2025:JHHC:10150 IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 337 of 2018 Kishan Maharaj @ Krishna Prasad Giri, Aged about 56 Years, Son of Late Murlidhar Giri, Resident of G.T. Road, Kandra, P.O.: Bhitiya, P.S.: Govindpur, District: Dhanbad. … … Defendant/Appellant/Appellant Versus 1. Rakhohari Goswami, Son of Late Ram Bhushan Goswami, Resident of Khilkanali, P.O.: Bhitiya, P.S.: Govindpur, District: Dhanbad. … … Plaintiff/Respondent/Respondent 2. Rabindra Goswami, Son of Late Ramphal Goswami 3. Sikandar Goswami, Son of Late Ramphal Goswami, 4. Santusti Devi W/o Late Ramphal Goswami (abated v/o dated 05.09.2024) Sl. No. 2 to 4 residents of Village: Khilkanali, P.O.: Bhitiya, P.S.: Govindpur, District: Dhanbad. … … Defendants/Respondents/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Ramchander Sahu, Advocate For the Resp. No. 1 : Dr. Bhanu Giri, Advocate For Resp. Nos. 2 and 3 : Mr. Om Prakash Singh, Advocate --- 11/20.03.2025 Heard the learned counsel for the parties. 2. This appeal has been filed against the judgment and decree dated 31st March 2018 (decree sealed and signed on 12.04.2018) passed by learned District Judge-I, Dhanbad in Civil Appeal No. 55 of 2014 whereby the Civil Appeal No. 55 of 2014 has been dismissed and the learned appellate Court has affirmed the judgment dated 24th June 2014 (decree sealed and signed on 30th June 2014) passed by learned Civil Judge (Junior Division) No. I, Dhanbad in Title Suit No. 58 of 2009 (A). The learned Trial Court had decreed the title suit under Order VIII Rule 10 of Civil Procedure Code (in short ‘CPC’) as the defendants were debarred from filing written statement. 3. The defendant no. 1 is the sole appellant before this Court. 4. This appeal was admitted vide order dated 07th January 2025 on the following substantial question of law: "Whether the learned Courts were justified in granting relief to the plaintiff beyond 5 decimals of land which was 2025:JHHC:10150 2 involved in sale-deed no. 7226 dated 17.08.2006 in connection with which the relief was prayed for in the suit?" 5. Learned counsel for the appellant (defendant no.1) has referred to the finding of the learned first appellate Court and has submitted that the learned first appellate Court, while deciding the case, has held that only 3 decimals of land was left with the vendor of the defendant no. 1 who were defendant nos. 2 to 4, but the sale-deed relating to 5 decimals of land has been set-aside. He has submitted that the appellate Court ought to have held that the sale-deed was valid only to the extent of 3 decimals of land. The learned counsel has submitted that while setting aside the sale-deed no. 7226 dated 17.08.2006, the learned 1st appellate Court has ultimately granted relief to the plaintiff with respect to the claim of the entire 5 decimals of land although the vendor of the defendant no.1 had the right to sell to the extent of 3 decimals of land. He has submitted that in such circumstances the relief granted to the plaintiff in connection with the sale-deed was ultimately more than his entitlement as the sale deed was valid to the extent of 3 decimals. 6. The learned counsel has also submitted that both the learned Courts have wrongly set-aside the sale-deed executed in favour of the defendant no. 1 by the defendant nos. 2. The learned counsel has submitted that in aforesaid circumstances the sale-deed could have been set-aside only to the extent it related to 2 decimals of land as the learned 1st appellate Court has recorded a clear finding that only 3 decimals of land remained with the vendor of the defendant no. 1 which could be sold. 7. Learned counsel appearing on behalf of the respondents, on the other hand, has opposed the prayer and has submitted that the sale- deed has been rightly set-aside and the sale-deed could not have been confined to only a portion of the suit property. He has further submitted that there is no concept of part setting aside of the sale- deed. 2025:JHHC:10150 3 Findings of this court. 8. The case of the plaintiff was that the land bearing Plot No. 660 under Khata No. 54 as described in schedule-A of the plaint was recorded jointly in the name of Lal Chand Puri and Jaideo Puri in cadastral survey settlement of record of rights held in the year 1925; Jaideo Puri died issueless and therefore the entire suit property devolved upon the co-sharer namely Lal Chand Puri. Lal Chand Puri died leaving behind his two sons Ram Bhushan Goswami and Ram Phal Goswami and Ram Bhushan Goswami died leaving behind his only son who was the plaintiff before the court. Ram Phal Goswami died leaving behind his two sons and a widow who were defendant nos. 2, 3 and 4 in the suit. It was stated in the plaint that the property was mutually partitioned, suit land fell into the share and possession of plaintiff and was recorded in the name of plaintiff under renumbered Plot No. 1301 and area was shown only to the extent of 9 decimal as out of 14 decimal, 4 decimal was already sold by Ramphal Goswami to the mother of defendant no. 1. It was further case of the plaintiff that defendant no. 1 had confirmed the plaintiff as absolute owner of the suit land by executing a deed of exchange dated 08.08.1991 in which the plaintiff gave 3 decimal of suit land to defendant no. 1 and the defendant no.1 gave 5 ½ decimal of another plot no. 659 to the plaintiff. It was further case of the plaintiff that the plaintiff repeatedly requested the defendant no. 1 to give effect to the deed of exchange but the defendant no. 1 kept silent and in order to deprive the plaintiff from his title over the suit property, defendant no. 1 got registered a sale deed No. 7226 dated 17.08.2006 from the defendant no. 2. It was the case of the plaintiff that defendant no. 2 had no right, title, interest or locus to transfer the suit land to the defendant no. 1. The plaintiff sought a declaration of plaintiff’s right over schedule-A land and cancellation of registered sale deed no. 7226 2025:JHHC:10150 4 dated 17.08.2006 and also vacant possession of the suit land by evicting the defendant. The schedule-A of the suit land is as follows: - Schedule above referred to:- Schedule-A (Suit land) Within Distt. Dhanbad, P.S. Govindpur, Mouza Kandra, Mouza No. 113, Khata No. 54, Plot No. 660, Gora-1 Sold area 05 decimal bounded and butted as follows:- North : Defendant no. 1, South : G.T. Road, East : Sonaram Mishra, West : Defendant no. 3 9. At the stage of trial, the defendants appeared but did not file written statement and they were debarred from filing written statement. The plaintiff examined four witnesses and the suit was ultimately decided under Order VIII Rule 10 of CPC. All the witnesses were cross examined by the defendants. The plaintiff also exhibited the following documents: - Ext. 1 to 1/c are the four rent receipts. Ext. 2 is sale deed no. 7226 Ext. 3 is Raiyati Parcha Ext. 4 is R.S. Khatian 10. The learned Trial Court only took up one point as to whether the plaintiff was entitled for any relief as claimed or not. 11. The learned Trial Court decreed the suit by holding that the defendant no.2 did not have the right and title to sell 5 decimals of land to the defendant no. 1 and consequently set-aside the sale deed dated 17.08.2006 as null and void and held that the defendant no.1 did not acquire any right, title and interest over the suit property by virtue of the aforesaid sale deed dated 17.08.2006 and declared the title of the plaintiff over the suit property. 12. The learned 1st Appellate Court framed three points at the first appellate stage including the point no. 3 as to whether the plaintiff was entitled to the relief as claimed by him. The learned 1st Appellate Court recorded that it was admitted that there was oral partition between Ramphal Goswami and Rakho Hari Goswami, both sons of Ram Bhushan Goswami in connection with the property having total area of 14 decimal; 4 decimal of land was already sold by Ramphal 2025:JHHC:10150 5 Goswami to the mother of defendant no. 1. The court also held that on account of partition Ram Phal Goswami and Rakho Hari Goswami each got 7 decimal of land out of total of 14 decimal and after sale of 4 decimal by Ramphal Goswami, what remained in his share was only 3 decimal of land and therefore the sale of 5 decimal of land by the son of Ramphal Goswami, that is, the defendant no. 2 to defendant no.1 was beyond the title of defendant no. 2. The learned 1st appellate court held that the learned trial court has rightly held that the sale deed executed by defendant no.2 in favour of defendant no.1 vide sale deed no. 7226 dated 17.8.2006 is void and rightly declared right, title and interest of the suit land in favour of the plaintiff. Para 22 and 23 of the appellate court’s judgment is quoted as under :- “22. From the statement of witnesses of plaintiff and the cross-examination, it has never been disputed that the suit land was only 14 decimals which was recorded initially in the name of Lal Chandra Puri, who died leaving behind Ram Bhushan Goswami and Ramphal Goswami. Plaintiff is the sole son and legal heir of Ram Bhusan Goswami and defendant no.2 to 4 are the legal heirs of the Ram Phal Goswami. It has also been not denied by the defendant that 4 decimals land was transferred by Ramphal Goswami to mother of defendant no.1/appellant. So, the legal heirs of Ram Bhusan Goswami and Ramphal Goswami has half share each admittedly and in simple mathematics out of 14 decimals land, plaintiff shared his 7 decimals and defendant no.2 to 4 will have the 7 decimals. Out of which 4 decimals of land has already been sold by Ramphal Goswami, father of defendant no.2 and 3 to mother of the defendant no.1, appellant. So, they remains have only 3 decimals of land and thus, they have no share of 5 decimals land but the defendant no.2, Ravinder Goswami S/o Late Ramphal Goswami has executed sale deed of 5 decimal land without any right, title. So, it cannot be sustainable in the eye of law and the suit land is remaining the share of plaintiff/respondent no.1. 23) So, I found that learned trial court has rightly held by the impugned judgement that sale deed executed by defendant no.2/respondent no.2 in favour of defendant no.1/appellant vide sale deed no.226 dated 17.8.06 is void and rightly declared right title and interest of the suit land in favour of respondent no.1/plaintiff.” 13. The grievance of the defendant no.1 -appellant before this court is that the title of the plaintiff could not have been declared to the 2025:JHHC:10150 6 extent of 5 decimal of land covering the entire suit property when it was held that the defendant no. 2 did not have title on 5 decimal of land as he had already sold 4 decimal out of 7 decimal of his share and still the defendant no. 2 had title over 3 decimal of land , if not over 5 decimal of land. 14. A finding has also been recorded that the plaintiff admitted in his cross-examination that there was oral partition between his father and uncle. The learned 1st appellate Court has recorded that it was also an admitted fact that 4 decimals of land was transferred by Ramphal Goswami to mother of the defendant no. 1. It has been recorded that both the brothers (Ramphal Goswami and Ram Bhusan Goswami) had 7 decimals each to their share and accordingly, the plaintiff was entitled to 7 decimal and defendant nos. 2 to 4 were entitled to 7 decimals, out of which 4 decimals were already sold by Ramphal Goswami to the mother of the defendant no. 1 and what remained was only 3 decimals at the hand of the defendant no. 2 to 4. 15. The findings which have been recorded in paragraphs 18 and 22 of the appellate court’s judgment are not under challenge except to the extent that in paragraph 22 in the 2nd line the suit land has been mentioned as 14 decimals, but perusal of the plaint and upon hearing the parties, it is not in dispute that the suit land was only to the extent of 5 decimals. The learned 1st appellate Court has declared right, title and interest of the entire suit land in favour of the plaintiff, meaning thereby the relief has been given to the plaintiff even with respect to the extent of 3 decimals of land over which the vendor of the defendant no. 1 had the right to transfer as per the findings recorded in paragraph 22 of the appellate Court’s judgment. 16. In such circumstances, though the sale-deed cannot be restored as the vendor of the defendant no.1 (appellant herein) did not have the right to sell the entire 5 decimals of land, but the learned 1st appellate Court was certainly not justified in declaring the right, title and interest of entire 5 decimals of entire suit land in favour of the plaintiff and it ought to have been confined only to the extent of 2 decimals of land. In paragraph 22 the learned 1st appellate Court has 2025:JHHC:10150 7 recorded that what remained was only 3 decimals of land at the hand of the vendor of the defendant no. 1 for sale, but the vendor of defendant no. 1 had sold 5 decimals of land instead of 3 decimals of land vide sale deed no. 7226 dated 17.08.2006. 17. In view of the findings of the court that the defendant no. 2 had right and title only over 3 decimal and not 5 decimals of land, no relief could have been granted to the plaintiff for entire 5 decimal by declaration of his title and his right could have been restricted only to 2 decimals after deducting the right of the defendant no. 2 over 3 decimals of land. Accordingly, the declaration of right, title and interest in favour of the plaintiff to the extent of entire 5 decimals of suit land covered by the sale deed is set-aside and the right, title and interest of the plaintiff would remain confined only to 2 decimals of the suit land and the title of the vendor of the defendant no.1 would be confined to 3 decimals of suit land. The substantial question of law is accordingly answered by holding that the right of the vendor of the defendant no. 1 was only to the extent of 3 decimals of suit land and at the same time upholding the finding that the vendor of the defendant no. 1 did not have right, title and interest with respect to remaining 2 decimals of suit land whose title was with the plaintiff. 18. The substantial question of law is accordingly answered. 19. This second appeal is disposed of in the aforesaid terms. 20. Pending interlocutory application, if any, is closed. (Anubha Rawat Choudhary, J.) Pankaj/Binit