( 2025:JHHC:28579 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 129 of 1992 (R) 1. Nem Mahto (died and substituted vide order dated 27/03/2001) 1(a) Pokhni Devi (widow) of Late Nem Mahto (died and substituted vide order dated 24.09.2008) 1(b)Chaman Mahto (died and substituted v.o.d. 02.09.2025) 1(b) (i) Sudhir Pal Verma 1(b) (ii) Laxshaman Verma, both sons of late Chaman Mahto, R/o village Balhara, P.O.-Taranakho, P.S. Dhanwar, District-Giridih 1(b) (iii) Summa Devi, aged about 69 years, W/o Jagdish Mahto,R/o Village-Barasinga, P.O.-Khorimoahya, P.S. Rajdhanwar, District-Giridih 1(b) (iv) Kanti Devi, aged about 42 years, W/o Rajendra Verma, R/o Village-Barmabiya, P.O.-Tara, P.S.-Jamua, District-Giridih 1(b) (v) Pramila Bharti, aged about 35 years, W/o Parkash Verma, R/o Village-Kharti, P.O.-Dabri, P.S.-Rajdhanwar, District-Giridih 1(b) (vi) Munniya Devi @ Muni Verma, aged about 32 years, W/o Naresh Verma, R/o village-Ledhasimar, P.O. Badhina, P.S. Hiradih, District Giridih 1(c) Nakul Mahto 1(d) Kalawati devi 1(e) Hadjri Devi 1(f) Balia Devi 1(g) Basant Devi 2. Bandhan Mahto (died and substituted vide order dated 27/03/2001) 2(a) Hiro Mahto (died and substituted vide order dated 16/01/2012) 2(a) (i) Kaili Devi (widow of appellant no. 2(a) 2(a) (ii) Sahdeo Verma, son of appellant no. 2(a) 2(a) (iii) Rahul Kumar minor son of appellant no. 2(a) 2(a) (iv) Saraswati Kumari (minor daughter of appellant no. 2(a) 2(a) (iii) and 2(a) (iv) represented through their natural guardian and mother Kaili Devi 2(a) (v) Gauri Devi D/o late Hiro Mahto and wife of Sri Chhotu Lal Mahto 2(a) (vi) Saroj Devi D/o late Hiro Mahto & wife of Sri Ranjeet Kumar Verma 2(b) Rameshwar Mahto, son of late Bandan Mahto (08/08/2025) 2(b) (i) Ashok Kumar Verma S/o late Rameshwar Mahto 2(b) (ii) Anita Devi W/o Manoj Verma 2(b) (iii) Urmila Devi w/o Goknath Kushwaha 2(b) (iv) Neelam Devi, wife of Pankaj Verma 2(c) Smt. Jamuni Devi, w/o Jhupar Mahto D/o late Bandhan Mahto 2(d) Smt. Kunti Devi, wife of Badri Mahto D/o late Bandhan Mahto 3. Rohni Devi daughter of Smt. Tipan Mahto, W/o Chamru Mahto 4. Jetu Mahto ( 2025:JHHC:28579 ) 2 5. Tejo Mahto (died and substituted vide order dated 26/4/2018) 5(a) Kesia Devi W/o Late Tejo Mahto (deleted vide order dated 9/5/2024) 5(b) Sunil Verma 5(c) Barun Kumar Verma, both sons of late Tejo Mahto 5(d) Jageshwari Devi D/o late Tejo Mahto 5(e) Shakuntla Devi D/o late Tejo Mahto 5(f) Manju Devi, D/o late Tejo Mahto, All residents of village-Khardeha, P.O. and P.S. Dhanwar, District- Giridih 6. Churaman Mahto alias Churo Mahto 7. Tilak Mahto (died and substituted v.o.d. 16/01/2012) 7(i) Malwa Devi, widow of late Tilak Mahto 7(ii) Ajay Kumar Verma, son of late Tilak Mahto 7(iii) Sikandar Verma, minor son of appellant no. 7 represented through his natural guardian Smt. Malwa Devi 7(iv) Mamta Devi, wife of Dinesh Prasad Verma 7(v) Babita Devi, wife of Pappu Prasad Verma, 7(iv) and 7(v) daughter of deceased appellant no. 7 8. Most. Rukni Devi (deleted vide order dated 27.09.2018) 9. Fagu Mahto (deleted) 9(i) Shakuntala Devi, W/o late Fagu Mahto 9(ii) Mahendra Verma 9(iii) Mukesh Kumar 9(iv) Arvind Kumar, 9(ii) to 9(iv) are sons of late Fagu Mahto, R/o village Khardiha, P.O. and P.S. Dhanwar, Giridih 9(v) Jamuna Devi D/o late Fagu Mahto w/o Raj Kumar Maurya, R/o Pawan Kuan, P.O. and Dist. Malhari Basti (U.P.) 9(vi)Asha Verma D/o late Fagu Mahto W/o Madan Kumar Verma, R/o village Jorashankh, P.S. Jamua, Giridih 10. Khiro Mahto 11. Bahudeo Mahto alias Baso Mahto 12. Somar Mahto 13. Kali Mahto 14. Budni Devi, W/o Chhotu Lall 15. Shanti Devi W/o Rohan Mahto No. 8 is widow, 10 to 12 are sons and 13 to 15 are daughters of late Heman Mahto and are residence of village Khardesha, P.S. Dhannar, dist. Giridih No. 15 is resident of village Kadudih, P.s. Karkatcha dist. Hazaribagh 16. Kewali Devi widow of late Prem Mahto (deleted vide order dated 4/10/2017) 17. Bhikho Mahto 18. Khem Chand Mahto 19. Khiria Devi 20. Bundia Devi, all are sons and daughters of late Prem Mahto 21. Dhalo Mahto 22. Tukani Kumari alias Tukani Devi, daughter of Prem mahto (now majors) resident of village Balhara, P.S. Dhanwar, Dist. Giridih … Defendants/Respondents/Appellants ( 2025:JHHC:28579 ) 3 Versus 1.Smt. Hulia Devi (deleted vide order dated 25.02.2021) 2. Smt. Sabitri alias Maugli Devi 3. Smt. Kaili, all daughters of Late Degan Mahto 4. Smt. Tipni widow of Late Degan Mahto(deleted v.o.d. 16/01/2012) 5. Jagdish Mahto, S/o Newal Mahto, all by caste Koeri Mahtos, by occupation, cultivators, all are resident of village Balhara, P.S. Dhanwar, District-Giridih 5(i) Aruna Devi W/o Hari Mahto 5(ii) Sumitra Kumari 5(iii) Raj Kumari 5(iv) Chandra Kala Kumai 5(v) Sadanand Mahto 5(vi) Suresh Mahto 5(ii) to 5(vi) minor sons and daughters of Jagdish Mahto, resident of Village, Balhara, P.S. Dhanwar, District-Giridih … … Plaintiffs/Appellants/ Respondents 6. Bedni Devi, wife of Alho Mahto (abated vide order dated 21.08.1995) 7. Harkhu Mahto (respondent no. 7 died and substituted vide order dated 31.01.2013) 7(i) Yasoda Devi w/o Late Harkhu Mahto 7(ii) Arjun Pd. Verma, S/o Late Harkhu Mahto Both resident of village-Lodhipur Panchayat, and P.O. Arkhango, P.S. Dhanwar, Dist. Giridih 8. Jasoda devi, W/o Late Lalit Mahto, (abated vide order dated 25/07/2022) 9. Tekri Devi wife of Chhatar Mahto, resident of village Arkhango, tola Lodhipur, P.S. Dhanwar, District-Giridih … Performa defendant/Respondent/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Manjul Prasad, Senior Advocate : Mr. Akhouri Prakhar Sinha, Advocate For the Respondents : Mr. Ram Kumar Tiwari, Advocate : Mr. Awadhesh Pandey, Advocate : Mr. Bijay Kumar Sinha, Advocate --- 44/04.09.2025 Heard the learned counsel appearing on behalf of the parties. 2. This appeal has been filed against the judgment and decree dated 30.09.1992 (decree signed on 10.11.1992) passed by the learned 4th Additional District Judge, Giridih in T.A. No. 116/120 of 1988-91, whereby the judgment and decree dated 11.07.1988 (decree signed on 22.07.1988) passed by the learned Subordinate Judge, III, Giridih in Title Suit No. 25/18 of 1978-79 has been reversed. ( 2025:JHHC:28579 ) 4 3. The prayer made in the suit is as follows: “(a) It be adjudicated that since Nankhu died in a state of jointness with his son Degan who succeeded him by right of survivorship in the year 1952 and proforma defendant no.6 and Lakhia Devi and after her death proforma defendant no.7 had no right title or interest over the lands possessed jointly by Nankhu and Degan and therefore the sale deeds dated 5.5.77 executed by proforma-defendants no.6 to 7 in favour of the defendant no.1 to 5 is sham, illegal void-ab-initio, a paper transaction with consideration and is null and void and are not binding on the plaintiffs. (b) a decree for the cost of the suit be given to the plaintiffs. (c ) any other relief or reliefs to which the plaintiffs may be found entitled in law and equity be given to the plaintiffs. (aa) That it be further declare that the plaintiffs are the owners of 1/3rd of the lands owned and held by kheman in khata no.17 of village Balahara. (added vide order dated 17.12.1985)” 4. This appeal was admitted for final hearing on 07.12.1993 on the following substantial question of law: “(i) Whether in view of the documentary evidence (Ext. 1 series) being several decisions showing transaction between the parties establishing the factum of previous partition and showing that such partition being acted upon, the claim for partition and for title is barred by the principles of estoppel, waiver and acquiescence and is vitiated under the provision of Section 52 and 116 of the Evidence Act? (ii) Whether the suit being a suit for declaration of title upon adjudication of the real controversy with regard to the partition and for possession could have been turned to be a simple suit for declaration and could be dealt with under Section 7 (iv) (c) of the Court Fee Act?” 2nd substantial question of law. 5. Submission on behalf of the appellants on the 2nd substantial question of law A. The learned counsel for the appellants has submitted that the learned trial court held that ad valorem court fees was payable and consequently, held that the suit was not maintainable on account of non-payment of ad valorem court fees. He submits ( 2025:JHHC:28579 ) 5 that specific issue was framed by the learned trial court to that effect. So far as the learned 1st appellate court is concerned, this finding was reversed and it was held that fixed court fee was sufficient. The learned counsel submits that considering the nature of relief prayed for, ad valorem court fees would be payable and the finding of the learned 1st appellate court is not in accordance with law and accordingly the same is fit to be set aside and the substantial question of law be answered in favour of the appellants. B. The learned counsel has relied upon the judgement passed by the Hon’ble Supreme Court reported in (2010) 12 SCC 112 (Suhrid Singh alias Sardool Singh Vs. Randhir Singh and Others) and submitted that different situations have been considered by the Hon’ble Supreme Court while considering the issue as to when the ad valorem court fees or fixed court fees will be payable. Submission on behalf of the respondents on the 2nd substantial question of law 6. The learned counsel for the respondents has opposed the prayer and submitted that no consequential relief was prayed for, and therefore, there was no question of ad valorem court fees. He has submitted that the sale deed was not executed by the plaintiffs and there was a specific relief seeking a declaration that the sale deed was void and he submits that the fixed court fees payable for declaration was required to be paid. He submits that the learned 1st appellate court has considered the matter properly and therefore the substantial question of law no.2 is fit to be answered against the appellants and in favour of the respondents. Findings of this court on the 2nd substantial question of law. 7. The perusal of the prayer reveals that the plaintiffs did not seek even an alternative relief seeking possession of the property. The perusal of the plaint also reveals that the sale deed which they sought to be declared as null and void was not executed by any of the plaintiffs. The plaintiffs being in possession, they simply sought a ( 2025:JHHC:28579 ) 6 declaration that the sale deed in connection with the property in their possession was null and void. Essentially the suit was a declaratory suit. 8. This Court also finds that a further relief was introduced in the plaint seeking partition of the suit property and claiming 1/3rd share. The records reveal that fixed court fees with respect to the claim of partition was also prayed. 9. In the aforesaid judgement passed by the Hon’ble Supreme Court cited by the learned counsel for the appellants, different situations have been considered with respect to the relief seeking cancellation of sale deed. Paragraph 7 of the aforesaid judgement is quoted as under: “7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non- executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not only a ( 2025:JHHC:28579 ) 7 declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.” 10. Keeping in mind the aforesaid ratio and examples as mentioned in the aforesaid judgement passed by the Hon’ble Supreme Court in the matter of determination of court fees, this Court is of the view that fixed court fees was payable in the light of the nature of relief sought for in the plaint. The finding of the learned 1st appellate court holding that fixed court fees was payable is in accordance with the judgement passed by the Hon’ble Supreme Court reported in (2010) 12 SCC 112 (supra). Accordingly, the 2nd substantial question of law is answered against the appellants and in favour of the respondents. 1st substantial question of law. 11. The name of common ancestor is Baldeo Mahto who had four sons, namely Nanhku Mahto, Bhairo Mahto, Khehar Mahto and Kheman Mahto. The plaintiff no. 1 to 4 were the daughters of Degan Mahto son of Nankhu Mahto; plaintiff no. 3 was the widow of Degan Mahto; plaintiff no. 6 - Jagdish Mahto was the husband of plaintiff no.3. Defendant no. 1 to 4 were descendants of Khehar Mahto and defendant no.5 was descendant of Bhairo Mahto. The 4th brother Kheman Mahto died issueless and as a widower in the year 1931. The defendant no. 6 was the daughter of Nanhku Mahto and defendant no.7 was the grandson of Nanhku Mahto through another daughter Lakhia. Daughters of Rupan Mahto [the 2nd son of Nanhku Mahto] were made proforma defendant no. 8 and 9. The sale deed dated 05.05.1977 executed by defendant no. 6 and 7 in favour of defendant no. 1 to 5 was challenged as void ab initio and a declaration was also sought that the plaintiffs are owners of 1/3rd of the land left by Kheman Mahto, who died issueless and as a widower in the year 1931. ( 2025:JHHC:28579 ) 8 12. The case of the plaintiffs in Title Suit No. 25 of 1978 was as under: - a. One Baldeo Mahto had four sons namely Nanhku Mahto, Bhairo Mahto, Kehar Mahto and Kheman Mahto and he had raiyati jama in village Balhara and it was in his joint possession with his sons and member of Joint Hindu Undivided Family. Baldeo Mahto had inducted dar-raiyats over portion of the property. Baldeo Mahto died in jointness and his sons disrupted the joint family. b. In the last survey operation, the said raiyati jama was recorded under Khata No. 17 in the name of his four sons of Baldeo Mahto (Nanhku Mahto, Bhairo Mahto, Kehar Mahto and Kheman Mahto) in defined equal share in separate takhtas and exclusive possession was recorded in remarks column. However, the land in the hand of Dar-raiyats were shown Sammilat (joint) and those lands were not divided amongst the four brothers. The facts regarding the land in possession of Dar- raiyats is as follows: - (i) Dar-raiyat Miran Mian died issueless after survey and upon his death the dar raiyati plots no. 694 and 696 came in khas possession of the sons of Baldeo Mahto. Further Miran Mian held plot no. 655 and 686 in mortgage and these plots also came in khas possession of the four brothers. (ii) Dar-raiyat Dayal Mahto also died after survey and his family became extinct. Therefore, his raiyati plots also got in khas possession of four brothers. (iii) The descendants of Dar raiyat Kripali Mahto surrendered the plot no. 801,808,782,706 and 762 in 1970 to the plaintiffs/defendants and other heirs of Bhairo and these persons are in possession by dividing the same. c. Further specific case of the plaintiffs was as under: - a. Soon after survey, Nanhku, Kheman, sons of Bhairo and Khehar in or about the year 1928 divided the Sammilat (joint) plots, which were in their khas cultivating possession, as per convenience but without any partition by metes and bounds. ( 2025:JHHC:28579 ) 9 b. The separate land in possession of Nanhku Mahto in the Sammilat (joint) plots is described in schedule-B of plaint and the properties which were allotted to him before survey has been described in schedule-A of the plaint. c. On 05.07.1926 Nanhku Mahto obtained raiyati settlement of three bighas 17 katthas of gair majarua land which he had already reclaimed with the permission of the then landlord by virtue of registered patta and continued in exclusive possession. Nanhku Mahto further obtained raiyati settlement of 1.38 acres from the same landlord by an un-registered patta dated 07.09.1943 and continued in possession. These lands have been described in schedule-C of the plaint and are claimed to be his self-acquired property. d. Nankhu Mahto had two sons Rupan Mahto and Degan Mahto and these three amongst themselves constituted a joint Hindu Undivided family. e. Rupan Mahto and his wife predeceased Nanhku Mahto while in a state of jointness in the year 1928 leaving two daughters namely Jashoda and Tekni who were proforma defendant nos. 8 and 9. f. After death of Rupan Mahto, his father Nanhku Mahto and his brother Degan Mahto continued as members of joint Hindu undivided family and remained in possession of Schedule-A to Schedule-C of the land by rule of survivorship. g. Nankhu Mahto died in a state of jointness with his son Degan in the year 1952 leaving his only son Degan and two daughters and therefore upon Nanhku’s death, Degan succeeded by right of survivorship as a sole surviving co-parcener and came in exclusive possession of Schedule-A to Schedule-C of the plaint. Degan Mahto son of Nankhu Mahto had two daughters, namely ( 2025:JHHC:28579 ) 10 ,Bedni (proforma defendant no. 6) and Lakhia. Lakhia died leaving behind her only son Harkhu Mahto (proforma defendant no. 7). h. After vesting of Jamindari, rent for khata No. 17 was paid jointly by contribution of all the owners of Khata no. 17 and sometimes the karamchari, have been accepting proportionate rent from one or the other owners and was issuing rent receipt without any sense of proportion. But owners were paying rent according to their respective shares. i. Bhairo Mahto had left behind two sons Shibu Mahto and Latal Mahto. Shibu Mahto left behind two sons Heman and Mohan. Heman was defendant no. 5. j. Similarly, Khehar had left behind four sons Nem, Bandhan, Tipan and Pem who were defendant nos. 1 to 4. Tipan had three sons Tajo, Tilak and Churo. k. It was the case of the plaintiffs that the 4th brother Kheman Mahto died issueless in the year 1931 and his interest in the land in Khata No. 17 was succeeded by Nanhku, Khehar and Bhairo and they came in possession of the property by dividing the land of Kheman. l. Degan Mahto died in the year 1954 leaving behind his widow Mosomat. Tipni (plaintiff no. 5) and four daughters Hulia, Savitri, Deoli and Kaili [plaintiff no. 1 to 4] . Therefore, upon death of Degan Mahto, the entire interest left by Degan Mahto in the land Schedule-A to Schedule-C devolved upon them and they came in exclusive possession of Schedule-A to Schedule-C property. m. So far as land described in Schedule-B is concerned, Most. Tipni paid rent exclusive for the land of Khata no. 17 and subsequently rent was also realized from her without any sense of proportion from Khata no. 17 and she and others were being separately issued rent receipt. ( 2025:JHHC:28579 ) 11 n. It was further case of the plaintiffs that after death of Degan, in the year 1968-69 the defendants started troubling and they began to lure the daughters of Rupan Mahto (proforma defendant no. 8 and 9) to foster litigation by executing some sham sale deeds in their favour. However, the plaintiffs, although being aware that defendant nos. 8 to 9 had no interest whatsoever with respect to the schedule-A to Schedule- C of the land of the plaint, obtained a formal deed of sale from proforma defendant no. 8 and 9 with respect of Rupan’s supposed undivided share on 17.06.1969 both in favour of plaintiff nos. 1 to 3. o. Plaintiff no. 5 being sonless, kept plaintiff no. 6 (husband of plaintiff no. 3) as her Gharjamai thought it fit and proper to transfer half of the land described in schedule-A to C in the name of her daughters and son- in-law, plaintiff no. 1 to 4 and to retain half for her herself till her life time. Thus, plaintiff no. 5 executed a sale deed in respect to some portions of Khata no. 17 and khata no. ½ and 1/23 in favour of plaintiff nos. 3 and 6 on 28.05.1969 and another sale deed on 09.08.1969 with respect to some portion of land in Schedule-A to C in favour of plaintiff no. 2 to 4. p. The plaintiffs have stated that they have joint title to land in schedule-A to schedule-C and have been in peaceful, uninterrupted and continuous possession to the knowledge of the defendants and the proforma defendants and the whole world. q. The defendants somehow won over proforma defendant nos. 6 and 7 and got two sale deeds executed in their favour on 05.05.1977 purporting to be with respect to 8 annas share in the lands described in schedule-A to Schedule-C which were belonging at one time to Nanhku Mahto and thereafter to Degan his only ( 2025:JHHC:28579 ) 12 surviving son. It was asserted that such transfer was without any authority and sale deeds executed by proforma defendant no. 6 and 7 in favour of defendant no. 1 to 5 dated 05.05.1977 were sham, paper transaction, void ab initio and illegal and without consideration. r. In such circumstances, the plaintiffs were advised to seek a declaration that the sale deed dated 05.05.1977 are not binding upon the plaintiffs. 13. Schedule A property is 1.88 acres of land in Khata No. 17 ; Schedule-B property is 2.09 ¼ acres of land under Khata No. 17 and Schedule-C property is in two parts- Item 1 and item 2. Item 1 is 3 bighas 17 katthas of land under parent Khata No. 1 Butta Khata No. 1/2 and item 2 is area 1.38 acres of land under parent Khata No. 1 Butta Khata No. 1/23. Case of the defendants. 14. Defendant no. 1,2,3,4(a) to 4(g) ,5 and 7 filed written statement opposing the plaintiffs and separate written statement was filed by the defendant no. 6,8 and 9 supporting the plaintiffs. 15. The contesting defendants raised several technical objections including objection regarding non joinder of necessary parties with respect to the branch of Khehar Mahto and Bhairo Mahto. The objection was also raised in connection with requirement to pay ad- valorum court fees. Apart from the aforesaid technical objections, it was the case of the defendants that in the survey settlement operation, the land under Khata No. 17 was recorded as raiyati right in the name of Nanhku Mahto, Bhairo Mahto, Khehar Mahto and Kheman Mahto, all sons of Baldeo Mahto, and they were in possession and they were separated after the death of Baldeo Mahto. They were cultivating some land of Khata No. 17 separately and some lands were in possession of Dar-raiyat. 16. The land of Khata No. 17 which was in possession of Nanhku Mahto was recorded as Kabjawadi of Nanhku Mahto during the last survey settlement operation. Similarly, the lands which were in ( 2025:JHHC:28579 ) 13 possession of Bhairo, Kehar and Kheman were also in their respective Kabjawadi during the last survey settlement operation. Similarly, the land of the aforesaid Khata no 17 which were in possession of dar- raiyats were recorded as sammilat (joint) during the last survey settlement operation. 17. It was their case that after the death of Dar raiyats, the land of Khata No. 17 came in Khas possession of the raiyats and it was divided into four equal shares. Although the sammilat (joint) lands were never partitioned by metes and bounds and they began to cultivate the same as per their convenience. 18. It was alleged that it was false to say that sons of Bhairo Mahto divided the Sammilat land in the year 1928 and it was also asserted that the sons of Baldeo amicably divided the sammilat (joint) land in the year 1925 and each got 1/4th share with respect to khata no. 17. It was denied that the schedule-B property of the plaint was allotted to the share of Nanhku Mahto. It was asserted that Nanhku Mahto got his share in the Sammilat (joint) land by way of 1/4th in each and every plot of land and it was not correct on the part of the plaintiffs to say that the entire area of Schedule-B of the plaint was allotted in the share of Nanhku Mahto. Altogether 101 plots were recorded as sammilat (joint) during survey. It was correct to say that Schedule-A of the plaint were Kabjawadi land of Nanhku Mahto which he got in partition before the last survey and settlement operation. It was correct to say that Nanhku Mahto acquired the area of 3 bigha and 17 Kattha of gair majarua land from the then landlord. It was asserted that it was not correct to say that Nanhku Mahto took raiyati settlements from the ex-landlord. It was asserted that it was not correct to say that Rupan Mahto died in the year 1928. As a matter of fact, Rupan Mahto died in the month of December 1956 leaving behind his widow and two daughters namely Jasoda Devi and Tekni who were the defendant no. 8 and 9 respectively in the suit. Degan Mahto had died in the year 1954. Both the sons of Nanhku Mahto died during the life time of their father. It was asserted that Nanhku Mahto died in the year 1957 leaving behind his two daughters namely Lakhia, Bedni Devi and the ( 2025:JHHC:28579 ) 14 heirs of his son Degan Mahto and also the heirs of his son Rupan Mahto. 19. It was the specific case of the defendants that Nanhku mahto died after passing of Hindu Succession Act, 1956 and the said two daughters of Nanhku Mahto, namely Lakhia and Bedni Devi, succeeded right, title, interest and possession of their father and they came in possession of ½ share of property of Nanhku Mahto and remaining ½ share devolved upon the heirs of Degan Mahto and Rupan Mahto. It was the case of the defendants that Nanhku Mahto had two sons and two daughters and the sons of Nanhku died during the life time of their father , accordingly, Lakhia got 1/4th share and Bedni got 1/4th share in the properties of Nanhku Mahto. It was denied that Nanhku and Degan came in possession of entire area of Schedule- B land and it was asserted that Nanhku came in possession only to the extent of his share i.e. 1/4th share along with other Sammilat (joint) lands. The story of survivorship as asserted by the plaintiffs was denied. 20. It was also denied that Nanhku Mahto died in the year 1952 leaving behind his only son Degan and it was false to say that Degan succeeded his father by right of survivorship as a sole surviving co- parcener and came in exclusive possession of Schedule-A to Schedule-C land of the plaint. It was their case that upon death of Nanhku Mahto in the year 1957, his property devolved upon his daughters and heirs of Rupan and Degan by virtue of Hindu Succession Act, 1956 and not by survivorship. 21. Ultimately it was asserted that Bedni Devi [daughter of Nanhku Mahto] and Harkhu Mahto [ son of Lakhia - daughter of Nanhku Mahto] fell in need of money and they sold the interest of Khata No. 17 with respect to the property which Nanhku Mahto got settlement from the ex-landlord. The sale deed was executed by two registered deeds dated 05/05/1977 in favour of sons of Khehar Mahto, who were defendant no. 1 to 4 for valuable consideration. The defendants also claimed that they were in exclusive possession openly, ( 2025:JHHC:28579 ) 15 adversely and continuously and they have also been paying rent with respect to the property. 22. It was also asserted that Kheman Mahto, son of the common ancestor Baldeo Mahato, died in the year 1957 leaving behind his only daughter Bhatni Devi who succeeded her father and came in possession over the Kabjawadi land of her father and also other lands including the sammilat (joint) land of Khata No. 17 and she sold the same by registered sale deed dated 20.04.1977 and the purchasers were in possession of such land. It was asserted that it was false to say that daughter of Rupan Mahto [son of Nanhku] had no right, title and interest over the land of Nanhku and it was also false to say that the sale deeds which were executed by daughters of Rupan were sham sale deeds. It was asserted that Rupan’s daughters had 1/4th right and title with respect to the suit properties and accordingly the daughters of Rupan sold the same in favour of different persons including the plaintiffs. It was asserted that the sale deeds dated 28.05.69 and 09.08.69 were collusive transactions. It was asserted that Nanhku Mahato died in the year 1957 leaving behind his two daughters , namely Lakhia (mother of defendant no.7) and Bedni (defendant no.6) and they succeeded the interest of their father over the lands of schedule A to C and other properties and came in possession of 8 annas which they sold to the defendant no. 1 to 5 by registered sale deed and it was false to say that the transactions were null and void. It was denied that Nanhku died in the year 1932 and Degan inherited the property by survivorship. It was asserted that Nanhku died in the year 1957 after coming into force of Hindu Succession Act, 1956 and both his sons died after him and there is no question of survivorship rather the properties devolved through succession. 23. A separate written statement was filed by defendant nos. 6, 8 and 9 who stated that Kheman Mahto died issueless and widower in the year 1931 leaving behind his brother Nanhku, Kehar and Bhairo who succeeded by right of succession and came in possession of the land of Khata No. 17. It was also asserted that Nanhku Mahto had died in the year 1952 and the defendant no. 6 and her sister Lakhia did not ( 2025:JHHC:28579 ) 16 succeed their father Nanhku as Nanhku died in the state of jointness with his son Degan as a member of joint Hindu Family. It was asserted that the sale deeds dated 05.05.1977 was sham and paper transaction and were void ab initio and without consideration and certain deeds of cancellation were also executed. It was asserted that Nanhku mahto did not die in the year 1957, but he died in 1952 and defendant no. 6 and Lakhia, both daughters of Nanhku, neither inherited Nanhku Mahto’s property nor they got any share in his property. Kheman did not die in 1957, but he died in 1931 without any issue and a widower. It was also asserted that Bhatni was not the daughter of Kheman nor she succeeded Kheman and that the sale deed executed by Bhatni in favour of Smt. Pokhni, Girija and others dated 20.04.1977 is a shame and fraudulent deed. However, the sale deed dated 20.04.1977 was not the subject matter of the suit. 24. Additional written statement was also filed by the contesting defendants and it was stated that Kheman mahto died in the year 1957 leaving behind his only daughter Bhatni who succeeded his property in Khata No. 17 and she executed the registered sale deed dated 20.04.1977. It was stated that it was false to say on behalf of the plaintiffs that Nanhku Mahto died in the year 1952, rather he died in the year 1957. It was asserted that Nanhku Mahto died after passing of the Hindu Succession Act,1956 therefore his daughters got right, title, interest and possession over the property which Nanhku had acquired from the ex-landlord vide patta dated 05.07.1926 and 07.09.1943. 25. The learned Trial Court framed the following issues for consideration which are as under: - (i) Is the suit maintainable in the present form? (ii) Is the suit barred by law of limitation? (iii) Is there any cause of action for the present suit? (iv) Is the suit defective for the non-joinder of the parties? (v) Are the plaintiffs entitled to get any relief or reliefs without paying the Advolerum Court fee? (vi) Have the plaintiffs got locus-standi to file the present suit? And to seek the reliefs as they made the averment in the plaint? (vii) Whether the plaintiffs suppressed the real facts in their pleadings or not? ( 2025:JHHC:28579 ) 17 (viii) Whether Schedule ‘B’ plots were partitioned amongst the sons of Baldeo Mahto as the plaintiff stated in their pleadings in the year 1922? (ix) Whether the sale deeds dated 5.5.77 executed by the Bedni Devi and Harkhu Mahto in favour of defendant nos. 1 to 5 are legal, valid, genuine and for consideration? (x) Are the plaintiffs entitled to get any relief or reliefs as they prayed in the relief portion of the plaint? 26. The learned trial court first decided issue no. IV and VIII against the plaintiffs and held that there has been no partition amongst the four sons of Baldeo Mahto and as such descendants of the three brothers of Nanhku Mahto, namely, Bhairo, Kheman and Kehar were necessary parties. The issue no. II was decided in favour of the plaintiffs by holding that the suit was not barred by limitation. The issue no. VII was not answered by stating that it was not of much importance. The issue no. V was decided against the plaintiffs by holding that ad-valorem court fees and not fixed court fees was payable . Issue no. IX was decided against the plaintiffs by holding that Nanhku Mahto died after 1956 and hence the sale deeds executed by Bedni Devi [daughter of Nanhku Mahto] and Harkhu Mahto [ son of Lakhia - daughter of Nanhku Mahto] both dated 05.05.1977 in favour of defendant no. 1 to 5 were valid and the issue was decided against the plaintiffs. The issue no. I, III, VI and X were decided against the plaintiffs by holding that the suit was not maintainable in the present form and the plaintiffs had no cause of action. The suit was dismissed. 27. The learned trial court while deciding issue nos. (ii) and (iv) observed that as per the records and according to the pleadings of the plaintiffs, Nanhku Mahto had two sons, Rupan and Degan Mahto. Rupan and Degan died before Nanhku Mahto in a state of jointness in quick succession in or about the year 1928 leaving only two daughters Jasoda Devi and Tekni Devi (proforma defendant no. 8 and 9) and therefore it was asserted that proforma defendant no. 8 and 9 had no legal right and according to the plaintiffs, after death of Rupan, his father Nanhku and his brother Degan became the owner of Schedule- A to Schedule-C property by way of survivorship and as per paragraph ( 2025:JHHC:28579 ) 18 15, the plaintiffs by way of abundant precaution got sale deed registered with respect to Schedule-A to Schedule-C property in their favour from the defendant nos. 8 and 9. The learned courts specifically referred to the fact that plaintiff no. 1 to 3 got two such sale deeds executed by defendant nos. 8 and 9 on 17.06.1969 with respect to Rupan’s supposed undivided share and by this very fact, it was falsified that there was partition of sammilat land (joint) amongst four sons of Baldeo mahto. The learned court specifically recorded a finding that there was no partition amongst the descendants of Baldeo Mahto in the year 1928. The learned courts also recorded that the descendants of all the members of the branch of Bhairo, Kheman and Kehar were necessary parties and the suit was defective for non- joinder of necessary parties. 28. While deciding issue no. (ix) which was a main issue in this case, the learned trial court recorded that Nanhku Mahto had died after 1956 so the sale deed executed by Bedni Devi and Harkhu on 05.05.1977 in favour of defendant nos. 1 to 5 was not illegal and void. The learned Trial Court considered the documentary evidences on record in paragraph 44 and 45 and dealt with each one of them and came to a conclusion that the Exhibit-1 series did not show that there was partition amongst the four sons of Baldeo Mahto. The learned court thereafter observed that the most important point was the year of death of Nanhku Mahto as to whether he died in the year 1952 or in the year 1957 and after having held that Nanhku Mahto had died after 1956 ultimately held that the sale deed executed by his daughter and daughter’s son on 05.05.1977 was not illegal and void. 29. The learned 1st appellate court framed five points for determination as under: - (1) Is the suit defective for non-joinder of necessary parties? (2) Are the plaintiffs/appellants entitled to get relief without paying the advolerem court fee? (3) Whether Nanhku Mahto died in the year 1957 or 1951? (4) Whether the sale deed dated 05.05.77 executed by Bedni Devi and Harkhu Mahto in favour of defendant ( 2025:JHHC:28579 ) 19 nos. 1 to 5 are sham, illegal, void and without consideration? (5) To what relief or reliefs, if any, the plaintiffs/appellant are entitled to? 30. The learned 1st appellate court after considering the materials has recorded a clear finding that Nanhku Mahto had expired in the year 1951 i.e. prior to coming into force of Hindu Succession Act, 1956 and also without consideration with respect to the sale deeds and consequently held that the sale deed dated 05.05.1977 executed by Bedni Devi and Harkhu Mahto in favour of defendant nos. 1 to 5 was sham, illegal and void. The findings in paragraph 25,26,28 which is quoted as under:- “25…………..Under the above facts and circumstances of the case, it is quite established that Nanku Mahato died in the year 1951 before passing of the Hindu Succession Act, 1956 and admittedly Degan Mahto, son of Nanhku Mahato was alive then and so the whole property belonging to Nanhku devolved to his son Degan Mahto. 26. At this stage, I would like to refer the written statement submitted by defendant nos. 6,8 and 9 and defendant no. 6 is also one of the executants of the said sale deeds of 1977 which have been assailed in the suit. They have also claimed that Nanhku died in the year 1952 and the sale deeds executed on 05.05.1977 is sham and fraudulent document. At this stage, I would like to mention here that the none of the executor is examined on behalf of the defendants/respondents to substantiate the story of payment of consideration amount in the sale deeds which also goes against, the pleading of the defendants/respondents. 27…….. 28. Under the above facts and circumstances of this case, I find and hold that Nanhku mahto died in the year 1951 and as such the sale deed executed by Bedni Devi and ( 2025:JHHC:28579 ) 20 Harkhu Mahto in favour of the defendants are sham, illegal and without consideration. Accordingly, both points are answered.” 31. The sale deeds dated 05.05.1977 (exhibit-A) executed by defendant no. 6 and 7 in favour of the defendant no. 1 to 5 were held to be without consideration and the finding has become final. 32. The 1st substantial question of law is, whether in view of the documentary evidence (Ext. 1 series) being several decisions showing transaction between the parties establishing the factum of previous partition and showing that such partition being acted upon, the claim for partition and for title is barred by the principles of estoppel, waiver and acquiescence and is vitiated under the provision of Section 52 and 116 of the Evidence Act? 33. This question is primarily related to issue no. VIII as framed by the learned trial court as to, whether schedule-B plots were partitioned amongst the sons of Baldeo Mahto as stated by the plaintiffs in the pleadings in the year 1928? 34. The learned Trial Court referred to the various exhibits including exhibit-1 series in paragraph 31 of the judgment. It has been recorded by the learned Trial court that all the rent receipts of exhibit- 2 series were of Mouza Karamtand which were schedule-C of the plaint but the plaintiffs have not shown any rent receipt with respect to Schedule-A to Schedule-B of the plaint. 35. The learned Trial Court has , interalia, referred to sale deed contained in exhibit-1 series , 2 series the rent receipts in Paragraph 31 of the judgement in the following manner:- “31. The plaintiffs have also proved some documents which are ext. 1 to 1/g, ext. 2 to ext. 2/g, ext. 3 to 3/h and ext. 4 of death register or Dhanbar P.S. of 1951 showing Nanhku Koriry son of Baldeo Koiry or village Balhara to have died on 25.11.1951. Ext. 1 series are showing various transfers of land by registered sale deeds in various period by various vendors in favour of various vendees. Ext. 1 is registered sale deed dated 13.06.70 in which Nem Mahto, Bandhan Mahto, ( 2025:JHHC:28579 ) 21 Tipan Mahto, Pem Mahto, latal Mahto, Heman Mahto, Choba Mahto, Jagdish Mahto, widow Hulia w/o Degan mahto, Smt. Deoli Devi, Smt. Mongali Devi and Smt. Kaili Devi have stood as vendor who executed sale deed in favour of Bhairo Mahto, Narain Mahto, Bhun Mahto and Datu Mahto, comprise him 80 decimal of land under Khata No. 17 for a consideration amount of Rs. 156 only. Ext. 1/A was executed in favour of Nathu Mahto and Hari Mahto on 13.06.70 by vendors of Ext. 1 here the consideration amount 146 Rs. whereby 67 decimal of land under Khata No. 17 was sold to the vendee. Ext. 1/B is a sale deed executed by Smt. Deoli Devi and Smt. Hulia Devi in favour of Jagadish Mahto for a consideration money of 3500. Ext. 1/C is a sale deed dated 7.8.69 to have been executed by Tipni Devi in favour of her daughter Mongali Devi and Kaili Devi. Ext. 1/D is a sale deed executed by Smt. Jasoda Devi and Smt. Tipni Devi in favour of Hulia Devi, Deoli Devi and Sabitri Devi on 17.06.69. Ext. 1/E was executed by Sabitri Devi @ Smt. Mangali Devi in favour of her sister Deoli Devi . Ext. 1/F is a registered sale deed executed by Jasoda Devi and Tekni Devi on 16.06.69 in favour of Hulia Devi, Sabitri Devi and Deoli Devi. Ext. 1/G and 1/H are certified copy of sale deed whose formal proved were waived. Ext. 2 series are eight Government rent receipts. Ext. 2 to 2/G bears the name of Nanhku mahto as the name of raiyat and the rent was paid by Tipni Devi the J.B. No. in these receipts very such as ext. 2, 2/E, 2/F are concerned with J.B. No. ½ while ext. 2/A, 2/B, 2/C and 2/D are rent receipts of J.B. No. 1/23 all rent receipts of ext. 2 series are of mouza karamtand schedule ‘C’ of the plaint are the lands of mouza Karamtand but the plaintiffs have not shown any rent receipts regarding Schedule-‘A’ and ‘B’ land of the plaint why so is not explained by the plaintiffs.” ( 2025:JHHC:28579 ) 22 36. In light of the aforesaid discussion, the 1st substantial question of law is to be answered and it has to be seen as to whether the documentary evidence (Exhibit-1 series)- the various sale deeds which were transactions amongst the parties, established the factum of previous partition and also whether they also show that such partition was acted upon and if that be so, whether the claim for partition and for title was barred by the principles of estoppel, waiver and acquiescence and was vitiated under the provision of Section 52 and 116 of the Evidence Act. 37. 37. This court finds that the exhibit-1 series have been considered by the learned Trial Court and the Trial Court came to a definite finding that there has been no partition in the year 1928 amongst the descendants of Baldeo Mahato, the common ancestor so far as the joint land of four brothers are concerned and held that the suit was bad for non-joinder of necessary parties as the descendants of all branches were not made party . The learned 1st appellate court recorded that the necessary parties were already on record and also observed that the plaintiffs were seeking partition only with respect to 1/3rd share in the properties of Kheman Mahato son of Baldeo Mahato who is said to have died issueless and a widower way back in the year 1931. 38. The learned counsel for the appellants has placed reliance on exhibit-1/c sale deed dated 07.08.1969 which is a sale deed executed by Tipni Devi in favour of Mangli Devi and Kaili Devi, both daughters of Degan Mahato to submit that there was previous partition. It has been found that in the sale deed it has been recorded that there was amicable partition for convenience. This court is of the considered view that amicable partition for convenience cannot be termed as partition by metes and bound. There is a detailed discussion of the various sale deed in paragraph 44 of the judgement and has recorded they do not record previous partition. No other documents amongst exhibit 1 series refers to previous partition by metes and bound. The learned counsel for the appellant has not pointed out any such recital in any of the registered deeds in exhibit-1 series which could show that there was ever any partition by metes and bounds. ( 2025:JHHC:28579 ) 23 The exhibit- 1 is sale deed dated 13.06.1970 which reveals that it was sold jointly by the descendants of three brothers and admittedly one out of four brothers had died issueless and the sale deed itself indicates that there was indication of any partition. This deed has also been taken note of by the learned trial court in paragraph 44 of the judgment while holding that there has been no previous partition but at the same time the court was of the view that the suit was bad for non- joinder of necessary parties. The 1st appellate court upheld the finding that there has been no previous partition but reversed the finding on the point of non-joinder of parties by holding that all the necessary parties were on record and held that the plaintiffs were entitled to the relief as claimed in the suit, including 1/3rd share in the properties of Kheman Mahato who is said to have died issueless and a widower way back in the year 1931 . 39. This court is of the considered view that the claim of the contesting defendants (appellants) that there has been a previous partition does not find support from the recitals of exhibit 1 series. This court is of the considered view that merely because of the fact that there has been dealing with property by one or the other party, jointly or otherwise, the same by itself is not a proof of the factum of partition by metes and bound. 40. This court is of the considered view that even if the Exhibit-1 series are taken into consideration, it cannot be said that there was previous partition by metes and bounds. In such circumstances, this court is of the view that the factum of previous partition by metes and bounds was not proved and merely because some of the parties, jointly or otherwise, dealt with the property the prayer for claim of title and partition of 1/3rd of the property of Kheman Mahto cannot be said to be barred by principles of estoppel, waiver and acquiescence and cannot be said to be vitiated under the provision of the Evidence Act. 41. The 2nd substantial question of is answered against the appellants (contesting defendant) and in favour of the contesting respondents (plaintiffs). ( 2025:JHHC:28579 ) 24 42. Both the substantial question of law is accordingly answered in favour of the contesting respondents and against the appellants. Accordingly, this second appeal is hereby dismissed. 43. At the time of correction of this judgement, the records of the case revealed that there is no order of substitution or deletion of respondent no. 5, still the name has been deleted by the learned counsel for the appellants. Since there is no order of deletion of name of Jagdish Mahto from the cause title, his name would remain. Defect no. 5 was relating to 6 persons who were appellant no. 6 to 11 before the learned 1st Appellate Court but were not made party in the memo of appeal. They have been inserted as appellant nos. 5(i) to 5(vi) in this appeal. Party position of this judgment has been prepared accordingly. 44. Pending I.A., if any, is closed. 45. Let this order be communicated to the court concerned through FAX/e-mail. (Anubha Rawat Choudhary, J.) Dated:4/09/2025 Uploaded on 09/12/2025 Binit