2025: JHHC: 11860 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 476 of 2018 1. Dhanraj Mandal, aged about 60 years, S/o Late Tuli Mandal 2. Bhuneshwar Mandal, aged about 64 years, S/o Late Tuli Mandal 3. Sahdew Mandal, aged about 48 years, S/o Late Tribhuwan Mandal 4. Dular Chand Mandal, aged about 45 years, S/o Late Tribhuwan Mandal All 1 to 4 resident of village Bishunpur, P.O. Chapuwadih, P.S. Bengabad, District Giridih … … Appellants/Appellants/Defendants Versus 1. Dayal Mandal, S/o Late Parmeshwar Mandal, R/o Village Bishunpur, P.O. Chapuwadih, P.S. Bengabad, District Giridih … … Respondent/Respondent/Plaintiff 2. Nanki Devi W/o Late Mahabir Mandal, R/O village Rampur, P. O. Karamatand, P. S. Karamatand, District Jamtara 3. Hurwa Devi W/o Gujjar Mandal, R/O village Chamliti, P.O. Budhudih, P. S. Gandey ( Ahilyapu), District Giridih, 4. Hemlal Mandal S/o Bandhu Mandal 5. Shobha Mandal S/o Bandhu Mandal, Both 3and4 R/O village + P. O.Kusto, P. S. Dumri, District Giridih, 6. Indiwa Devi W/o Gango Mandal, R/O village & P. O.Bhandaro, P. S. Dumri, District Giridih, 7. Tekani Devi W/o Ishwar Mandal, R/O village +P. O.Bhandaro, P. S. Jamua, District Giridih, 8. Sitwa Devi W/o Kailash Mandal, R/O village Jitkundi, P. O. Khudisar, P. S. Dumari, District Giridih 9. Dhaneshwari Devi W/o Kunjo Mandal, R/O village Jorasimar, P.O. Budhudih, P.S.Gandey ( Ahilyapur), District Giridih, 10. Munwa Devi W/o Rameshwar Mandal, R/O village Dalludih, P.O. Karamatand, P.S. Karamatand, District Dumka. … … Respondents/Respondents/Defendants --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- 08/22nd April 2025 2025: JHHC: 11860 2 1. Heard Mr. Arwind Kumar, the learned counsel appearing on behalf of the appellants. 2. This appeal has been filed against the judgment dated 19.09.2018 passed by the learned District Judge-II, Giridih in Civil Appeal No. 80 of 2012 whereby the appeal has been dismissed and the judgment and decree dated 04.09.2012 and 17.09.2012 respectively passed by the learned Civil Judge (Sr. Division)-IV, Giridih in Partition Suit No. 22 of 2002 has been upheld. 3. Case of the Plaintiff (a) The case of the plaintiff is that the lands of khata no.22 of village Bishunpur was recorded in the name of Tekchand Mandal as Bakast under Khewat no. 2/5 in last survey and settlement operation. It was further case that Tekchand Mandal died leaving behind his three sons, namely, Hanuman Mandal, Puran Mandal and Churaman Mandal who came in joint possession of Bakast land after death of their father besides other lands. (b) Subsequently, Churaman Mandal transferred his 1/3rd share of khata no.22 to Umed Mandal and his son Jugal Mandal by virtue of a registered sale deed dated 12.04.1921 for valuable consideration and put the purchasers in possession over the same. (c) It was further case of the plaintiff that Babu Hiraman Ram, Babu Dularchand Ram, Babu Gouri Ram, Babu Musan Ram and Babu Budhan Ram jointly purchased the 1/3rd share of Puran Mandal in a court auction held in connection with Execution Case no. 694 of 1920 and sale certificate was issued in their favour on 15.04.1921 and since then they came in possession over the same. (d) It was further case of the plaintiff that Hanuman Mandal also transferred his 1/3rd share of Bakast under Khata no.22 to Babu Hiraman Ram for a valuable consideration by executing 2025: JHHC: 11860 3 a registered sale deed dated 06.04.1921 and put him in possession over the same. Subsequently, Babu Hiraman Ram and others transferred their 2/3rd right and title of Bakast Khata no.22 to Umed Mandal and his son Jugal Mandal by virtue of a registered sale deed dated 17.10.1921 for valuable consideration and as such, Umed Mandal and his son Jugal Mandal became owner of entire share of Bakast Khata no.22 measuring an area 29.34 acres and continued to be in exclusive possession. (e) Further, Umed Mandal died leaving behind his son Jugal Mandal and as such, Jugal Mandal became the exclusive owner of the entire suit land, but after few years the all three sons of late Tekchand Mandal requested Jugal Mandal to transfer some lands of Bakast Khata no. 22 to them which was accepted by Jugal Mandal and he transferred 1/3rd share of khata no.22 to Hanuman Mandal, Puran Mandal and Churaman Mandal by virtue of a registered sale deed dated 11.02.1925 for valuable consideration and the purchasers came in possession over the undivided 1/3rd share of khata no. 22 and they started to cultivate the land which was in their separate possession of their respective 1/3rd and 2/3rd share as co-tenant for the sake of convenience without any partition by meets and bounds. As such, there is unity of title and possession in between Hanuman Mandal and others in one hand and Jugal Mandal in the other hand. (f) It was further case that Hanuman Mandal died leaving behind his only one son namely Bodhi Mandal who also died leaving behind his son Tribhuwan Mandal. Puran Mandal also died leaving behind his son Tuli Mandal who also died leaving behind his three sons, namely, Bhuneshwar Mandal, Baldeo Mandal and Dhanraj Mandal. Churaman Mandal also died leaving behind his only one son Latlu Mandal who also died 2025: JHHC: 11860 4 leaving behind his only one son namely Triloki Mandal who inherited after death of their father and grandfather and came in possession over the undivided 1/3rd share of the suit land. (g) After sometimes, Jugal Mandal also died leaving his son Parmeshwar Mandal who also died leaving behind his son Dayal Mandal who is the plaintiff of the suit. It was further case of the plaintiff that the grandfather of the defendants had purchased unspecified and undivided 1/3rd share of the suit land from Jugal Mandal-the grandfather of the plaintiff and remained in separate possession for the sake of convenience as the lands were never partitioned between them and taking advantage of the fact that the land has not been partitioned, the defendants started to construct a house over plot no. 290 of khata no. 22 which had been coming in possession of the plaintiff since the time of his father; the said land is situated by the side of Giridih Bengabad Road which is a valuable piece of land; when the plaintiff objected , the defendants stated that they had right to make construction as the land has not been partitioned by meets and bounds. After that the plaintiff demanded partition of the suit land from the defendants on 12.03.2002 but the defendants refused the same and hence this suit has been filed. 4. Case of the defendants (i) On the other hand, the defendants appeared and filed their written statement stating that the suit was not maintainable as there was no valid cause of action for the suit. It was the case of the defendants that the suit was also bad for non-joinder of necessary parties as Bodhi Mandal has died leaving behind his five daughters; Pukhwa Devi also died leaving behind her two sons and four daughters and Latlu Mandal had also four daughters who were not made party in the suit. The defendants 2025: JHHC: 11860 5 had also denied the averments made by the plaintiff in the plaint. It was further denied that Churaman Mandal sold his 1/3rd share of khata no.22 to Umed Mandal and Jugal Mandal by registered sale deed dated 12.04.1921. It was also denied that Hanuman Mandal had sold his 1/3rd share to Hiraman Ram and others by virtue of registered sale deed dated 6.4.1921. It was also denied that the share of Puran Mandal was purchased by Hiraman Ram and others in court auction and if any sale deed is produced, the same is forged and fabricated document. It was also denied that Jugal Mandal sold 1/3rd share of khata no.22 to Hanuman Mandal, Puran Mandal and Churaman Mandal and he remained in possession over 2/3rd share in the suit land. As such, the defendants have claimed over the land of entire khata no.22 as they were in possession over the same as their ancestors were in possession over the same for more than 12 years. Hence, the suit was liable to be dismissed. Arguments of the appellants 5. The learned counsel for the appellants has submitted that the suit was filed for partition and the defendants relied upon two registered sale deeds dated 12.04.1921 and 06.04.1921. He submits that those sale deeds were forged and fabricated but this aspect of the matter has not been property considered by the learned courts. He has further submits that the land involved in this case was gairmazarua malik land. Findings of this Court 6. After hearing the learned counsel for the appellants, this Court finds that both the learned courts have given concurrent findings with respect to aforesaid two sale deeds dated 12.04.1921 and 06.04.1921 and also sale deed dated 11.02.1925 by observing that the said documents cannot be disbelieved particularly when the same were not under challenge. 7. On the basis of pleadings of both the parties, the learned trial court has framed the following issues for consideration: - 2025: JHHC: 11860 6 1. Is there any cause of action for this suit? 2. Is the suit maintainable? 3. Is the suit barred by law of limitation, adverse possession, estoppel, waiver, ouster and exclusion? 4. Has the plaintiff locus-standi to institute the present suit? 5. Is the suit bad for non-joinder of necessary parties? 6. Is the sale-deed alleged to have been executed by Churaman Mandal in favor of Umed Manda and Jugal Mandal dated 12.04.1921 legal, valid and genuine? 7. Is the sale-deed dated 06/04/1921 alleged to be executed by Hanuman Mandal in favour of Hiraman Ram legal, valid and genuine? 8. Have the plaintiff any share in the suit land? 9. To what relief or reliefs if any the plaintiff is entitled to? 10. Whether the suit property is in jointness of title and possession between the parties and prior partition between the parties? 8. So far as most important issue i.e. issues Nos. 6 and 7 are concerned, the learned trial court took a specific view that the defendants challenged both the sale deeds as forged and fabricated, but there was nothing on records to show that the defendants have proceeded against these sale deeds before the court of law for their cancellation or for declaration as null and void and the defendants could not rebut these sale deeds by any oral or documentary evidence. The findings of the learned trial court in connection with issue Nos. 6 and 7 have been recorded in paragraph 9 as under: - “9. From careful perusal of the materials available on the case record and evidences adduced by the parties, oral as well as documentary, it appears that the plaintiff has stated in his plaint that Churaman Mandal transferred his 1/3rd share in Bakast land of khata no. 22 to Umed Mandal and Jugal Mandal by virtue of registered sale deed dated 12/04/1921 and Hanuman Mandal also transferred his entire 1/3rd share to Hiraman on 06/04/1921. The defendants have denied these sale deeds but the plaintiff’s witnesses PW 1 Hemlal Mandal, PW 2 Jamuna Mandal, PW 3 Lakho Mandal and PW 5 Dayal Mandal, the plaintiff himself consistently supported this fact and PW Md. 2025: JHHC: 11860 7 Hussain has proved the sale deed as Exbt-3 & Exbt-3/c which are the questioned sale deeds. It is clear that Churaman Mandal has executed the sale deed dated 12/04/1921 in favour of Umed Mandal and Jugal Mandal and Hanuman Mandal has executed a sale deed in favour of of Hiramn Mandal on 06/04/1921. The defendant’s witnesses have stated that both the sale deeds are forged and fabricated but nothing is on record to show that the defendants have proceeded against these sale deeds before the court of law for their cancellation or for declaration, as null and void to these sale deeds. Neither the defendants have rebutted these sale deeds by any oral or documentary evidence. In the cross-examination of the defendant's witnesses on the point of these sale deeds, there are too many contradictions. On the basis of said sale deeds, the plaintiff is claiming another 1/3rd share apart from his 1/3rd share total 2/3rd share in the suit property. The defendant has filed the Khatiyan of Khata No. 22 which contains the name of many persons including Umed, Jugal, Hiraman, Dayal Mandal etc. but it does not reflect that both the said sale deeds are not executed by the executant of these sale deeds in favour of the vendees of these sale deeds. It is also pertinent to mention here that to show the possession of the plaintiff over the land mentioned in both the sale deeds, the plaintiff has filed the Government rent receipts which are marked as Exbt-1 to Exbt-1/C. Exbt-2 also reveals that Umed and Jugal purchased the land of khata no. 22 and the Jamabandi is also in the name of Umed and Jugal. So, in my opinion, both the sale deeds are valid and genuine and confer the right, title, interest followed by the possession to the vendees of these sale deeds which passed the right, title, interest of the plaintiff over the suit land by virtue of succession and the plaintiff has got every right, title, interest over the land purchased vide both the sale deeds which are sale deeds dated 06/04/1921 and 12/04/1921. Thus, I find and hold that these issues are hereby decided in favour of the plaintiff against the defendants.” 9. So far as issue Nos. 8 and 10 are concerned, the learned trial court in paragraph 10 held that there was nothing on record to show that there was any prior partition between the parties and held that there was unity 2025: JHHC: 11860 8 of possession over the suit land between the parties and the plaintiffs were held to have separate title over the land mentioned in sale deeds dated 06.04.1921 and 12.04.1921 and there was unity of title for the other lands mentioned in the schedule to the suit and the plaintiff was held to be entitled to 2/3rd share of the suit land and the defendants were entitled for 1/3rd share. 10. The following points of determination were framed by the learned 1st appellate court: - Point no. I.:- Whether there is unity of title and unity of possession in between the parties and the plaintiff has 2/3rd share in the suit land? Point no. II :- Whether the sale deeds executed by Churaman Mandal and Hanuman Mandal dated 12.04.1921 and 06.04.1921 respectively and sale deed dated 11.02.1925 executed by Jugal are the legal, valid and genuine documents ? Point no. III :- Whether the judgment and decree passed by the learned court below is sustainable in the eye of law which warrants any interference by this court ? 11. The learned 1st appellate court has also given concurrent findings after considering the materials on record. Paragraph 11 to 14 of the learned 1st appellate court are quoted as under: - “11. The defendants have only filed a C.C of Khatiyan of khata no. 22 marked as Ext. A which shows that the land of khata no.22 under khewat no. 2/5 has been recorded in the name of Tekchand Mandal as a Bakast land in the last survey and settlement operation but the witnesses who are the defendants have only denied the averments made by the plaintiff in his plaint as well as the evidences of the witnesses and have stated that sale deeds executed by Churaman Mandal and Hanuman Mandal are a forged and fabricated documents and auction sale made by the court is only paper transaction and they had not acquired any right, title and possession over the suit land and as such, the plaintiff has no any right to demand partition 2025: JHHC: 11860 9 of the suit land as the defendants are exclusive possession over the same since the time of their ancestors but they have not produced any witness in support of their contents as alleged in their written statement. 12. 12. Section 44 of Transfer of Property Act clearly speaks that, "Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquired as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other, or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities effecting at the date of transfer, the share or interest so transferred." Here in this case also, it is crystal clear that Jugal Mandal transferred 1/3rd share of khata no.22 of village Bishunpur to Hanuman Mandal, Puran Mandal and Churaman Mandal by virtue of a registered sale deed dated 11.02.1925 for valuable consideration and the purchasers came in possession over the undivided 1/3rd share in khata no.22 (Ext.3/A). The sale deed executed by Jugal Mandal on 11.02.1925 clearly shows that the description of the land of 1/3rd share of khata no 22 has not been given in the sale deed and as such, it is crystal clear that the purchasers are the tenants in common in the land of khata no. 22 and the witnesses have clearly stated that the purchasers are in their possession to the extent of their share as per their convenience but there was no any partition by meets and bounds. It has also been held in a judgment reported in 2008(4) JLJR SC 157 that, "Even a coparcenary interest can be transferred subject to the condition that purchaser without consent of his other coparcener cannot get possession and he acquires right to sue for partition." The plaintiff has clearly stated that he has sold 1/3rd share to Hanuman Mandal and others and as such, remaining 2/3rd share of khata no.22 continued to be in his possession and as such he has brought the suit for preparation of preliminary decree of partition to the extent of his 2/3rd share in the suit land for which he is also entitled as there is no specific boundary has been given in respect to the land of 1/3rd share of khata no. 22 which remained in joint possession of the parties. As such, it is crystal clear that there is unity of title and unity of possession of the plaintiff in the suit land and 2025: JHHC: 11860 10 he is entitled to get partition of the suit land to the extent of his 2/3rd share and interest in the suit land. As such, the sale deeds executed by Churaman Mandal dated 12.04.1921 and sale deed executed by Haruman Mandal on 06.04.1921 are the legal, valid and genuine documents and accordingly, sale deed executed by Jugal Mandal dated 11.02.1925 is also a valid document which have never been challenged and the same has already been acted upon. In this way, the learned court below has rightly passed the judgment and decree in favour of the plaintiff on the basis of the evidences available on the record. 13. Point no. III: On consideration of the entire evidences both oral and documentary which has been elaborately discussed by the learned court below, I come to the conclusion that there is no perversity in the findings as recorded by the learned court below and as such, the learned court below has rightly passed the judgment and decree in accordance with law. Thus, I do not find any illegality and infirmity in the findings of the learned lower court which warrants any interference by this court. As such, the impugned judgment and decree passed by the learned court below is hereby affirmed.” 12. This Court is of the view that though the defendants had stated that the sale deeds produced and relied upon by the plaintiff were forged and fabricated, but the defendants had never challenged the same at any point of time and this aspect of the matter has been taken care of by both the learned courts while deciding the case. 13. This Court finds no illegality or perversity as such has been committed by both the learned courts and therefore no substantial question of law is involved in this appeal, which is hereby dismissed. 14. Pending interlocutory application, if any, is dismissed as not pressed. (Anubha Rawat Choudhary, J.) Mukul