2026:JHHC:685 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S. A. No. 367 of 2018 1. Mostt. Fulwanti, aged about 70 years wife of Late Bishun Mahto. (Deleted vide order dated 06.08.2024) 2. Reena Devi, aged about 42 years daughter of Late Bishun Mahto, wife of Ashok Yadav, resident of Village-Chandrodih, P.O., P.S. & District-Koderma. 3. Chuna Devi, aged about 45 years daughter of late Bishun Mahto, wife of Rajkumar Raut, resident of Vill. & P.O.- Lokai, P.S. & District-Koderma. 4. Krishnadeo Yadav @ Krishnadeo Mahto, aged about 52 years, son of Late Bishun Mahto. 5. Ram Narain Yadav @ Ram Narain Mahto, aged about 43 years son of Late Bishun Mahto. No. 1, 4 and 5 resident of Village & P.O. Kheshmi Devipur, P.S.- Markacho, District-Koderma. … … Defendants/Appellants/Appellants Versus Kameshwar Yadav, son of Late Lekho Yadav, resident of Village- Kheshmi Devipur, P.O. & P.S.- Markacho, District-Koderma. … … Plaintiff/Respondent/Respondent --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Amar Kumar Sinha, Advocate : Mr. Md. Abdul Wahab, Advocate For the Respondents : None --- 13/12.01.2026 1. Heard the learned counsel for the appellants. 2. This second appeal has been filed against the judgment dated 25.07.2018 (decree signed on 03.08.2018) passed by learned District Judge-II, Koderma in Civil Appeal No. 10 of 2013 affirming the judgment dated 28.02.2013 (decree signed on 08.03.2013) passed by learned Civil Judge (Sr. Division)-I, Koderma in Partition Suit No. 16 of 2003. 3. The partition suit was partly decreed in favour of plaintiff by the learned trial court and the judgment and decree passed in partition suit was affirmed by the learned 1st appellate court. Consequently, the defendants are the appellants before this Court. 2026:JHHC:685 2 4. The partition suit was filed for passing a preliminary decree of partition to the extent of plaintiff’s half share in the Schedule-A properties and for carving out a separate taktha appointing a Survey Knowing Pleader Commissioner. 5. Learned counsel for the appellants has submitted that the suit was filed seeking partition and the partition suit was partly decreed in favour of the plaintiff and partly dismissed with respect to a portion of the suit property which was already sold by the grand-father of the plaintiff namely Bhikhi Mahto under Khata No. 201 and 202 in village Devipur, District- Koderma. 6. While giving the genealogy, the learned counsel for the appellants has submitted that Bhikhi Mahto was a common ancestor of his two sons namely Lekho Mahto and Bishun Mahto; Lekho Mahto had one son namely Kameshwar Mahto (Kameshwar Yadav) who was the plaintiff in the case. The descendants/legal heirs of Bishun Mahto were the defendants. Bishun Mahto had two sons namely Kishundeo Mahto and Ram Narayan Mahto. (1) Mostt. Phulwanti, W/o: Bishun Mahto (2) Rina Devi D/o: Late Bishun Mahto (3) Chuna Devi D/o: Late Bishun Mahto (4) Kishundeo Mahto S/o: Bishun Mahto and (5) Ram Narayan Mahto S/o: Bishun Mahto were the defendants in the case. 7. Learned counsel for the appellants has submitted that the judgment passed by both the courts are perverse inasmuch as the memorandum of partition deed i.e. Exhibit-G has not been properly considered. The learned counsel for the appellants has referred to the proposed substantial question of law No. B which is quoted as under: “Whether the finding of learned courts below on issue of previous partition is perverse on the face of Exhibit-G the memorandum of partition and admission of P.W.6 (Plaintiff) made in paragraph 13 and 20 of his cross examination?” 8. Learned counsel for the appellants has submitted that the appeal be admitted on the aforesaid substantial question of law and notice be issued. The learned counsel for the appellants has also submitted that the plaint was amended in the year 2011 and the principle of relate 2026:JHHC:685 3 back with respect to the pleadings would apply and the trial court has failed to properly appreciate the pleadings and the evidence placed on record. 9. The learned counsel for the appellants has submitted that the genealogy pointed out as above is not in dispute. 10. After hearing the learned counsel for the appellants, this Court finds that the plaintiff (respondent herein) had filed the suit for partition claiming ½ share in schedule A property. 11. The specific case of the plaintiff was that one Bhikhi Mahto was common ancestor of both the parties and the properties mentioned in Schedule -A i.e. land of Khata no. 201 & 202 were having different plots. Some of the properties were ancestral properties of said Bhikhi Mahto and the rest were acquired by the plaintiff. 12. It was stated that Bhikhi Mahto died about 22 years ago leaving behind him two sons, namely, Bishun Yadav and Lekho Yadav who jointly succeeded Bhikhi Mahto and came in joint possession of the suit property and the father of the plaintiff, Lekho Mahto, died leaving one son, the plaintiff. Similarly, Bishun Mahto died leaving behind two sons namely Kishundeo Mahto and Ram Narayan Mahto. 13. It was the case that plaintiff’s father Lekho Mahto died just after death of Bikhi Mahto in state of jointness with his brother Bishun Mahto, who was defendant No.1. It was further stated that the plaintiff was minor and Bishun became Karta of the family and was managing the family properties. In spite of demand by the plaintiff, the defendants were not furnishing the accounts of the produce of the suit land and ultimately when the plaintiff demanded partition, the defendants denied the same. 14. The defendants appeared and filed their written statement stating therein that the suit was bad for previous partition, misjoinder and non-joinder of necessary parties etc. It was asserted that khata no. 201 was self-acquired property of Bhikhi Mahto and was sold to Smt. Fulwanti Devi by virtue of registered sale deed and she was put in possession and her name was also mutated in the revenue records. 2026:JHHC:685 4 Bhikhi Mahto had also sold another property in khata no. 202 to Indo Dhobi through a registered sale deed, who was in possession over 71 decimals land. 15. It was also contended that genealogy of the plaint was incomplete and the plaintiff and defendant do not constitute joint family. Bhikhi Mahto was not the owner or in possession of all the suit land mentioned in Schedule A. Rather, it was stated that none of the property was the ancestral property of Bhikhi Mahto. 16. It was asserted that plaintiff Kameshwar Yadav has no male issue and he had only daughter and had no earning and he was being maintained by defendant Bishun Mahto. 17. It was further asserted that the plaintiff Kamweshwar Yadav demanded partition in the year 1980 with respect to land falling under khata Nos. 41 and 36 of village Kusmai and khata No. 201 of village Devipur on which Bhikhi Mahto partitioned the land. The land of khata Nos. 36 and 41 of village Kusmai was allotted in the share of plaintiff Kameshwar Yadav and other lands of village Devipur bearing khata No. 201 was allotted in the share of Bishun Yadav. The partition was held in presence of the family members of Bishun Yadav and Kameshwar Yadav. The land of village Kusmai was valuable so the plaintiff gladly accepted it and both parties came in possession of their allotted share. Thereafter, a memorandum of partition was prepared in the year 1983 (added through amendment). 18. It was further asserted that Lekho Mahto, father of the plaintiff died in the year 1966 -67 and Bhikhi Mahto had died in the year 1982. During the pendency of the suit defendant no. 1 Bishun Mahto expired and his wife Fulwanti Devi appeared and adopted the written statement filed by Bishun Mahto and also filed written statement on her behalf. 19. The learned trial court had framed the following issues for consideration:- i. Whether the suit is maintainable in its present form? ii. Have the plaintiff valid cause of action for the suit? 2026:JHHC:685 5 iii. Whether the suit is barred by law of limitation, adverse possession, waiver and estoppel? iv. Whether the suit suffers from non-joinder of necessary parties? v. Whether there is the unity of title or unity of possession between the parties with respect to the suit properties as mentioned in Schedule – A in the plaint? vi. Whether the suit property are joint and undivided between the parties and same is liable to be partitioned as per the share claimed? vii. Whether the plaintiff is entitled for relief or reliefs as sought for by him and is entitled for the cost of the suit? 20. Both the parties had led oral and documentary evidences before the court. 21. Exhibit-G, which is the bone of contention as raised by the learned counsel for the appellants during the course of hearing, was the memorandum of partition said to have been prepared on 15.01.1983. 22. The learned trial court considered the issue No.(v) and (vi) together which essentially related as to there was the unity of title or unity of possession amongst the parties with respect to the suit properties and whether the suit property are joint and undivided between the parties and is liable to be partitioned as per the share claimed. The learned trial court after considering the materials on record and also discussing the memorandum of partition, which was brought for the first time after the death of defendant No.1, has ultimately held that there was no partition in the year 1980, nor the memorandum of partition was prepared in the year 1983 and held that there was unity of title and unity of possession with respect to the suit property except to the land which was already sold by Bhikhi Mahto. 23. The ultimate findings of the learned trial court in connection with partition in the year 1980 and the memorandum of partition of the year 1983 (Exhibit-G) has been recorded in paragraph 18 of the trial court’s judgment which is quoted as under:- “18. Having gone through the above discussion I find that no partition held in the year 1980 nor memorandum of partition 2026:JHHC:685 6 prepared in the year 1983 by both parties because if there was existence of memorandum of partition in between the parties then the defendant might have incorporated it in his W.S. filed in the year 2004. Also signature of plaintiff on deposition does not matches with the signature of plaintiff over memorandum of partition vide Exhibit-G. No where plaintiff Kameshwar Yadav has admitted his signature our memorandum of partition. The defendant has failed to file original sale deed said tobe paid its consideration money by Late Bhikhi Mahto and purchased in the name of plaintiff Kameshwar Yadav of land of mauza Kushmai Khata no. 36 & 41.D.W.3 Bhuneshar Yadav Fufera Bhai of defendant no.3 Bishun Yadav has stated vide para-26 that the plaintiff Kameshwar Mahto resides at native home Khesmi Devipur contradicting the statement of defendant that after partition the plaintiff has been living at Kushmai on his valuable share allotted to him by his grand- father in the year 1980. It is also clear that Late Bhikhi Mahto has sold 3.49 acre land to Fulwanti Devi in the year 1977 under khata no.201 and also 16 decimal to Began Singh in the year 1982 under khata no.201and 71 decimal land to Babulal, Kali Dhobi and Mahendra Dhobi in the year 1981 under khata no.202 out of his self acquired property vide Ext.A/1, Ext.A/4 and Ext.A available on record in interest of his family member described in the recital of aforesaid deeds and after his death his both sons plaintiff Kameshwar Mahto and defendant Bishun Yadav became owner of his left property. There has been unity of title and unity of possession of both parties over the remaining land. The properties which succeeded by plaintiff and defendant is joint and undivided. The plaintiff has half share on remaining land mentioned in Schedule -A of the plaint (except already sold by Late Bhikhi Mahto). Accordingly, both issues are decided in favour of the plaintiff.” 24. The learned 1st appellate court has framed the following points for determination: - i. Whether there is unity of title and unity of possession between the parties with respect to the suit land? ii. Whether the properties in the name of the common ancestor of the parties, namely Bhikhi Mahto was partitioned during his life-time in the year 1980 and thereafter on 15.1.83, a memorandum of partition was prepared, bearing signature of the plaintiff? 2026:JHHC:685 7 iii. Whether the judgement & decree of the Court is liable to be set aside? 25. So far as learned 1st appellate court is concerned, a detailed discussion has been made in paragraph 27 in connection with memorandum of partition dated 15.01.1983 and the learned 1st appellate court after discussing the materials on record and considering the totality of the circumstances held that no reliance can be placed on memorandum of partition (Ext. G.). The discussion is quoted as under:- “27. The defendants have filed a memorandum of partition dt. 15.1.83 (Ext, G). I perused the Ext. G and found that it is written on plain paper on which signatures of Kameshwar Yadav and Bishun Mahto as well as signatures of the witnesses. Bala Ram. Raj Kumar Singh Saryu Mahto, Baleshwar Yadav, Sheo Kumar Yadav. Bhuneshwar Yadav are shown without date, and the maker of the deed is one Somar Singh. However, his signature is missing thereon. It is pertinent to note that in the W.S of the deceased defendant no. 1 who is son of the common ancestor initially the plea regarding memorandum of partition was not taken however, after the death of original defendant no. 1 when his wife and two daughters became the parties as substituted defendants, the wife of the deceased defendant no. 1, for first time taken the plea in her W.S. that the suit is bad for previous partition between Kameshwar Yadav and Bishun Mahto, the original defendant no. 1 in the year 1983 in presence of respectable persons of the village and prior to it, it was pleading of the defendant that the suit land was orally partitioned during the life-time of common ancestor in the year 1980. However, defendant nos. 1 & 2 who had fled a joint W.S with the deceased defendant no. 1 and the substituted defendant amended their pleading vide order dt. 7.7.11 after about 8 years of the filing of the suit, and they introduced the pleading that a memorandum of partition was prepared in the year 1983. It is relevant to mention here that the original defendant no. 1 who is signatory of memorandum of partition, in his deposition has not stated anything about the same rather at para 38 of his cross examination he admitted that he cannot produce any paper regarding partition of the suit land. The defendants have failed to explain as to why such important document was withheld by the original defendant no. 1 whereas, it has come in the evidence that after the death of the common ancestor, he became the Karta of the family and as per the defendant's case, the memorandum of partition was 2026:JHHC:685 8 executed in his presence. Furthermore, the plaintiff who is also shown as one of the signatories of the memorandum of partition, was not confronted with the said memorandum of partition during his cross-examination and he was not asked to admit or deny his signature on it. The defendants have not produced the maker/scribe of the memorandum of partition as witness in this case whereas, the memorandum of partition suggests that one Somar Singh was the scribe of the memorandum of partition and the defendants have put their signatures in his presence. It is quite surprising and for the reason best known to defendants, the signature of the scribe of the memorandum of partition is not present. Although, the defendant has examined one of the witnesses of the memorandum of partition (DW3), who has proved his signature but in the totality of the circumstances, no reliance can be placed on memorandum of partition (Ext. G.)” 26. This Court finds that both the learned courts have taken into consideration the memorandum of partition (Exhibit-G) and have cited sound reasons for coming to a conclusion that no reliance could be placed on the memorandum of partition (Exhibit-G). Further learned 1st appellate court has also taken into consideration in paragraph 28 of its judgment that barring the rent receipts with respect to the property which was sold in favour of the wife of the original defendant no. 1, no document regarding possession of the defendants over rest of the land of suit land was filed. It was also recorded that it was an admitted fact that the parties were separate in mess and residence and the plaintiff had pleaded that the parties were cultivating as per their convenience. The other materials placed on record were also taken into consideration by the learned 1st appellate court and ultimately it was held that there was no previous partition and the learned 1st appellate court has ultimately upheld the judgment passed by the learned trial court and dismissed the appeal. 27. Upon going through the judgment of both the learned courts, this Court is of the view that there is no perversity in the matter of appreciation of materials on record while coming to a finding that there was no previous partition. This Court also finds that the learned courts have not committed any perversity while appreciating Exhibit- 2026:JHHC:685 9 G which was just one of the materials for consideration with respect to alleged previous partition. 28. The learned court ultimately held that the plaintiff was entitled to ½ share of the suit property except to the extent the property already sold by the grand father of the plaintiff from his self-acquired property. 29. In view of the aforesaid facts and circumstances, this Court is of the considered view that no question of law, much less any substantial questions of law is involved in this 2nd appeal. 30. This Court finds no merits in this 2nd appeal which is hereby dismissed. 31. Pending Interlocutory application, if any, is dismissed as not pressed. 32. Let a copy of this order be communicated to the concerned courts through “Fax/e-mail”. (Anubha Rawat Choudhary, J.) 12.01.2026 Rakesh/- Uploaded on:-20.02.2026