2026:JHHC:982 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S. A. No. 631 of 2004 1. Baru Mahto, S/o: Chutar Mahto 2. Khudni Devi, W/o: Late Chatu Mahto. 3. Sudama Devi, W/o: Raghu Mahto and daughter of Chhattu Mahto. 4. Kedar Mahto, S/o: Late Chhatu Mahto. 5. Munshi Mahto, S/o: Late Chhattu Mahto 6. Parmeshwar Mahto 7. Kameshwar Mahto 6 & 7 both minor sons of Late Chhattu Mahto represented through their mother Khudni Devi. 8. Dewanti Kumari, minor daughter of Late Chhattu Mahto, represented through her mother and natural guardian Khudni Devi. 9. Lekhia Devi, W/o: late Joban Mahto 10. Tarwa Devi, W/o: Late Tahal Mahto and daughter of Joban Mahto 11. Baleshwar Mahto, S/o: Joban Mahto 12. Geeta Devi, W/o: Sitaram Mahto and daughter of Joban Mahto 13. Bishun Mahto, minor son of late Joban Mahto, represented through his mother and natural guardian Lekhia@ Lekhiya Devi. 14. Ganesh Mahto, S/o: Chutar Mahto All resident of village Donai Khurd, P.S. Barhi, District- Hazaribagh. … … Plaintiffs/Respondents/Appellants Versus 1. Jamni Devi, W/o Mutar Mahto and daughter of Deva Mahto, Village-Bihari, P.O. Surajpura, P.S. Barhi, District-Hazaribagh. 2. Khiriya Devi, W/o: Jainath Mahto and daughter of Dewa Mahto, resident of Village Dheba Dauri, P.O. Amjhar, P.S. Itkhori, District-Chatra. 3. Gender Mahto, S/o: late Rupan Mahto, resident of village- Banderbela, P.O. Padma, P.S. Barhi, District-Hazaribagh. 4. Kaushlya Devi, W/o: Lakho Mahto and daughter of Rupan Mahto, resident of Village Karar, P.O. Pinderkon, P.S. Barhi, District- Hazaribagh. 5. Ambiya Devi, W/o: Inder Mahto, resident of village-Kutipisi, P.O. Kutipisi, P.S. Barhi, District-Hazaribagh. 6. Thakur Mahto, S/o: late Beni Mahto, resident of village Banderbela, P.O. Padma, P.S. Barhi, District- Hazaribagh. 7. Jitni Devi, W/o: Bijali Mahto and daughter of Beni Mahto, resident of village Donai Kala, P.O. Kutipisi, P.S. Barhi, District- Hazaribagh. 8. Parni Devi, W/o: Pokhan Mahto and daughter of Beni Mahto, resident of village Banderbela, P.O. Padma, P.S. Barhi, District- Hazaribagh. 9. Katki Devi, W/o: Jagdish Mahto and daughter of late Beni Mahto, resident of Soki, P.O. Manhari, P.S. Itkhori, District-Chatra. At present resident of Bandarbela, P.O. Padma, P.S. Barhi, District-Hazaribagh. 2026:JHHC:982 2 ... ... Defendants/Appellants/Respondents 10. Sona Mahto, S/o: Nanhu Mahto 11. Rito Mahto, S/o: Nanhu Mahto 12. Kaushilya Devi, W/o: late Dina Mahto 13. Suresh Mahto, S/o late Dina Mahto 14. Naresh Mahto, S/o: late Dina Mahto 15. Nageshwar Mahto, S/o: late Dina Mahto 16. Mahabir Mahto, S/o: late Dina Mahto All 10 to 16 are resident of village Donai-Khurd, P.O. Saraiyadih, P.S. Barhi, District-Hazaribagh. 17. Shanti Devi, W/o: Kamal Prasad Mehta and daughter of late Dina Mahto, resident of village-Pokhariya, P.O. Ratanpur, P.S. Ichak, District- Hazaribagh. 18. Malti Devi, W/o: Kaila Mahto and daughter of late Dina Mahto, resident of village Karar, P.O. Pindar Khurd, P.S. Barhi, District- Hazaribagh. 19. Dingur Mahto, S/o: Nanhu Mahto 20. Haro Mahto, S/o: Bigan Mahto. Both 19 and 20 are resident of village Donai Khurd, P.O. Padma, P.S. Barhi, District-Hazaribagh. … … Defendants 2nd set/Respondents/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Sudhir Kumar Sharma, Advocate : Mr. Mahadeo Thakur, Advocate For the Respondents : Mr. Sanjay Kumar Pandey, Advocate : Mr. Baleshwar Yadav, Advocate For the Amicus : Mr. Afaque Rashidi, Advocate --- 25/15.01.2026 1. Heard the learned counsel appearing on behalf of the parties. 2. This second appeal has been filed against the judgment dated 18.10.2004 (decree signed on 23.11.2004) passed by learned District Judge, Hazaribag in Title Appeal No. 20 of 2004 setting aside the judgment dated 30.04.2004 passed by learned Sub-Judge, IV, Hazaribagh in Partition Suit No. 82 of 1997. 3. The learned trial court had decreed the partition suit with respect to item No.I relating to Khata No. 33 and item No. II relating to Khata No.22 both of the schedule ‘A’ property and held that the plaintiffs would be entitled to 1/3rd share. Item No. I and item no. II of schedule A property belong to different villages. The trial court’s judgment was reversed by the learned 1st appellate court with respect 2026:JHHC:982 3 to both the item No. I & II Consequently, the plaintiffs are the appellants before this Court. 4. This appeal was admitted for final hearing vide order dated 26.06.2009 on the following substantial question of law:- “Whether the learned lower appellate court has correctly met with the findings of the trial court while reversing the same?” 5. The learned counsel for the appellants while referring to the trial court’s judgment has submitted that amongst the issues which were framed by the learned trial court, issue No. (v), (vii) and (viii) are most relevant issues. He has submitted that issue No. (vii) and (viii) are primarily related to Khata No. 33 and so far as issue No. (v) is concerned, it relates both to Khata No.33 and Khata No.22. 6. The learned counsel for the appellants gave the factual background of the case of the plaintiffs as under: - a. Jehal Mahto had four sons namely Bhikho Sokiar, Bhikhari Mahto, Hulash Mahto and Nanhu Mahto. b. Bhikho Sokiar had a son namely Bundia Sokiar and his wife was Most. Somari who had a daughter namely Hemia Devi who pre-deceased her mother. Ultimately, Most. Somari died issueless. c. The property with respect to Khata No.33 was recorded in the name of Bundia Sokiar son of Bhikho Sokiar and consequently, the property with respect to Khata No.33 devolved upon the three branches of Jehal Mahto who were the agnates of Bhikho Sokiar. 7. The learned counsel has further submitted that the contesting defendants have disputed the genealogy and according to them Bhikho Sokiar was not the son of Jehal Mahto and they were claiming the property by virtue of registered gift deed/sale deed executed by Most. Somari. 8. The learned counsel has further submitted that so far as the property in Khata No. 22 is concerned, it did not have the name of Bhikho Sokiar, but it was recorded in the name of Bhikhari Mahto, 2026:JHHC:982 4 Hulash Mahto and Nanhu Mahto/their descendants all sons of Jehal Mahto. 9. Learned counsel for the appellants has submitted that since the plaintiffs claimed that entire property i.e. Khata No.33 and Khata No.22 belonged to the joint family of Jehal Mahto therefore, they claimed partition with respect to the entire property. However, both the courts have dealt with the property of Khata No. 33 and Khata No.22 in different paragraphs. By referring to the judgment of the learned trial court, the learned counsel for the appellants has submitted that with respect to Khata No.33, issue No.(viii) was the most important issue and if issue No. (viii) is decided in favour of the plaintiffs, then naturally the plaintiffs would be entitled to a share in Khata No.33. 10. Learned counsel for the appellants has referred to the findings recorded by the learned trial court with respect to issue No. (viii) and has submitted that the learned trial court has considered the fact that the defendant Nos. 3 and 6, who were the contesting defendants had not specifically mentioned the name of the father of Bhikho Sokiar and the denial in the written statement was evasive. Apart from this aspect of the matter, the court had also considered the oral and documentary evidence of the defendants including the evidence of D.W.-7 to come to a finding that Bhikho Sokiar belonged to the family of Jehal Mahto and ultimately directed for partition of the property in Khata No. 33. 11. Learned counsel has further submitted that while deciding issue No. (vii), the learned trial court recorded that there was no averment in the written statement to the effect as to how and in what manner the property was separately acquired and possessed by Bundia Sokiar which was in turn was sold/gifted by his wife Most. Somari upon death of Bundia Sokiar. The court ultimately held that the property in Khata No. 33 was joint family coparcenary property of Jehal Mahto and others and directed for partition of the same. 2026:JHHC:982 5 12. So far as Khata No.22 the learned trial court observed in paragraph 15 that it was not in dispute from the pleadings of the parties and during the course of argument it was submitted before the learned trial court that this property is subject matter of partition amongst the parties. While considering issue No.(v) and (vi) together the learned trial court in paragraph 21 of the judgment ultimately directed for partition of 1/3rd share with respect to item No. I and II of schedule ‘A’ property covering Khata No. 22 and 33 is mentioned. 13. Learned counsel for the appellants has then referred to the judgment passed by the learned 1st appellate court and has submitted that learned 1st appellate court has also considered all the issues as framed by the learned trial court and has framed the following points for determination. i. Is the suit, as framed, maintainable in law? ii. Whether the plaintiffs have got cause of action and right to sue? iii. Whether the suit with regard to Khata No.33 of village Banderbela is hit by Limitation, adverse possession? iv. Whether there is Unity of title and possession for partition of the suit property? v. Whether the lands of Bundia Sokiar in Khata No. 33 of village Banderbela, is the ancestral property of the plaintiffs and defendants? vi. Whether Most. Somri was entitled to execute Deed of Gift (Exhibit-B) and Sale Deed (Exhibit-C)? vii. Whether the plaintiffs are entitled to partition of 1/3rd share in the suit property? viii. To what other relief or reliefs the plaintiffs are entitled? 14. The learned 1st appellate court has reversed the findings of the learned trial court with respect to relationship of Jehal Mahto and Bhikho Sokiar and consequently, has held that the property recorded in the name of Bundia Sokiar S/o: Bhikho Sokiar could not be subject matter of partition. 15. Learned counsel for the appellants has submitted that the learned 1st appellate court has failed to consider the fact that the defendants in the written statement had not disclosed the father’s 2026:JHHC:982 6 name of Bhikho Sokiar and the learned 1st appellate court has also not properly considered Exhibit-B and Exhibit-C and further the evidence of D.W.1 and D.W.7 have also not been properly considered. He has submitted that the evidence of D.W.1 and D.W.7 was duly relied upon by the learned trial court while recording the findings. 16. Learned counsel for the appellants has submitted that learned 1st appellate court has not met with the reasons assigned by the learned trial court while reversing the findings in connection with Khata No.33 and also with respect to relationship of Jehal Mahto and Bhikhu Sokiar. 17. With respect to Khata No. 22, the learned counsel for the appellants has submitted that irrespective of the findings in connection with Khata No. 33, there was no dispute that Khata No. 22 could be subject matter of partition. He has submitted that the property in Khata No. 22 was admittedly recorded in the name of family members of Jehal Mahto, so far as they related to Bhikhari Mahto, Hulash Mahto, Nanhu Mahto/their descendants. He has submitted that it was never the case of any of the defendants before the court that there was a previous partition with respect to Khata No.22. 18. Learned counsel for the appellants has further submitted that in absence of any such plea having been taken in the written statement, it was not open to the learned 1st appellate court to come to a finding of previous partition based on separate kabjawari/possession of one or the other family member of the joint family consisting of Jehal Mahto and his descendants. 19. Learned counsel has also relied upon the judgment passed by Patna High Court reported in 1998 SCC OnLine Pat 517 [Deoki Mallah vs. Surji Mallahain and others] and has referred paragraph 14 to submit that separate in mess and separate cultivation amongst the co-shares do not mean that there was partition by meets and bounds or separation of one of the coparceners from the ancestral property and noting of Kabjawari in the revenue records do not prove separation of partition, which only gives an analogy that there was separate 2026:JHHC:982 7 cultivation or possession by the person in whose favour Kabjawari has been recorded. 20. Learned counsel for the appellants has submitted on the one hand there was no plea of previous partition and on the other hand, primarily, the finding of previous partition has been recorded by the learned 1st appellate court on the basis of Kabjawari. He has submitted that such an approach of the learned 1st appellate court while dealing with Khata No. 22 is perverse and call for interference. 21. Learned counsel has submitted that even assuming, though not admitting, that the plaintiffs did have any case in connection with Khata No. 33, but there was no occasion for the learned 1st appellate court to interfere with the findings in connection with Khata No. 22. 22. The learned counsel for the appellants has submitted that had the legal position being correctly taken into consideration by the learned trial court in the light of the pleadings of the parties, the learned 1st appellate court could not have set aside the finding of the learned trial court with respect to partition of Khata No.22. 23. Learned counsel for the contesting defendant i.e. defendant Nos. 3 and 6 has vehemently opposed the prayer of the appellants while addressing this Court with respect to Khata No.33 and the relationship of Bhikho Sokiar and Jehal Mahto. The learned counsel for the concerned defendants has submitted that learned trial court has wrongly appreciated the written statement and it was for the plaintiffs to prove the genealogy who claimed that Bhikho Sokiar was their family member. 24. He has submitted that learned trial court has not even considered the oral evidences of the plaintiffs while coming to the finding. He has also submitted that the learned 1st appellate court has considered all the evidences on record, both oral and documentary evidences of both the parties, while setting aside the findings of the learned trial court with regard to relationship of Jehal Mahto and Bhikho Sokiar. 2026:JHHC:982 8 25. He has submitted that so far as the finding in connection with Khata No.33 and also the findings that Bhikho Sokiar and his son Bundia Sokiar did not belong to the family of Jehal Mahto does not call for any interference. 26. He has further submitted that otherwise also the learned 1st appellate court has rightly set aside the finding in connection with Khata No. 33 as the property of Khata No. 33 was exclusively recorded in the name of Bundia Sokiar S/o Bhikho Sokiar. He has also submitted that the properties of Bundia Sokiar was ultimately transferred by his wife through gift/sale deed in favour of the contesting defendants by registered deed and those deeds were also not under challenge at any point of time. 27. With respect to the evidence of D.W.7, the learned counsel submits that the evidence has to be read as a whole and the evidence of D.W.7 reveals that he has categorically stated that Bhikho Sokiar and accordingly his son Bundia Sokiar did not belong to the family of Jehal Mahato. In cross examination in paragraph 3, this witness has also stated that Bhikhari Mahto was not the son of Jehal Mahto although, it was nobody’s case that Bhikhari Mahto was not the son of Jehal Mahto. This witness has stated in paragraph 3 itself in cross examination that Jehal Mahto had only three sons and it cannot be said that this witness had supported the case of the plaintiffs in any manner and this witness had never seen any of the sons of Jehal Mahto (the so called common ancestor). The learned counsel for the contesting defendants has referred to the evidence of P.W.3 as recorded by the learned 1st appellate court at internal page No. 10 of the appellate court’s judgment in 11th line that in paragraph 13 he admitted that Bhikhari Mahto, Hulash Mahto and Nanhu Mahto had no share in the land of Khata No. 33 and Bhikho Sokiar was not of the family of Jehal Mahto. 28. Learned counsel has submitted that the learned 1st appellate court has done the needful and considered all the materials on record to come to definite finding that Bhikho Sokiar and consequently, his 2026:JHHC:982 9 son Bundia Sokiar (The recorded tenant of Khata No. 33) did not belong to the family of Jehal Mahto and consequently, Khata No. 33 could not be subject matter of partition. 29. With respect to Khata No.22, the learned counsel for the respondents has not been able to point out any statement made in the written statement which could indicate that any stand was taken by contesting defendants in particular or the other defendants about any previous partition. However, he has submitted that the learned 1st appellate court has taken into consideration of the different Kabjawari and has come to a finding of previous partition. He has submitted that the learned 1st appellate court has rightly set-aside the decree of partition in connection with Khata No. 22 also. 30. The learned amicus has submitted that so far as Khata No.33 is concerned, he has nothing to add over and above whatever has been submitted by the learned counsel for the private respondents. So far as the judgment in connection with Khata No. 22 is concerned, learned Amicus has submitted that in absence of any plea regarding previous partition, there was no occasion for the learned 1st appellate court to record a findings to that effect. He has also not been able to distinguish the judgment passed by the Hon’ble Patna High Court which has been relied upon by the learned counsel for the appellants. Findings of this Court 31. Partition Suit No. 82 of 1997 was filed claiming that the plaintiffs and the defendants are members of coparcenary of Hindu Joint Family and descendants of common ancestor namely Jehal Mahto who died before the last cadastral survey operation leaving behind three sons Bhikhari Mahto, Hulash Mahto and Nanhu Mahto and a grandson namely Bundia Sokiar son of Bhikho Sokiar, the pre- deceased son of Jehal Mahto. As per the plaintiffs, Jehal Mahto had four sons including Bhikho Sokiar and as per the contesting defendants Jehal Mahto had three sons only and Bhikho Sokiar was not his son. The khata No. 33 was standing in the name of Bhikho Sokiar and his son was Bundia Sokiar and the property in khata No.33 2026:JHHC:982 10 was already transferred through registered gift deed/sale deed by widow of Bundia Sokiar which were never challenged by the plaintiffs. Khata no. 22 was standing in the name of three sons of Jehal Mahto, namely, Bhikhari Mahto, Hulash Mahto and Nanhu Mahto. 32. The genealogy has been annexed to the plaint. It was the case of the plaintiffs that Jehal Mahto was the owner of the property in Khata No. 33 consisting of 38 plots area 6.50 acres which came to be recorded in the name of his grandson Bundia Sokiar son of Bhikho Sokiar and was described in item-I of schedule A of the plaint. 33. The learned trial court has clearly recorded with respect to khata No. 22 as follows: I would also like to advert that land of khata No. 22 which is the item No. II of Schedule ‘A’ property situated in village Donia is not in dispute from the pleading of the party and even during the course of argument the learned counsel for the defendant has submitted that this property is subject matter of partition amongst the parties. With respect to khata No.22 it was never the case of the defendants that there has been previous partition, but the learned 1st appellate court has travelled beyond the pleadings of the parties while recorded that there was previous partition with respect to khata no. 22 primarily be referring to kabjawari and consequently set aside the order of partition passed by the learned trial court with respect to Khata No. 22. The learned 1st appellate court while considering the claim of partition with respect to khata No.22 has not dealt with the reasons cited by the learned trial court, but has travelled beyond the pleadings of the respective parties. Accordingly, the finding of the learned trial court directing partition of khata no. 22 is sustained and the finding of the learned 1st appellate court with regard to khata no.22 refusing partition is set-aside. 34. It was further case of the plaintiffs that Bundia Sokiar son of Bhikho Sokiar, the recorded tenant of Khata No.33 died in the state of jointness with his uncles and cousin brothers sometimes in the year 1935 leaving behind his wife Most. Somari who also died sometime in 2026:JHHC:982 11 the year 1954 without any male issue and consequently, upon her death, the entire property of Khata no.33 devolved upon the remaining three sons of Jehal Mahto namely Bhikhari Mahto, Hulash Mahto and Nanhu Mahto. The specific case of the plaintiffs was that the property in Khata No. 33, even though recorded in the name of Bundia Sokiar, was joint family property and consequently, the same was also subject matter of partition suit. 35. The defendant No. 3 and 6 were the contesting defendants who clearly asserted that Bundia Sokiar was not the descendants of Jehal Mahto and that defendant Nos. 3 and 6 had acquired a portion of the property of Khata No.33 measuring 3.90 acres in gift from Most. Somari, W/o: Bundia Sokiar, which could not be the subject matter of partition. 36. It was also asserted that Nanhu Mahto son of Jehal Mahto and Chutar Mahto son of Bhikhari Mahto and grandson of Jehal Mahto also purchased land in Khata No. 33 from Most. Somari and acquired right, title and possession with respect to such property. It was categorically stated that Bhikho Sokiar or his son Bundia Sokiar or Most. Somari were never coparcener of undivided Hindu joint family of descendants of Jehal Mahto and that as a matter of fact, Bhikho Sokiar was not the son of Jehal Mahto. It was asserted that Most. Somari died sometimes in the year 1961 and not in the year 1954. 37. The specific case of the contesting defendants was that after death of Bundia Sokiar his widow Most. Somari was maintained by Rupan Mahto and Beni Mahto, both sons of Hulash Mahto son of Jehal Mahto whom Bundia Sokiar had adopted as brother by customary Sahiya relationship and that Rupan Mahto and Beni Mahto had helped Most. Somari economically in performing the shradh ceremony of her late husband Bundia Sokiar and performed the shradh of Most. Somari on her death. 38. The gift deed was made by registered deed dated 19.04.1944 for 3.90 acres of land of Khata No. 33 in favour of Rupan Mahto and Beni Mahto and the sale deed was made on 18.04.1944 by Most. Somari 2026:JHHC:982 12 with respect to property in Khata No. 33 for consideration with respect to land measuring 2.68 acres in favour of Beni Sokiyar son of Hulash Mahto and Nanhu Sokiyar son of Jehal Mahto. 39. The learned trial court framed the following issues for consideration: - I. Is the suit maintainable in its present form? II. Have the plaintiffs any cause of action for the suit? III. Is the suit barred by law of limitation and adverse possession? IV. Is the suit barred by law of estoppel, waiver and res- judicata? V. Is the plaintiff entitled for the decree for partition of the suit land? VI. To what relief or reliefs the plaintiffs are entitled to? VII. Whether land of Khata No. 33 of village Banderbela is the coparenary property of the plaintiff and defendant? VIII. Whether Bundia Sokiar recorded tenant of Khata No.33 was the descendant of Jehal Mahto who was the common ancestor of plaintiffs and defendants? IX. Whether Mostt. Somari wife of Bundia Sokiar died in the year 1954 or she died in the year 1961? 40. So far as findings of issue No. (viii) is concerned, this Court finds that the learned trial court has referred to the plaint and the written statement and has recorded that the contesting defendant Nos. 3 and 6 have not suggested as to who was the father of Bhikho Sokiar and observed that the written statement of defendant Nos. 3 and 6 was evasive and there was an active concealment with respect to the name of the father of Bhikho Sokiar and the plaintiffs had categorically stated that Jehal Mahto was the father of Bhikho Sokiar. The learned trial court observed that evasive denial and active concealment is fatal in civil proceeding and same would be taken as admission. The learned trial court observed that the witnesses of the contesting defendants have also very cleverly made silence and also made denial with respect to the fact as to who was the father of Bhikho Sokiar 2026:JHHC:982 13 though, the witnesses were of advance age ranging from 65 to 75 years and of the same village where Khata No. 33 was situated. Thereafter, the learned trial court has discussed the evidences of the defendant witnesses and observed that D.W.1 Gendar Mahto, one of the contesting defendants, himself stated in paragraph 11 that he was the person who performed the shradh ceremony of Somari wife of Bundia Sokiar and at that time he was aged around 15 to 20 years and in order to meet the expenses of Shradh ceremony, his father Rupan Mahto and Dewa, S/o Chutar Mahto had sold 8 decimal of land of Khata No. 33. The learned trial court observed that the sale was referable to the land of Somari which is item No.I of schedule A. The learned trial court then observed that it meant that there was relationship of coparcenary between D.W.1 and the recorded raiyat of Khata No.33, the husband of Most. Somari i.e. Bundia Sokiar. 41. Thereafter, the learned trial court considered the evidence of D.W.7 by stating that there is starling evidence of this witness who is the senior citizen of 70 years of age belonging to the same village and that in paragraph 6 this witness has very categorically admitted that Chutar Mahto, Dewa Mahto, Beni Mahto, Baiju Mahto, Soma Mahto, Bhikhu Mahto, Dina Mahto and Dingur Mahto are all cousins inter-se relation wise and admitted that there has been no partition till date. 42. The learned trial court held that the relationship of coparcenary between Bhikho Sokiar and other branches of the plaintiffs stood established on the basis of this evidence and there was no reason to disbelieve the statement of this witness. 43. The learned trial court then observed that defendant Nos. 10 to 13 had also filed written statement who have admitted that Bundia Sokiar was the coparcener. 44. The learned trial court ultimately came to a finding in paragraph 13 that issue No. (viii) is to be decided in favour of the plaintiffs on account of evasive nature of denial by the defendants and positive and cogent evidence suggested and given by the plaintiffs and held that 2026:JHHC:982 14 Bundia Sokiar recorded tenant of Khata No.33 was the descendants of Jehal Mahto. 45. This Court finds that it was the specific case of the plaintiffs that Bhikho Sokiar belonged to their family and there was a common ancestor namely, Jehal Mahto and it was the specific case of the contesting defendants that Bhikho Sokiar was alien to the family of the plaintiffs. However, the learned trial court was of the view that inspite of such stand taken by the contesting defendants, it was for the defendants to prove as to who was the father of Bhikho Sokiar. Further the learned trial court has not considered any of the oral evidence of the plaintiffs while recording findings. 46. The learned trial court ultimately recorded that Khata No. 33 was joint property and after death of Bundia Sokiar his share totally devolved upon the agnates of Bundia Sokiar who are none else but the branch of the plaintiffs and the defendants. The court also observed that one being a coparcener can certainly acquire his independent property, but the burden lies upon him to establish that the properties was separately acquired by giving cogent evidence, otherwise the entire property will be taken to be joint coparcenary and will form a part of coparcenary property. There was no evidence given by the defendants as to how and under what circumstances and by what means the land of Khata No. 33 was purchased or acquired separately by Bundia Sokiar, the recorded tenant of Khata No. 33 who was found to be a coparcener with other plaintiffs and defendants. 47. The learned trial court ultimately ordered and decreed the suit for partition in favour of the plaintiffs to the extent of their 1/3rd share, interalia, with respect to Khata No. 33 in village Banderbela. 48. So far as the learned 1st appellate court is concerned, the learned 1st appellate court has set aside the judgment and decree with respect to both the schedule properties i.e. Khata No. 33 and Khata No. 22. The learned 1st appellate court recorded that there was no evidence on record to hold that Bundia Sokiar or his father Bhikho Sokiar belonged to the family of Jehal Mahto and the plaintiffs have failed to 2026:JHHC:982 15 prove that they were members of joint coparcenary property of Jehal Mahto. 49. The learned 1st appellate court further recorded that the plaintiffs were estopped from their own conduct to challenge the deed of gift or sale deed executed by Most. Somari and the plaintiffs had not challenged or prayed for any relief to set aside the gift of deed and sale deed i.e. Exhibit-B 18.04.1944 and sale deed Exhibit-C dated 19.09.1944 respectively. 50. This Court finds that total area of khata No. 33 was 6.50 acres and by virtue of two registered deeds of sale/gift Most. Somari widow of Bundia Sokiar, the recorded tenant, had already transferred 3.90 acres and 2.68 acres, total being 6.58 acres and no land was remaining in khata No.33 for being partitioned. The learned 1st appellate court has rightly taken into consideration this aspect of the matter that the registered deeds were not even under challenge and rejected the claim for partition with respect to khata No.33 and also held that Bundia Sokiar was not the coparcener of the plaintiffs and the concerned defendants. The learned 1st appellate court also considered that the sale deed was executed to the sons of Jehal Mahto. 51. In view of the fact that the properties of khata No. 33 were already transferred through registered deeds way back in the year 1944 which were not even under challenge, the learned 1st appellate court rightly took the view that there can be no partition with respect to Khata No.33. This would be the position in law irrespective of the fact as to whether the recorded tenant of khata No. 33, Bundia Sokiar was the descendant of Jehal Mahto. This aspect of the matter was not considered by the learned trial court while directing partition of khata No. 33 also. Consequently, the finding of the learned 1st appellate court refusing to partition khata No. 33 does not call for interference. 52. Accordingly, the part of the judgment passed by learned 1st appellate court with regard to khata No.22 refusing partition is set- aside and consequently, the part of the judgment passed by the learned trial court directing partition of khata no. 22 is restored. 2026:JHHC:982 16 53. The part of the judgment passed by the learned 1st appellate court refusing partition of Khata No.33 is upheld. 54. The substantial question of law framed in this case is answered accordingly. 55. Accordingly this 2nd appeal is party allowed. 56. Pending interlocutory application, if any, is dismissed as not pressed. Appreciation for Amicus and Payment 57. Mr. Afaque Rashidi, Advocate was appointed as an amicus in this case by this Court. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of this case. 58. The Secretary, Jharkhand High Court Legal Services Committee is directed to ensure that the legal remuneration of the learned Amicus Curiae @ Rs.5,500/- per day subject to the cap of maximum permissible amount is duly paid to him within a period of 4 weeks upon submission of bills by him. 59. Let a copy of this judgment be communicated to the court concerned and to the learned Amicus and also to the Secretary, Jharkhand High Court Legal Services Committee. 60. Let the original records of the case be transmitted to the court concerned. (Anubha Rawat Choudhary, J.) 15.01.2026 Rakesh/- Uploaded on:-23rd May, 2026.