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 1^st appellate court. Consequently, the defendants are the appellants before this Court.

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 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 le