Partition decree upheld where plaintiffs prove descent via documents despite defendants' non-contesting written denial; additional evidence rejected at second appeal for unexplained prior omission, absent substantial question of law.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

This appeal has been filed against the judgement dated 05.07.2023 (decree dated 18.07.2023) passed by learned District Judge I, Palamau at Daltonganj in Partition Appeal No.26 of 2010 affirming the judgement and decree dated 23.04.2010 (decree signed on 12.05.2010) passed by learned Sub-judge II, Palamau at Daltonganj in Partition Suit No.117/2004.

2. The learned counsel for the appellants has submitted that the appellants were the defendants in the suit and, though they filed written statements (except defendant no. 4), they did not lead any evidence before the court. Consequently, the court proceeded under Order VIII Rule 10 of Code of Civil Procedure and the suit was decreed.

3. The learned counsel submits that the specific case of the plaintiffs was that the entire suit property was owned by Thakur Sao, who had a wife, namely, Moti Devi, and the defendants are the descendants through Moti Devi. Their further case was that upon the death of Moti Devi, Thakur Sao married Shivrani Devi in the year 1955 and the plaintiffs claimed that they are the descendants of Thakur Sao through Shivrani Devi.

4. The learned counsel has submitted that the suit was partly decreed only in connection with part of the suit property to the extent of 2.25 acres, as the plaintiffs could produce documents regarding ownership of the property in the name of Thakur Sao only to that extent. He submits that though the defendants did not adduce any evidence, but as per the written statement, Shivrani Devi was not the wife of Thakur Sao and, consequently, the plaintiffs were not born out of a wedlock between Shivrani Devi and Thakur Sao. It was their further case that Shivrani Devi was the wife of one Kauleshwar Ram. He has submitted that in the written statement at paragraph 12, a specific statement was made to prove that Shivrani Devi was the wife of Kauleshwar Ram and that she had purchased a property in the year 1957 in which the name of her husband was shown as Kauleshwar Ram. He submits that as per the case of the plaintiffs, Thakur Sao had died in the year 1986.

5. The learned counsel submits that the case of the plaintiffs was that Shivrani Devi had married Thakur Sao in the year 1955. He has also submitted that the documents which have been considered by the learned trial court to decree the suit are the voter list, ration Card and school transfer certificate, which could not be said to be documents to show that Shivrani Devi was the wife of Thakur Sao.

I.A. No.317 of 2026

6. The learned counsel for the appellants has submitted that I.A. No.317 of 2026 has been filed seeking to adduce additional evidence before the 2^nd appellate court by bringing on record a copy of sale deed no.5775 dated 16.02.1957 executed by Ramchandra Ram in favour of Smt. Shivrani Devi, wife of Kauleshwar Ram. A photocopy of the said document has been annexed with the interlocutory application. He submits that in ground no.11 of the memo of appeal, it has been stated that a separate petition under Order XLI Rule 27 is to be filed for additional evidence.

7. During the course of hearing and upon perusal of the interlocutory application, the learned counsel for the appellants is not in a position to explain as to why the defendants failed to participate in the trial and further in spite of filing appeal before the 1^st appellate court, why no steps were taken for adducing additional evidence.

8. In paragraph 4 of the interlocutory application, it is stated that Brahmdeo Prasad Agrawal, who was appellant no.2 in Partition Appeal No.2