In The High Court of Judicature At Patna

(Civil Appellate Jurisdiction)

S.A no. of 2021

Harihar Mahto ---------------------Plaintiff/Appellant/Appellant

Versus
1 Smt Vimla Devi wife of Basilal Gupta,
resident of Mohalla- Dak Banglow Road,
P.s- Rafiganj, Distt- Aurangabad Defendant/Respondent/Respondent

2 Naresh Mahto son of Late Jitu Mahto

3 Metari Kuer wife of Bhola Mahto

4 Basanti Devi daughter of Bhola Mahto

5 Kamla Devi daughter of Bhola Mahto

6 Manju Devi daughter of Bhola Mahto

7 Gopal Mahto son of Late Dasai Mahto Defendant/Respondent/Respondent

Sub: Second Appeal

Index
Sl. No. Particulars Page No.

1. Memo of Appeal with affidavit 1 to….

2. Impugned Judgment

3. Vakalatnama

1.
 In the High Court of Judicature At Patna
(Civil Appellate Jurisdiction)
S.A no. of 2021

In the matter of memo of Appeal

Under section 100 of Civil Procedure

And

In the matter of

Harihar Mahto son of Late Desai Mahto resident of village- Shahpur, P.O& PS and

District- Aurangabad (Bihar) ---------------------Plaintiff/Appellant/Appellant

Versus
1 Smt Vimla Devi wife of Basilal Gupta,
resident of Mohalla- Dak Banglow
Road, P.s- Rafiganj, Distt- Aurangabad ….Defendant/Respondent/Respondent

2 Naresh Mahto son of Late Jitu Mahto

3 Metari Kuer wife of Bhola Mahto
4 Basanti Devi daughter of Bhola Mahto
5 Kamla Devi daughter of Bhola Mahto
6 Manju Devi daughter of Bhola Mahto
7 Gopal Mahto son of Late Dasai Mahto ….Defendant/Respondent/Respondent
To

The Hon’ble Mr Justice Sanjay Karol the Chief Justice of the High Court of

Judicature at Patna and her companion Justices of the said Hon’ble court.

The humble petition on behalf

of the above named petitioners

 2.

MOST RESPECTFULLY SHEWETH:-

Suit valued at Rs………………

Appeal Valued at Rs……………..

Plaintiff’s Case

The case of the Plaintiff/Appellant as set out in the plaint is that the suit land,

that is 5 decimal land of plot no 1609 under khata no 185 is the self acquired

property of the father of the plaintiff which has been purchased in the year

1942 and after execution the plaintiff’s father came in cultivating possession of

the same. Further case is that the father of the plaintiff Dasai Mahto had two

more brothers namely Jangi Mahto and Jitu Mahto. But the father of the

plaintiff became separate about 80 years ago and amicably partitioned the joint

family property and the land in dispute was purchased by Dasai Mahto after the

said partition from his own separate income. In the same way the father of the

plaintiff purchased other properties also through different sale deeds on

10.06.39 and 18.7.1939 which are mentioned in the schedule II of the plaint.

After execution of the deed the father of the plaintiff and the plaintiff came in

peaceful possession of the purchased land. Throughout the life of Dasai Mahto

the plaintiff remained in possession of the same. In the meantime he heard

rumor in the locality that out of the purchased property of his father 5 decimal
land of khata no 185, plot no 1609 has been sold by Naresh Mahto (respondent

no 2) in favour of one Vimla

3.

Devi (respondent no 1). He inquired the matter and found it true after obtaining

the certified copy of the sale deed on 24.8.2006. Further case of the plaintiff is

that defendant no 4 is of abnormal mind who can not judge what is right and

what is wrong and taking advantage of it respondent/defendant Naresh Mahto

made him sign on the disputed sale deed as witness. Further case is that the

defendants are also claiming lands as mentioned in schedule II of the plaint

over which they have no right. The respondent/defendant no 2 has no right to

alienate the land of the plaintiff. The transaction made by the

respondent/defendant no 2 is fully wrong and fraudulent and has no force in the

eye of law as no one can pass better title than he himself has. The cause of

action for the suit arose on 15.8.2006 when the plaintiff heard rumor about the

sale deed and on 24.8.06 when the certified copy of the sale deed was obtained

by the plaintiff which necessitated the present suit.

Defendant’s Case

Respondent/Defendant no 4 Gopal Mahto who is the own brother of the

plaintiff has filed written statement on 07.11.2006 in which he has admitted the

case of the appellant/plaintiff and has stated that he is illiterate person and has
no capacity to judge right and wrong and respondent/defendant no 2 took

advantage of him

4.

got his sign on the sale deed dated 03.5.05 as witness. He has stated further that

there is no existence of khata no 42 as mentioned in schedule II of the plaint.

Defendant no 1 and 2 filed joint written statement on 22.12.06 and defendant

no 3 filed also written statement on 22.12.06. Later on the legal heirs of

defendant no. 3 were substituted in place of him on account of his death. In

their respective written statements, defendant no 1,2 and 3, they have refuted

and disputed the case and claim of the plaintiff, inter alia, on the ground that

the suit is not maintainable, plaintiff has no cause of action, the same is barred

by law of specific relief act and principles of waiver, estoppel and

acquiescence. Further, it is the case of the defendant no 1 and 2 in the WS that

the court fees paid is insufficient. It has been stated in the W.S that the property

mentioned in the Schedule I of the plaint is the joint family properties of

appellant/plaintiff and respondent/defendant no. 2 to 4 acquired by their

common ancestor Dasai Mahto and still they coming in the joint possession of

them without any partition by meets and bounds. Further it is the case in the

W.S that Vishundhari Mahto had three sons namely Dasai Mahto, Jangi Mahto

and Jitu Mahto and Bisundhari Mahto was the karta of the family till his death
in the year 1957 and Dasai Mahto has no separate source of income. The sons

of Bishundhari Mahto died on after another in the state of jointness. It is also

incorrect to say that the property

5.

mentioned in schedule II of the plaint is also the self acquired property of Dasai

Mahto as Dasai Mahto had no separate source of income. Jangi Mahto died in

1955 and Jitu Mahto died in the year 1958 in the sate of jointness. After the

death of Bishundari Mahto in the year 1957, Dasai Mahto father of the plaintiff

became the karta and manager and remained as such till his death in 1981.

After his death Haridwar Mahto became the karta of the family. Dasai Mahto

acting as karta had also acquired some properties in the name of other members

of joint family out of joint family fund. The properties mentioned in schedule I

and II of the plaint are still joint and in the recent survey also these have been

shown in the joint names of the plaintiff/appellant and respondents/defendants.

Further it is the case of respondent/defendant no 1 and 2 that defendant no 2

was in urgent need of money so he after taking consent from joint family

members including the plaintiff and other defendants executed a registered sale

deed dated 3.5.2005 in favour of defendant no 1 for consideration and put her

in possession. It is specifically stated in the WS of defendant/respondent no 3

that though he has no knowledge of the sale deed dated 3.5.05 but

respondent/defendant no 2 executed the sale deed with the consent of and in the
knowledge of the plaintiff and his brother. Defendant no 4 who is the own

brother of the plaintiff and is hail and healthy with an intelligent mind also

signed on the sale deed dated 3.05.05 as witness. The aforesaid sale deed is

legal and operative as the defendant having

6.

full right transferred land of his legal share which he was retaining since few

years according to separation from joint family for convenience sake. The sale

deed dated 3.5.2005 is legal, genuine and operative one.

Finding of the Trial Court

On the basis of foregoing discussions, I find and hold that the plaintiff has not

been able to prove that the sale deed no. 4638 dated 3.5.05 ext. 2 is forged and

fabricated and the vendor had not right to transfer. Accordingly, this issue is

decided in favour of the defendants no. 1 to 3 and against the plaintiff.

Issue NO. VI:-

Neither this issue is pressed nor any material placed on the record by the

defendants no. 1 to 3 to prove that this suit is barred by specific Relief Act.

Accordingly, this issue is decided in favour of the plaintiff and against the

defendants no. 1 to 3.

Issue no. V:-

 Neither this issue is pressed nor any material placed on the record to prove that

the suit is barred by Principles of Estoppel, acquiescence and waiver. As such

this issue is decided in favour of plaintiff and against the defendants no. 1 to 3.

7.

Issue no. IV:-

The plaintiff has not impleaded his own brother Saryu Mahto and heirs of Bhichhan

Mahto who was co-vendee in the sale deed of the year 1942 whose presence in this

suit necessary for complete and effective adjudication of this suit. As such I find and

hold that this suit is bad for non-joinder of the persons described above. As such this

issue is decided in favour of defendants no. 1 to 3 and against the plaintiff.

Issue no. 1:-

Neither this is pressed or any material placed before the court. As such this issued is

decided in favour of plaintiff and against the defendant no. 1 to 3.

Issue no. II & VIII:-

On the basis of finding given on issue no 7 & 4 I find and hold that the plaintiff has no

cause of action for the suit and is not entitled to any reliefs claimed by him.
Accordingly, both the issues are decided against the plaintiff and in favour of the

defendants no. 1 to 3.

8.

Finding of the Appellate Court

As far as documents exhibited on behalf of the plaintiff to show that the suit

land is the purchased property of the father of the plaintiff by his separate

income after partition is concerned it has already been discussed earlier that the

sale deed dated 8.7.1942 is in the name of Dasai Mahto and his uncle Bichan

Mahto with respect to 18 decimal of land which itself suggests that it was joint

family property. Exhibit 1 to 1/b which are rent receipts are in the name of

Dasai Mahto in respect of 1.39 ½ decimal of land of and khata no

30,46,58,64,185,180,207 and 219 but plaintiff has not adduced paper of any

land exclusively in his name to show that out of the farming of those lands

plaintiff’s father had some income and from that income he purchased the suit

land. The documents of the plaintiff neither shows partition or explain the

separate income of the father of the plaintiff.

The witnesses of the plaintiff including his nephew and his own brother have

denied any separate source of income of Dasai Mahto except farming and
plaintiff has not adduced and exhibited the papers of any land exclusively in

name of Dasai Mahto from the income of which he could have purchased the

suit property. Moreover, even if it is presumed that the suit land has been

purchased by the father of the plaintiff by his own separate income through

kewala dated 8.7.42, it remains unanswered that how only Dasai Mehta among

9.

his all brothers (who are also the legal heirs of Bhichan Mahto) only got all the

18 decimal land of the sale deed which is also in the name of Bhichan Mahto

the uncle of Dasai Mahto. The evidences adduced on behalf of the plaintiff

both oral as well as documentary fails to prove that Dasai Mahto has any

separate income out of which he purchased the suit land after becoming

separate from his brothers which falsifies the case of the plaintiff as pleaded in

the plaint.

On the other hand when the evidences adduced on behalf of the

respondent/defendants no 2 and 3 are analyzed, this court finds that Exhibit A

is the rent receipt Marphat in the name of Dasai Mahto for 1.39 Acres of land

for the year 2006-07 including the subject matter of the suit and the rent has

been paid by Bhola Mahto brother of respondent no 2. Further, Exhibit B and

B/1 are the new Municipal survey purcha of old khata no 185 plot no 1609

carved out as plot no. 1127, 1128, 1130 and 1131 and other plot nos (not in

dispute in the present case) showing the joint names of Gopal Mahto, Harihara

Mahto, Sarju Mahto, Harihar Mahto, Bhola Mahto and Naresh Mahto. Exhibit
C is the New Final Municipal Survey Khatiyan published on 16 th February

2002 which relates to the joint ancestral land of the appellants and

respondent/defendant no 2 to 4 and Exhibit C/1 is the New municipal survey

khatiyan dated 16.02.2002 which also shows plot no 1127,1128,1130,1129 of

khata no 87 (old plot no 1609, khata no 185) which is the subject matter of the

suit has been jointly recorded in the names of the appellant and respondent no 2

to 4. The recent Municipal Khatiyans

10.

have presumptive value of correctness which the plaintiff/appellant has failed

to rebut and has also failed to prove that Dasai Mahto has separate source of

income. Apart from the documentary evidences respondents have also

examined altogether 4 witnesses including the independent witnesses residents

of Shahpur village who have supported the case of the respondent/defendant no

2 and 3. Being a member of joint family the respondent no 2 also has legal

share in the family property which is joint and respondent no 2 sold his share in

the land in favour of respondent no 1 through sale deed dated 3.5.05 with

consent of other members of the family as the deed bears the signature of

Gopal Mahto-own brother of plaintiff/appellant for which there is no bar in the

eye of law. Moreover, it is settled principle of law that plaintiff has to stand on

its own leg and it can not take benefit of the latches on the part of the

defendants. Accordingly, in view of the above discussion I came to the

conclusion that the appellant/plaintiff has failed to prove the case as set out in

the plaint that the suit land is the self acquired property of his father from his
separate source of income without the aid or assistance of the joint family

property and has also failed to prove that respondent no 2 has no right to

transfer the suit land through sale deed in favour of respondent no 1 and further

that sale deed dated 3.5.2005 is forge and bogus document. The findings of the

Ld, lower court below on it is, therefore, confirmed.

Being dissatisfied with the

Judgment dated 19.8.11 and

11.

Decree dated 29.8.11 passed in

T.S no. 168 of 2006 passed by

The Learned court of sub-

judge

(1) Aurangabad and the

judgement dated 26.8.2021

and decree under appeal

8.9.21 passed in T.A no.

39/11 5/19 by the Learned

court of Additional District

and Session Judge XI,

Aurangabad the appellant

prefers this memo of appeal

 on amongst the other

following main.

GROUNDS:-

i) For that the learned lower court has not properly framed issues in the suit

hence learned lower court arrived at wrong conclusion and illegally

dismissed the suit.

ii) For that the learned lower court has erred by holding that deft no.2 to 3

(respondent set no.2) are the master of the disputed land and the disputed

land is joint property.

12.

iii) For that the learned lower court has erred by believing the evidence of

defendants (Respondents ) and disbelieving the evidence of the plaintiff

(Appellant).

iv) For that the learned lower court did not consider the evidence of deft no.

4(Gopal Mahto) Respondent set no. 2 and other witnesses.

v) For that the learned lower court did not consider the plaint filed by the

plaintiff (Appellant) and arrived at wrong conclusion.

Substantial question of law

i) Whether the finding of the Learned Appellate court as well as Trial court is

based on perversity to the material available on the record ?

ii) Whether disbelieving registered deed of sale and placing reliance over the

order passed in Bataidari case is contrary to the settled law?

iii) Whether the order passed in Bataidari case is binding on the parties who

were not impleaded as parties?

iv) Whether the order in Bataidari creates right and title?

13.
It is therefore prayed

that your Lordships

may graciously be

pleased to admit this

memo of Appeal, issue

notice to the parties

further be pleased to set

aside the Judgement

dated ……….. and

Decree

dated………. passed in

T.A.No………………..
 .passed by the Learned

District Judge,

Aurangabad as well as

the judgment

dated………….and

decree

dated……….passed in

T.SNo………………by

the Learned Session

Judge, Aurangabad.

14.

And/or

Pass such other order(s)

as your Lordships may

deem fit and proper in

the interest of justice.

And for this the petitioner shall ever pray.

.

15.

CERTIFICATE

I, Certify that the ground set forth above are good grounds for the instant petition.

I, also certify that the petitioners have not moved this Hon’ble Court earlier against
impugned order.

It is my opinion that the notice or copy of the application is necessary to be served on

the Attorney General of India or The Advocate General of Bihar under XXVII-A
Rule-1 of the code of civil procedure.
 Advocate for petitioner

16.

AFFIDAVIT

I, Harihar Mahto son of Late Desai Mahto resident of village- Shahpur, P.O& PS and
District- Aurangabad (Bihar) do hereby solemnly affirm and state as follows:-

1. That I am Appellant in this memo of Appeal and as such as well acquainted

with the facts and circumstances of this case.

2. That the contents of this memo of Appeal have been read over and explained to
me in Hindi which I have fully under stood the statements made in paragraph
 no… are true to my knowledge and those made in paragraph no……are true to
my information derived from the record and have belief to be true and rest are
by way of submission before this Hon’ble court.

3. That the Annexures are true/photocopies of its originals.