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Patna High Court

Hari Charan MistriversusRam Govind Mistri

Decided
Disposal
DISMISSED

Holding

The appeal is dismissed; the lower courts' decree granting the plaintiff a one‑third share is upheld.

Summary

The appellant, Hari Charan Mistri, challenged a decree granting the plaintiff a one‑third share in a jointly purchased property, alleging a prior partition by metes and bounds. The trial court, after hearing both parties, upheld the plaintiff's claim based on a 1961 sale deed showing equal ownership among the co‑sharers. The appellant's title appeal was also dismissed, with the appellate court finding no evidence of any earlier partition and noting that separate possession does not constitute a legal partition. On second appeal, the High Court affirmed the lower courts' findings, observing that the appellant failed to produce any documentary or oral evidence of a prior division. Consequently, the appeal was dismissed at the admission stage under Order XLI, Rule 11 of the Code of Civil Procedure.

Issues considered

  • Whether a prior partition by metes and bounds existed between the co‑owners of the joint property.
  • Whether the plaintiff is entitled to a one‑third share of the jointly owned land.
  • Whether the appellate courts erred in their findings of fact and law.
  • Whether any question of law arises warranting interference with the lower courts' decree.

Legislation cited

Subjects

  • partition suit
  • joint ownership
  • sale deed
  • metes and bounds
  • second appeal
  • civil procedure
  • property law

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                     SECOND APPEAL No.164 of 2024
                 ======================================================
                 Hari Charan Mistri, Male, aged about 91 years, son of Late Baliram Mistri @
                 Vikan Mistsri, resident of village- Prasadi English, Police Station- Arwal,
                 District- Arwal.
                                                                            ... ... Appellant/s

                                                    Versus

           1.    Ram Govind Mistri, son of Late Ram Lakhan Mistri,
           2.    Chand Govind Mistri, son of Late Ram Lakhan Mistri,
           3.    Suraj Mukhi Devi, daughter of Late Ram Lakhan Mistri,
           4.    Baliram Mistri @ Doman Mistri, son of late Sohrai Mistry,
           5.     Most. Tetari Devi, wife of Late Sohrai Mistri,
                  All resident of Village- Prasadi English, Police Station- Arwal, District-
                  Arwal.
                                                                         ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Appellant/s    :      Mr. Dhanendra Chaubey, Advocate
                                               Mr. Kamlesh Kumar Sharma, Advocate
                 For the Respondent/s   :      Mr. Surendra Kishore Thakur, Advocate
                                               Ms. Priyam Kumari, Advocate
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
                                       ORAL ORDER

3   12-02-2026                  Heard learned counsel for the appellant and learned

                   counsel for the respondents.

                                2. This second appeal has been filed against the

                   judgment and decree dated 16.04.2024 passed by the Additional

                   District Judge-III, Jehanabad, in Title Appeal No.14 of 2018

                   whereby judgment and decree dated 21.08.2008 passed in the

                   Partition Suit No.51 of 2005 by the Sub-Judge, 1 st, Jehanabad,

                   has been upheld.

                                3. This second appeal has been filed by the defendant-

                   appellant. The original plaintiff filed Partition Suit No.51 of
Patna High Court SA No.164 of 2024(3) dt.12-02-2026
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          2005 for 1/3rd share in the schedule property. The defendant

          no.1 appeared and filed his written statement while the

          defendant no.2, though appeared but did not file any written

          statement. The learned trial Court after considering the pleading

          of the parties framed issues and proceeded for trial. The learned

          trial Court upon hearing the parties and considering the

          materials available on record, decreed the suit and allowed 1/3rd

          share to the original plaintiff.

                       4. Being aggrieved by the judgment of the trial Court,

          the defendant-appellant filed Title Appeal, which too, was

          dismissed having considered the submissions of the parties,

          materials on record as well as judgment of the learned trial

          Court.

                       5. From the judgment of the first appellate Court, it is

          clear that the appellate Court, which is the final Court of facts,

          after considering the evidence adduced by the parties and the

          materials on record held that               the plaintiff-respondent has

          proved his case on the basis of sale deed dated 22.02.1961

          (Ext.1) purchased jointly by the original plaintiff and the

          defendant nos. 1 and 2 in which all the vendees have equal

          shares. The defendant no.1 in his written statement has

          specifically pleaded that the property was already partitioned
Patna High Court SA No.164 of 2024(3) dt.12-02-2026
                                             3/4




          between the parties and the defendant no.2 was allotted a

          separate property in lieu of the share in Ext.1. Defendant No. 1

          neither produced any documentary evidence nor adduced oral

          testimony to substantiate his plea that a prior partition by metes

          and bounds had taken place among the parties. In the absence of

          any cogent evidence in support of such a plea, the allegation of

          previous partition between the three purchasers, namely,

          plaintiff No. 1 and defendant Nos. 1 and 2 has not been proved.

          Consequently, the present suit has been instituted merely for the

          purpose of claiming partition of 2 kathas of land appertaining to

          Khata No. 66, which was admittedly purchased in the joint

          names of plaintiff No. 1 and defendant Nos. 1 and 2. Defendant

          no.2 appeared but did not file any written statement. There is no

          document to prove that the joint property was earlier partitioned

          by metes and bounds.

                       6. On the contrary, the plaintiff has successfully

          established that the property in dispute was acquired by way of

          a sale deed executed in the joint names of the parties and that no

          partition by metes and bounds has ever taken place between

          them. The mere fact that the co-sharers have been maintaining

          separate mess or are in separate possession of portions of the

          property does not amount to a legal partition or severance of
          Patna High Court SA No.164 of 2024(3) dt.12-02-2026
                                                       4/4




                    status in respect of the joint property held by the plaintiff and

                    defendant nos. 1 and 2.

                                 7. For the reasons aforesaid, I find no merit in the

                    instant Second Appeal. Concurrent findings recorded by the

                    Courts below in favour of plaintiff are fully justified by the

                    evidence on record. Concurrent findings recorded by the Courts

                    below are not based on misreading or misappreciation of

                    evidence nor it is shown to be illegal or perverse in any manner

                    so as to call for interference in Second Appeal. No question of

                    law, much less substantial question of law arises for

                    adjudication in the instant Second Appeal.

                                 8. Accordingly, the appeal is dismissed at the stage of

                    admission under Order XLI, Rule 11 of the Code of Civil

                    Procedure.

                                 9. Pending interlocutory applications, if any, shall also

                    disposed of.


                                                                (Khatim Reza, J)
J. Alam/-
Shyambihari

U


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