his widow namely Most. Katki, plaintiff no.2 and a son Lalit Chamar, plaintiff no. 1 in the suit. Mulhai Chamar also died leaving behind his two sons namely Banshu Chamar and Hanshi Chamar. Banshi Chamar also dead now and he is survived by his widow Most Satia and three sons namely Uchit Das Teklal Das and Basksis Das. Hanshi Chamar is alive and he and his sons and the heirs of Banshi Chamar are main contesting defendants in the suit. The plaintiffs as well as the defendants are always in peaceful cultivating possession of schedule A. A/1, 1/2, A/3, A/4 and A/S lands jointly and were paying rents regularly. The joint enjoyment and possession having become very difficult the plaintiffs asked for partition of their due share in the suit lands from the defendants but the defendants on some 3 [S.A. No. 167 of 2024] pretext or other deferred for some time and ultimately on 15 June, 1989 finally refused to partition the suit land by metes and bounds, hence the necessity of the suit. The plaintiffs are entitled to half share in schedule A, A/1, 1/2, А/3, 1/4 and A/5 and 1/6th share in schedule-B properties of the plaint. The cause of action for his suit arose on 15 June, 1989 when the defendants finally refused to partition the suit lands by metes and bounds and said cause of action arose at mouza Katpathar, S.C. Kasba, P.S. Hansdiha, Subdivision and Distt. Dumka within the jurisdiction of this court. 3. The case of the defendants is that the defendants have filed only one W.S. and it was stated that in the W.S. the plaintiffs have no cause of action for the suit. The suit is barred by limitation and principles of resjudicata, acquiescence, waiver and estoppel. The claims is not maintainable in the present form and as much as it is merely a guise for challenging the settlement entry made during Mr. Gantzer's survey by Institution of a simple suit for partition. The settlement entry for the suit lands made in the Khatian of last survey and settlement are final and conclusive and the same cannot be challenged at this stage after lapse of more than statutory period of limitation in this court who has no jurisdiction to ignore the effect of the settlement entry and act contrary to the entry made in the last settlement. The plaintiffs have failed to establish their claims as set up in this present suit before the Assistant Settlement Officer during present survey attestation operation where in the parcha of the suit lands has been recorded and attested in presence of the parties in accordance with the last settlement entry made in favour of the ancestors of the parties. The assertions made in paras 3, 4 and 5 are matter of record and thus the plaintiffs have to prove the same. The assertions made in para 6 of the plaint are false and incorrect and as such the same are denied by these defendants. It is submitted that Mulhai Chamar and Shibu Chamar sons of Kalu Chamar were separate from each other in mess and properties before 4 [S.A. No. 167 of 2024] the last settlement and as such separate possession of Mulhai Chamar has been recorded in the last settlement Khatian of the said land showing plot no. 181 recorded as Sahan which indicated the separate status of Mulhai Chamar the ancestor of these defendants The assertions made in para-7 of the plaint are partly correct and partly incorrect. It is correct that the lands described in schedule A of the plaint is the suit but it is incorrect that the suit lands are joint family properties. Besides the plaintiffs have knowingly not given the details of plot number of Izmal Makan with correct area of said land recorded in the names of Mulhai Chamar and Shibu Chamar and there is no suit land given in schedule-B of the plaint recorded as Ijmal Makan and thus it is incorrect to say that the Schedule-B properties of the plaint are recorded in separate possession of Mulhai Chamar and Shibu Chamar. Schedule-B properties of the plaint are recorded jointly in the names of Mulhai Chamar and Shibu Chamar along with their co-sharers and said properties have been partitioned among themselves and accordingly their descendants are in possession of the same and their separate possession have been recorded in the present survey Khatian. In para- 8 of the plaint also falsely claims of the plaintiffs with regard to the joint family properties. The assertions made in para-9 and 10 are not denied but it is stated that Sukhdeo Chamar never objected and claim the suit lands to be partitioned knowingly. The assertions made in para-11 of the plaint are correct. Further the lands of other co-sharers have also been described in schedule-B of the suit and as such they ought to be made contesting defendants along with these defendants. Besides the suit land described in the plaint the parties have also other J.B. lands recorded in the names of their ancestor in village Bishanpur, Birajpur, Katha Pakar and Kadarua all within S.C. Kasba Subdivision Dumka. The assertions made in para 12 and 13 of the plaint are denied. It is submitted that the suit lands are not in joint possession and enjoyment of the parties but the some are in their separate possession in all respect and the suit land which is 5 [S.A. No. 167 of 2024] recorded as Ijmal in the names of the recorded tenants and cultivating possession of the parties make proposal for partitioning the suit land and hence the question of partition of the suit lands does not arise. The assertions made in para 14 and 15 of the plaint are incorrect and the same are denied. The plaintiffs have no cause of action. The suit is liable to be dismissed with cost. 4. Mr. Manjul Prasad, the learned Senior counsel appearing on behalf of the appellants submits that the defendants in a partition suit have not deposed any evidence and inspite of that the suit has been decreed and approportionate share has been allotted to the parties which has been affirmed by the learned appellate court and in view of that, on this substantial question of law, this Second Appeal may kindly be admitted. 5. He further submits that presumption can be there in a partition suit. If the parties are in possession of exercising ownership right over separate lands for long time. He relied in the case of Mukhram Rai v. Chandradeep Rai, AIR 1936 Patna 68. 6. The Title (P) Suit No.14 of 1999 was instituted by the plaintiff for a decree of partition to the extent of half share in the suit land described in Schedule-A, A/1, A/2, A/3, A/4 and A/5 of the plaint and 1/6th share in Schedule-B land in favour of the plaintiff as against the defendants by metes and bounds. 7. The prayer is also made for appointment of Amin Commissioner and to deliver the possession. On the basis of the pleadings of the parties, the learned trial court has framed nine issued. 8. The learned trial court has taken up the issue nos.5 and 6 together which was with regard to the plaintiff’s right, title and interest and possession over the suit land and about the unity of title and unity of possession over the suit land. 9. The learned trial court has appreciated the documents exhibited by the 6 [S.A. No. 167 of 2024] plaintiff, such as, C.C. of Gantzer’s parcha of mouza Bishanpur no.15, 22, 35 of J.B. No.14, C.C of Gantzer’s parcha of mouza Kadarwa no.29 of J.B. no.6, C.C. of Gantzer’s parcha of mouza Barhirdih no.69 of J.B. no.14, C.C. of Gantzer’s parcha of mouza Kathapahar no.8 of J.B. No.7, C.C. of Gantzer’s parcha of mouza Birajpur of J.B. no.60/1 and C.C. of Gantzer’s parcha of mouza Jamurudih no.5 of J.B. no.13. The Hindi translation was filed by the plaintiff and in Ext. 1 the land of mouza Bisanpur J.B. no.15, 22, 35 touzi of the land was 445. The name of the owner of the land is given as Sonawati Kumari, d/o Mulhai Chamar and another name was entered as Shibu Chamar, Jitu Chamar, Bhagu Chamar, Horil Chamar names were entered jointly. They are said to be jamabandi raiyats and the settlement no. was 22/14. The total area in this parcha was given as the entire land of schedule A land was 4 bighas, 14 kathas, 13 dhurs. The khatiyan slip of J.B. no.14 was there where joint cultivation is said to be done in third column and land of J.B. no.14 is 3 bighas, 9 kathas, 17 dhurs and the land of J.B No.6 mouza Kadaruwa is said to be in the jamabandi lands owner name is written as Bhagu Chamar, Manu Chamar, Dulai Chamar, Sukhdeo Chamar and total lands in this parcha is said to be 3 bighas, 9 kathas, 17 dhurs and further the J.B nos have been considered by the learned trial court. The plaintiff has asserted that they were joint in mess and property and that he has stated in the para-10 of the Chief and in para-12 he has again stated about jointness of the property and that is again reiterated in para-17. In cross-examination, he has stated that they are eating separately and cultivating separately and in para-1 he says that Gantzer’s parcha at some place the name of Shibu and Mulahi half and some places not half and considering all these aspects the learned court has come to the conclusion that in light of the exhibits 1,2,3, 4,5 and 6, schedule land of A and B properties were joint and right, title and interest and possession over the suit lands. The unity of title was also found in light of the discussions made therein and thereafter the learned 7 [S.A. No. 167 of 2024] court has decided that issue and considering all these aspects has decreed the suit and proportionate share has been described in the judgment dated 24.5.2016. 10. Aggrieved with the said judgment, the defendant/ appellant has preferred the Civil Appeal No.18 of 2016 which was decided by the judgment dated 21.9.2024 by which the learned appellate court has confirmed the judgment of the learned trial court and dismissed the appeal. The learned appellate court has further framed the point to decide the appeal and after appreciating all the documents as well as the evidences of the PWs and DWs has found that there is no illegality in the judgment of the learned trial court. The learned counsel appearing on behalf of the appellant has also not been in a position to show any perversity in the judgment of the learned trial court as well as the appellant and the only argument was advanced that in absence of any evidence on behalf of the defendants the said judgments have been delivered. 11. What has been discussed hereinabove, there is no perversity in the judgment of the learned trial court as well as the learned appellate court and in view of that, the judgment relied by the learned counsel for the appellants is not helping the appellants. 12. There is concurrent finding of two learned courts and there is no perversity in the judgment and proportionate share of the property has been divided and the case is arising out of partition suit. 13. There is no substantial question of law involved in this appeal. As such, S.A. No.167 of 2024 is dismissed. ( Sanjay Kumar Dwivedi, J.) SI/,