2025:JHHC:23409 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S. A. No. 120 of 1998(R) Baghai Devi, Wife of Etwar Swansi, Resident of Village:- Patsai, P.S. Tamar, District Ranchi. … … Plaintiff/Respondent/Appellant Versus 1. Shri Sristidhar Mahto 2. Ram Krishna Mahto 3. Samar Singh Mahto 4. Fulchand Mahto Sons of Late Ramu Mahto 5. Karam Singh Mahto, S/O: Late Madhu Mahto (Deleted and substituted vide order dated 24.11.2022) 5.(a) Chunnidih Devi, widow of Late Karam Singh Mahto, Resident of Village Pasaidh, P.O. & P.S. Tamar, District: Ranchi.(Appeal abated vide order dated 23.02.2023) 6. Most. Rasumani, Wife of Late Kali Mahto (Expunged vide order dated 03.05.2000) 7. Mansa Mahto 8. Mohan Mahto 9. Ratan Mahto Sons of Late Kali Mahto 10. Most. Teleshwari Devi, wife of Kundan Mahto. (Deleted vide order dated 24.11.2022) 11. Dhanpati Mahto 12. Govind Mahto 13. Jaideo Mahto Sons of Late Kundan Mahto. 14. Jagjiwan Mahto, Son of Pandu Mahto (Deleted and substituted vide order dated 24.11.2022) 14. (a) Kishunpur Devi (Appeal abated vide order dated 23.02.2023) 14. (b) Tilak Mahto, S/O Late Jagjiwan Mahto. 15. Lakhidas Mahto, Son of Motilal Mahto (Deleted and substituted vide order dated 24.11.2022) 15. (a) Charan Mahto 15. (b) Ram Charn Mahto 14 (a), 14(b), 15(a) and 15(b) all residents of Village Pasaidih, P.O. & P.S. Tamar, District: Ranchi. 16. Durpadi Devi, Wife of Ramjiwan Mahto, (Expunged vide order dated 03.05.2000) 17. Trilok Nath Mahto 18. Rameshwar Mahto Sons of Late Ramjiwan Mahto 19. Sukhram Mahto 20. Gangadhar Mahto Sons of Machiya Mahto 2025:JHHC:23409 2 21. Ghansu Mahto, S/O: Chain Mahto (Deleted and substituted vide order dated 16.11.2011) (i) Widow of Late Ghansu Mahto (Name not known) (ii) Ghanai Mahto (iii) Bhuneshwar Mahto (iv) Malin Mahto 21(ii), 21(iii) and 21(iv) are Sons of late Late Ghansu Mahto All resident of Village Pasaidih, P.S. Tamar, District: Ranchi. … … Defendants/Appellants/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. B.V. Kumar, Advocate For the Respondents : Mr. Kundan Kumar Ambastha, Advocate : Mr. Md. Abdul Wahab, Advocate : Mr. Anuraj Chandra, Advocate --- 31/12.08.2025 1. Heard the learned counsel appearing on behalf of the parties. 2. This appeal has been filed against the judgment dated 30th July, 1998 (decree signed on 07.08.1998) in Title Appeal No. 32 of 1995 passed by the Additional Judicial Commissioner-VIII, Ranchi whereby the judgment dated 10th March, 1995 (decree signed on 22nd March, 1995) passed by the learned Munsiff, Khunti in Title Suit No. 06 of 1991 has been set aside. The Title Suit No. 06 of 1991 was decreed by the learned trial court. 3. The plaintiff is the appellant before this Court. 4. This appeal was admitted vide order dated 21.01.2000 on the following substantial question of law:- i. Whether the first appellate court has committed error of law in holding that memorandum of partition between the co-sharers or a family arrangement between the co- parceners/co-sharers is compulsorily registerable under Section 17 of the Indian Registration Act? 5. Records of the case reveal that the suit was filed for declaration of right, title, interest and possession with respect to the suit lands whose details has been mentioned in the schedule of the plaint. A 2025:JHHC:23409 3 prayer was also made that if the plaintiff is not found in possession of the property then she may be put in possession. 6. It was the case of the plaintiff that the suit land devolved upon Budhram Swansi and thereafter, devolved upon her only son Etwar Swansi, who was minor at the relevant point of time of death of his father. 7. Etwar Swansi came in possession of the suit land and cultivated the same and in course of time he married twice. The two wives were the plaintiff and one Budhni Devi. Both wives of Etwar Swansi have sons and daughter. It was further case of the plaintiff that Etwar Swansi during his lifetime divided his land between his two wives. With respect to land in Khata No. 35 in two portions and allotted 4 Katha 1 Paila to each his wives. The partition took place before Mukhia and Sarpanch of Lungtu Gram Panchayat and in presence of some other villagers on 15.04.1967. A document was prepared in evidence of the said partition. The document was recorded in Lungtu Gram Panchayat and the certified copy of the said documents were issued to each wife of Etwar Swansi and the respective portion of the land were given to them. It was the case of the plaintiff that two wives were put in possession since 15.04.1967. The case of the plaintiff was that she being one of the wives was allotted land in partition and resumed the possession and got her name mutated in the sharista of State and has been paying rent since then and therefore, she was the exclusive owner of the suit property. 8. The defendants claimed to have purchased the land from one Sukhlal Swansi @ Etwar Swansi. The plaintiff denied that Etwar Swansi had any alias name as Sukhlal Swansi. The plaintiff further alleged that the sale deed, if any, filed by the defendant, is false and fabricated document in the name of Sukhlal Swansi and it was never signed by Etwar Swansi. Although, the plaintiff has admitted that the proceeding under Section 145 Cr.P.C. launched by her, was decided against her and the defendants were found in possession over the land by the court of Executive Magistrate. 2025:JHHC:23409 4 9. On the other hand, the case of the defendants was that the plaintiff had not made her husband Etwar Swansi @ Sukhlal Swansi party in the suit who was a necessary party according to the pleadings of the plaintiff. 10. The defendants was claiming property through registered deed of sale and therefore, they stated that the vendor was a necessary party who was the husband of the plaintiff. They had purchased the property by paying valuable consideration and sale deed was registered on 19.06.1973. According to the defendants, on 17.04.1973 the father of the defendant No.1 to 4 purchased 33 decimals of land from Sukhlal Swansi. Defendant No.5 Karam Singh purchased 25 decimals of land through registered sale deed from Etwar Swansi. One Karamchand had also purchased land through registered sale deed from Etwar Swansi. Other description of sale deeds were also given by the defendants. The further case of the defendants was that the deed of partition was not a genuine and was created for the purpose of grabbing the land which was already sold by the husband of the plaintiff. 11. The learned trial court framed following issues for consideration. i. Has the plaintiff got valid cause of action for the suit? ii. Is the suit as framed maintainable? iii. Is the suit barred by law of limitation? iv. Whether Etwar Swansi divided the suit land by partition among the plaintiff and co wife Budhni Devi and minor children of Khata No. 34 and 35 and the deed of partition was executed as memory on 15.04.1967 and the said partition deed was acted upon and by virtue of the said partition deed the plaintiff has acquired right, title and interest? v. Is the plaintiff entitled to any relief? vi. To what other relief or relief, is the plaintiff entitled? 2025:JHHC:23409 5 12. The learned trial court decided the issue No. (iv) by holding that the plaintiff had right, title and interest over the suit land and that while deciding issue No. (i) the plaintiff had valid cause of action as the court has decided that issue No.(ii) and (iii) were not barred by law of limitation and the court decided the issue No. (v) and (vi) that the plaintiff was entitled for relief as prayed for. 13. The learned trial court held that the plaintiff got the property by virtue of Exhibit-2 and came in possession of the property after mutation and the partition between the two wives came into effect on 15.04.1967 and therefore, the plaintiff had the exclusive right, title and interest over the suit property. 14. The learned court ultimately recorded in paragraph 21 that the Etwar Swansi did not have any other name as Sukhlal Swansi and that Etwar Swansi had two wives Baghai Devi and Budhani Devi. The plaintiff proved that there was partition so as to avoid future conflict between two wives and that Etwar Swansi divided the properties in Khata No. 34 and 35 amongst the two wives and by virtue of the partition deed dated 15.04.1967 and since then the plaintiff has been in possession of the property and has been paying rent to the State. 15. The learned trial court held that Etwar Swansi or Sukhlal Swansi had no right to sell the suit land as the property was already partitioned. 16. The learned trial court held that the sale deed relied upon by the defendants was doubtful and the plaintiff has been able prove that the sale deed was executed by getting another person in place of her husband namely Etwar Swansi. The learned trial court declared the sale deed as null and void and ultimately decreed the suit. 17. So far as learned 1st appellate court is concerned, the following points for determination were formulated by the learned 1st appellate court which is as under:- I. Whether the plaintiff has been able to prove his pleadings by the evidence adduced by him? 2025:JHHC:23409 6 II. Whether deed of partition is acceptable as evidence in the eye of law? III. Whether court below has taken this point for consideration that the case of plaintiff stand on its own leg? IV. That the suit is bad for non joinder of necessary party? 18. The learned 1st appellate court while deciding the issue No. (IV) held that since the partition itself was not proved in accordance with law and the court had held that the deed of partition required registration, the appeal was fit to be allowed. The learned court also recorded that Etwar Swanshi was a necessary party to the suit and the suit is bad for non-joinder of necessary party. 19. The learned 1st appellate court while considering the point No. (III) held that the plaintiff has to stand on his own leg and also recorded that the trial court had disbelieved the execution of sale deed by Etwar Swansi but did not consider that the Exhibit-2 i.e. the deed of partition was not admissible in evidence and held that the learned trial court completely erred in giving finding that the plaintiff had right, title and interest over the suit land. The learned 1st appellate court also put into consideration that the Exhibit-2 only should be taken into consideration for the purpose of declaring right, title and interest over the property and non-proving the defendant’s case could not declare title of the plaintiff. 20. So far as the point No. (II) is concerned, the learned 1st appellate court recorded that the Exhibit-2 reveal that the partition was affected by the said document and therefore, it required registration and was not admissible in evidence. Moreover, the deed of partition did not bear the signature of the plaintiff and Budhni Devi. 21. While deciding the point No. (I), the learned 1st appellate court held that the plaintiff failed to prove his possession over the land. The PW-1 could not say the plot number of the land cultivated by the plaintiff. P.W.-4 stated in paragraph 8 of the cross examination that plaintiff is residing with Etwar Swansi and he is cultivating the land 2025:JHHC:23409 7 with Etwar Swansi. It was also stated that 6 katha 1 paila is in their possession. Whereas the plaintiff herself said that she was in possession of 3 katha 10 paila. 22. The learned 1st appellate court upon considering the materials held that that plaintiff has not been able to prove possession over the suit land and the plaintiff failed to adduce evidence on the point of title and Exhibit-2 was not admissible in evidence. 23. The learned 1st appellate court has quoted the recital of Exhibit- 2 and also recorded that it only contained the description of land having the signature of Etwar Swansi and also the signature of Mukhia and Sarpancha and some other villagers. The findings recorded by learned 1st appellate court is recorded as under:- “11. On careful scrutiny of evidence adduced on behalf of both parties discussed above, I find that the plaintiff has proved Ext.2, said to be the deed of partition I have gone through the said deed. The recital of which is as follows:- “ETWAR SWANSI SAKIN PALAS DIH JINKE DO STRIYAN HAIN? USNE APNE JAMEEN KO DONO STIRIYON KO BANT DETA HAI. BANTWARA KARTE SAMAYA GRAM PANDHYAT KE MUKHIA SARPANCH LUXMI NARAYAN SINGH ANWA GRAM KE BAHUT SE BYAKTI SAMMILEET THE.” Thereafter description of land is given. It is not stated in this deed from which side the land is given to each co-wives of plaintiff and Budhni. A mere description of land is given. Thereafter it appears that it bears the signature of Etwar Swansi and also bears signature of Mukhia and Sarpanch and some other villagers but this does not bear the signature of plaintiff and Budhni Devi. Further, the original deed of partition was not exhibited by the plaintiff. When it is admitted by Sarpanch (P.W.3) that original is in the Gram Panchyat and he granted certified copy himself by seeing the original. Therefore, this certified copy could not be looked into as evidence only on the ground that original has not been proved before court. Therefore, before appreciating the evidence adduced by the defendant, it will be proper first to give findings:- Whether the plaintiff by his evidence has been able to prove his case. On the point of possession also, I find that the plaintiff has failed to prove his possession over the land by witness as I have discussed above that P.W.1 could not say plot number of land cultivated by plaintiff. P.W.4 has stated in para 8 of cross examination that plaintiff is residing with Etwar Swansi. 2025:JHHC:23409 8 He is cultivating the land with her husband Etwar Swansi. He further stated that 6 katha 1 paila is in their possession whereas the plaintiff herself said that she is in possession of 3 katha 10 paila. On the basis of discussions made above, I find that the plaintiff has not been able to prove possession over the suit land. On the basis of findings given above, I find that the plaintiff has failed to adduce evidence on the point of title. I further find that Exhibit-2 is not admissible in evidence. I further find that plaintiff has not been able to prove his possession over the suit land. I further find that in a proceeding u/s 145 Cr.P.C. the Executing Magistrate has declared the possession of defendant over the suit land and the order of possession so declared by the court find corroboration from the evidence of D.Ws which I have discussed above. Therefore, plaintiff has not been able to prove his case as pleaded in the plaint.” 24. The learned 1st appellate court ultimately set aside the judgment and decree passed by the learned trial court and dismissed the suit. 25. The learned counsel for the appellant while referring to the substantial question of law as framed has submitted that the perusal of Exhibit-2 would reveal that the same was apparently a memorandum of partition which had taken place earlier between the two wives of Etwar Swansi which was divided between the two by none less than Etwar Swansi and therefore, it did not require registration under Section 17 of the Indian Registration Act. He has submitted that the learned trial court has recorded that the sale deed was executed by Etwar Swansi @ Sukhlal Swansi and Etwar Swansi did not have the alias name as Sukhlal Swansi and on this ground it was held that the deed executed in favour of the defendants by Etwar Swansi @ Sukhlal Swansi was doubtful and consequently, the same was rightly set aside. The learned counsel has submitted that the sale deed was executed through impersonation by making a third party stand in place of Etwar Swansi and therefore, it was null and void and once the sale deed is null and void there is no need to specifically challenge the same. He has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Prem Singh v. Birbal reported in (2006) 5 SCC 353 Paragraph 16. 2025:JHHC:23409 9 26. The learned counsel has relied upon the judgment passed by Hon’ble Supreme Court in case of Munna Lal (dead) By Lrs and Others v. Suraj Bhan and Others reported in (1975) 1 SCC 556 Paragraph 6 and 7 with respect to admissibility of Exhibit-2 and has submitted that considering the nature of Exhibit-2, the same did not require registration and accordingly, the substantial question of law is fit to be answered in favour of the appellant and against the respondents and the impugned judgment passed by the learned 1st appellate court is fit to be set aside. 27. The learned counsel for the respondents on the other hand has opposed the prayer and has submitted that the husband of the plaintiff was neither made party nor examined nor the sale deed executed by him was challenged before the learned court. Learned counsel submits that the plaintiff alleged impersonation but there is no explanation as to why Etwar Swansi was not made party and why the sale deed itself was not challenged. He has submitted that the point as to whether a deed is executed by impersonating is itself a question of fact and law and therefore, it was required to be specifically challenged in accordance with law. He has submitted that the judgment passed by the Hon’ble Supreme Court in the case of Prem Singh v. Birbal (supra) does not help the appellant in any manner. Learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in AIR 2010 SC 211 in the case of Abdul Rahim and Others vs. Sk. Abdul Zabar and Others and has submitted that any registered document either void or voidable is required to be challenged as there is presumption of correctness in connection with the execution of a registered deed of sale. 28. However, so far as the substantial question of law is concerned, the learned counsel has submitted that the Exhibit-2 clearly reveals that the same by itself is partitioning the property half and half with respect to Khata No. 34 and 35, but even in this deed the exact area has not mentioned. The learned counsel has submitted that the learned trial court has also referred to this document by saying that by virtue 2025:JHHC:23409 10 of this particular deed the partition was affected. The learned 1st appellate court has disbelieved this document and recorded the same as inadmissible in law. He has relied upon the judgment passed by the Hon’ble Supreme Court in the case of K.G. Shivalingappa v. G.S. Eswarappa, reported in (2004) 12 SCC 189 paragraph 13 to submit that though partition amongst Hindus may be effected orally but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it would have the effect to declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under Section 17(1)(b) of the Registration Act. He submits that the plaintiff has relied upon Exhibit-2 to show that it was the document of partition and it was never the case of the plaintiff also that it was the memorandum of partition and otherwise also on the face of Exhibit-2 it is not a memorandum of partition and therefore, it was compulsorily registerable and in view of the judgment reported in 2004 12 SCC 189 (supra) the Exhibit-2 is hit by Section 17 of the Indian Registration Act. The substantial question of law according to him is fit to be answered in favour of the respondents and the appeal is fit to be dismissed. Findings of this court. 29. After hearing the learned counsel for the parties and considering the facts and circumstances of this case and upon perusal of Exhibit-2, this Court finds that the Exhibit-2 itself is seeking to divide the property between two wives of Etwar Swansi. It has been recorded in Exhibit-2 that the partition was done in panchayat in present of Mukhia and other persons and this Exhibit-2 contains the signatures of Mukhia, Sarpanch and other villagers and also the signature of Etwar Swansi. On the face of Exhibit-2, this Court is of the considered view that the same is not a memorandum of partition as it does not refer to any previous partition nor does it reveal that it is a recital of any previous partition which is reduced into writing for future reference. Rather Exhibit-2 reveals that by this document the 2025:JHHC:23409 11 property was divided between the two wives of Etwar Swansi. It has been specifically recorded that the document itself reveal that the partition was done by Etwar Swansi son of Budhuram Swansi and this document has also the signature of Etwar Swansi. 30. In view of the aforesaid facts and circumstances, this Court finds that the Exhibit-2 is itself partitioning the property and the same having been not registered is not admissible in evidence. The entire case of the plaintiff was based on the partition of the property by virtue of Exhibit-2 and her case was that she was the exclusive owner of the suit property by virtue of partition (Exhibit-2) and suit was filed for declaration of right, title and interest and confirmation of possession / recovery of possession. This Court finds that the entire basis of claiming exclusive right, title, interest and possession with respect to the suit property having been based on Exhibit-2, the same having not been registered, the learned 1st appellate court has rightly considered this aspect of the matter and has set aside the judgment and decree passed by the learned trial court. It is held that the learned 1st appellate court has not committed any error of law in holding that Exhibit-2 is compulsorily registerable under Section 17 of the Indian Registration Act. The substantial question of law is answered against the appellant and in favour of the respondents. 31. Consequently, this Second appeal is hereby dismissed. 32. Pending I.A., if any, is closed. 33. Let a copy of this order be communicated to the concerned courts through “Fax/e-mail”. (Anubha Rawat Choudhary, J.) Rakesh/-