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Patna High Court
Deonandan Yadav @ Deonarayan Yadav vs Baliram Gop on 15 May, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.424 of 2019
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1. Deonandan Yadav @ Deonarayan Yadav, Son of Late Jatuni
Gope @ Ramjatan Yadav, Resident of Village-Parariya, Post
Office-Duggal, Police Station-Kasma, District-Aurangabad.
2. Mahendra Yadav, Son of Late Jatuni Gope @ Ramjatan Yadav,
Resident of Village-Parariya, Post Office-Duggal, Police
Station-Kasma, District-Aurangabad.
3. Ganesh Yadav, Son of Late Jatuni Gope @ Ramjatan Yadav,
Resident of Village-Parariya, Post Office-Duggal, Police
Station-Kasma, District-Aurangabad.
4. Mahesh Yadav, Son of Late Jatuni Gope @ Ramjatan Yadav,
Resident of Village-Parariya, Post Office-Duggal, Police
Station-Kasma, District-Aurangabad.
5. Ramesh Yadav, Son of Late Jatuni Gope @ Ramjatan Yadav,
Resident of Village-Parariya, Post Office-Duggal, Police
Station-Kasma, District-Aurangabad.
6. Chandra Devi @ Chandrama Devi, D/o Late Jatuni Gope @
Ramjatan Yadav, Resident of Village-Parariya, Post Office-
Duggal, Police Station-Kasma, District-Aurangabad.
7. Muniya Devi, D/o Late Jatuni Gope @ Ramjatan Yadav,
Resident of Village-Parariya, Post Office-Duggal, Police
Station-Kasma, District-Aurangabad.
8. Most. Gauri Kunwar, Wife of Late Jatuni Gope @ Ram Jatan
Yadav, Resident of Village-Parariya, Post Office-Duggal,
Police Station-Kasma, District-Aurangabad.
... ... Appellant/s
Versus
Baliram Gop, Son of Dewa Gope, Resident of Village-Parariya,
Post Office-Duggal, Police Station-Kasma, District-Aurangabad.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Narendra Kumar, Adv.
Mr. Tej Narayan Singh, Adv.
Mr. Akash Ambuj, Adv.
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For the Respondent/s :
Ms. Sunita Kumari, Adv.
Mr. Dharmendra Kr. Sinha, Adv.
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CORAM: HONOURABLE MR. JUSTICE KHATIM
REZA
CAV JUDGMENT
Date : 15-05-2025
Heard learned counsel for the appellants and
learned counsel for the respondent.
2. This Second Appeal has been filed by the
defendant/appellants/appellants against the judgment and
decree dated 20.06.2019 passed in Partition Title Appeal No.
18 of 2008/115 of 2018 by the Additional District Judge-III,
Aurangabad, whereby, the learned Appellate Court has
affirmed the judgment and decree dated 30.04.2008 passed by
the Sub-Judge-I, Aurangabad in Partition Suit No. 172 of
2004, decreeing the suit of the plaintiff/respondent.
3. In this appeal, the following substantial questions
of law have been formulated for determination:-
(I). Whether the learned Appellate Court passed the
judgment in violation of mandatory provision of law under
Order XLI Rule 31 of Code of Civil Procedure when it did not
formulate any point of determination?
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(II). Whether the decision of the learned Appellate
Court is not supported by the independent reasons as while
affirming the judgment and decree of the learned Trial Court,
the learned Appellate Court has just copied the decision made
by the learned Trial Court.?
4. In order to gauge the matter in its correct
perspective, it is necessary to briefly re-state what the suit
entails. The suit was filed by the plaintiff/respondent for
partition of his 8 Annas (half share) in joint family property
and for carrying out his share by appointing survey knowing
Advocate Commissioner after drawing final decree and
plaintiff be put in possession. The details of the land has been
given in the plaint. The plaintiff has also given genealogical
table at the foot of the plaint which shows the relationship
between the plaintiff and the defendant. It is further pleaded
that the land of Khata No. 25 of village Parariya, district-
Aurangabad stands recorded in the C.S. Khatiyan in the name
of Palit Gope, son of Pati Gope and land of Khata No. 31 of
village-Parariya, district-Aurangabad stands recorded in C.S.
Khatiyan in the name of Rangu Gope, son of Mangru Gope. It
is further contended that Palit Gope and Rangu Gope although
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they were recorded separately in C.S. Khatiyan but they were
members of a joint Hindu family and were in joint possession
of land of Khata Nos. 25 and 31 respectively. Rangu Gope
died issueless in a state of jointness and hence, Palit Gope's
interest devolved upon his nearest relation. After the death of
Rangu Gope, Palit Gope became the sole owner of Khata No.
25 and 31 of village-Parariya the said Palit Gope died leaving
behind his three sons Jhagaru Gope, Raudi Gope and Dewa
Gope in a state of jointness and after the death of Palit Gope,
Jhagaru Gope became the Karta and Manager of the joint
family. Raudi Gope also died issueless leaving behind his
surviving two full brothers, Jhagaru Gope and Dewa Gope in
the state of jointness. Jagaru Gope died leaving behind his son
Jatuni Gope (original defendant) and full brother, namely,
Dewa Gope. Dewa Gope also died leaving behind Baliram
Gope (plaintiff). After death of Jhagaru Gope and Dewa Gope,
Jatuni Gope became Karta and the sole Karta of joint family
of the plaintiff including the defendant. The suit property is
the ancestral property or coparcener property in which
plaintiff is a coparcener having equal interest with defendant
Jatuni Gope. Hence, there is a unity of title and possession
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amongst the plaintiff and defendant over the suit property. Up
till now no partition has been affected either among the sons
of Palit Gope or amongst the plaintiff and the defendant. The
defendant with intention to deprive the plaintiff wanted to
transfer the property without partition, hence, the plaintiff
asked the defendant to partition the suit property by meets and
bounds which was finally refused by the defendant.
5. On summon, the original defendant Jatuni Gope
appeared and filed his written statement and raised objection
with regard to the maintainability of the suit and also claimed
that the plaintiff has no locus standi to bring the suit against
the defendant. It is further contended that the plaintiff is not
related to the family of the defendant/appellants and denied
his genealogy given in the plaint and that Dewa Gope, father
of the plaintiff was not the son of Late Palit Gope nor the
member of undivided Hindu joint family and also gave a
genealogical table in his written statement in respect of family
of Ama Gope.
6. Further case of the plaintiff is that Rangu Gope
sold his entire land of Khata No. 31 for his legal necessity in
favour of Nagina Devi, wife of Jhagru Gope on 21.07.1926
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for consideration amount of Rs. 75/- and delivered the
possession to Nagina Devi over her purchased land. On the
same date a memorandum of sale was reduced into writing
over which Rangu Gope put his L.T.I and signed by Abdul
Rahim, scribed by Nathuni Lal and it was attested by Abdul
Rahim in presence of witnesses. Since then Nagina Devi came
in possession of the purchased property and her name was
mutated in the Sarista of ex-landlord. On her death, her
husband and her son Jatuni Gope came in possession. On
death of Jhagaru Gope, husband of Nagina Devi, Jatuni Gope
became absolute owner and came in possession over the same
as Raiyat. He is in possession and he is enjoying his usufruct.
It is vehemently submitted that Jhagru Gope never died in the
state of jointness with Palit Gope instead he died in a state of
jointness with Raudi Gope. It is vehemently denied that the
suit land is neither ancestral nor personal property of the
plaintiff, therefore, the suit is fit to be dismissed.
7. On the basis of pleadings, the learned Trial Court
had framed eight issues in which Issue Nos. 5, 6 and 7 were
taken into consideration and other issues were formal in
nature. The learned Trial Court after considering the pleadings
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and evidence adduced by the parties as well as materials on
record has held that plaintiff is entitled to half share and
decreed the suit.
8. Being aggrieved by the judgment and decree dated
30.04.2008
passed in Partition Suit No. 172 of 2004 by the
learned Sub-Judge-I, Aurangabad, the defendant/appellants
preferred Partition Appeal No. 18 of 2008/115 of 2018.
9. After hearing the parties, the learned lower
Appellate Court considered the Issue Nos. 5, 6 and 7 for
consideration in the Title Appeal and copied the same finding
of the Trial Court in its consideration and dismissed the
appeal.
10. Learned counsel for the
defendant/appellants/appellants has submitted that the learned
lower Appellate Court has failed to apply its judicial mind
while passing the impugned judgment and decree. Without
considering the materials available on record and the
documentary evidences of the appellants, the lower Appellate
Court has dismissed Partition Appeal. It is further submitted
that both the parties adduced their evidence i.e. oral as well as
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documentary. The documents adduced by the plaintiff were
exhibited as follows:-
Ext.-1 Consolidation Khatiyan
Ext.-2 Cadestral Survey Khatiyan
Panchnama marked as Ext.-X
The documentary evidences adduced on behalf of
the defendant are as follows:-
Ext.-A Vakalatnama
Ext.-A1 Signature of the Advocate on the
written statement
Ext.-B to B5 Rent receipts
Ext.-C to C2 Zamindari receipts
Ext.-D Unregistered sale deed
Both the parties adduced their oral evidences. Eight
witnesses were examined by the plaintiff while 14 witnesses
have been examined by the defendant.
11. It is vehemently submitted by the learned
counsel for the appellants that learned lower appellate court
did not consider the materials on record and there is non-
consideration of documentary evidence as well as oral
evidence of the parties independently by the learned lower
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Appellate Court. Further, the learned Appellate Court did not
formulate any point for determination of the appeal. The
learned Appellate Court has copied the findings given by the
learned Trial Court.
12. It is submitted that the appellants are in
possession of the suit land, in question, on the basis of
unregistered sale deed dated 21.07.1926 executed for the
consideration amount of Rs. 75/- by Rangu Gope in favour of
Nagina Devi, ancestor of the defendant and her name was
mutated in the revenue records of ex-landlord. In this regard,
zamindari receipts have also been filed vide Ext.-C to C2.
After vesting of zamindari, ground-rent receipt of the same
was issued by the State of Bihar which has been Exhibited as
B/B5. It is well settled principle of law that Section 17 of the
Indian Registration Act envisages that the sale deeds for less
than Rs. 100/- is optional for its registration and it is not
mandatory or compulsory for registration. Both the courts
have held that Exhibit-D is the unregistered sale deed. On this
ground, the claim of the appellants was disbelieved by both
the courts below.
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13. Learned counsel for the defendant/appellants
further submits that the judgment and decree of the learned
lower Appellate Court did not discuss or decide any question
of facts and law involved in the case. The learned appellate
court only copied the same as held by the learned Trial Court.
The entire approach of the Appellate Court was vitiated by
pre-conceived mind that the finding recorded by the Trial
Court was simpliciter and affirmed the judgment and decree
of the Trial Court. Reliance has been placed by the learned
counsel for the appellants in the case of Janardhan
Narasimha Nayak vs Balwant Venaktesh Kulkarni & Anr.
reported in (2007) 9 SCC 658.
14. It is also submitted that the lower Appellate
Court below failed to comply the mandatory provision of
Order XLI Rule 31 C.P.C. The court of first appeal must
record its finding only after dealing with all issues of law as
well as facts and the evidence oral as well as documentary led
by the parties. The first appellate court must display conscious
application of mind and record findings supported by the
reasons on all issues and contentions in view of the scope and
powers conferred on it under Section 96 read with Order XLI
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Rule 31 C.P.C., It is apparent from the Appellate Court’s
judgment that the appellate court has not discussed any issue
thereby causing prejudice to the appellants whose valuable
right to prosecute the first appeal on facts and law was
adversely affected which, in turn, deprived for hearing in the
appeal in accordance with law. Therefore, non-compliance of
the requirement of Order XLI Rule 31 C.P.C. leads to
infirmity in the judgment of the first appellate court.
15. On the other hand learned counsel for the
plaintiff/respondent has submitted that the Appellate Court
had considered and discussed the entire judgment of Trial
Court as finding recorded by the Trial Court was
comprehensive and it was not necessary for separate
discussion on finding as judgment was passed on findings of
facts. It is not necessary to record separate reasons on each
point. Reliance has been placed in the case of Parmanand
Yadav & Anr. Vs Jagdeo Yadav & Ors. reported in (2014) 3
PLJR 827 and submitted that concurrent finding of facts,
however, erroneous cannot be disturbed in the Second Appeal.
16. It is vehemently submitted by the learned
counsel for the respondent that the Trial Court came to
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conclusion that in support of genealogical table the witnesses
produced by both the parties were neither family members nor
neighbours or a person having special means of knowledge
and, therefore, Trial Court had taken into consideration
Exhibit-1, which is Chakbandi Khatiyan in which the plaintiff
and defendant were shown from same branch having equal
share. This document was neither disputed nor disbelieved by
the defendant, therefore, on the basis of Exhibit-1, the Trial
Court came to the conclusion that genealogical table given by
the plaintiff was correct. This finding has been affirmed by the
lower Appellate Court.
17. Learned Trial Court upon determination of Issue
Nos. 6 and 7, held that there was no any document for earlier
partition between the parties. The defendant had only stated
that Rangu Gope had sold the land in favour of Nagina Devi
having value of Rs. 75/- (Ext.-D). The defendant produced
three zamindari receipts and all the three zamindari receipts
were disbelieved on the basis of contradictory evidence by the
defendant itself. This finding has also been affirmed by the
lower Appellate Court.
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18. Learned counsel for the plaintiff/respondent
relied upon Section 54 of the Transfer of Property Act which
envisaged that sale of immovable property of value less than
Rs. 100/- could be made only either by registered instrument
or by delivery of possession and in case of delivery of
possession, delivery must be actual at the time of sale. Mere
constructive delivery of possession is not sufficient for the
purpose of this section. The factum of possession has not been
proved by the defendant. The Trial Court has rightly came to
the conclusion that the plaintiff is entitled for partition of his
half share which was affirmed by the learned appellate court
below.
19. The object of Rule 31 of Order XLI C.P.C. is to
afford the parties opportunity of knowing and understanding
the ground of decision to enable the exercise the right of
Second Appeal and to enable the High Court in Second
Appeal to judge whether the lower Appellate Court properly
appreciated and decided the case when the first appellate
court agreed with the views of the Trial Court on evidence, it
need not restate effect of evidence or reiterate the reasons
given by the Trial Court. This view has been taken by the
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Hon’ble Gauhati High Court in the case of Gopendra
Goswami & Ors. vs. Haradhan Das & Ors. reported in AIR
2009 Guwahati 41. It is submitted that the learned Appellate
Court substantially compiled with the provision of Order XLI
Rule 11 C.P.C.. It is further submitted that both the courts
have considered all the aspects of the matter and rightly
decreed the suit of the plaintiff/respondent.
20. On analyzing the materials on record as well as
impugned judgments, this Court finds that the learned
Appellate Court below has given its finding in paragraph nos.
10, 11, 12 and 13. The discussion in the aforesaid paragraphs
as well as discussions of the evidences adduced by the
plaintiff/respondent and defendant/appellants are only copy-
paste of the findings recorded by the Trial Court in paragraph
nos. 8, 9, 10 and 11 of its judgment. There is no application of
mind by the learned Appellate Court. The judgment of the first
Appellate Court has to set out points for determination, record
the decision thereon and give it own reasons. Even when the
first Appellate Court affirms the judgment of Trial Court, it is
required to comply with the requirement of Order XLI Rule
31 C.P.C. and non-observance of this requirement leads to
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infirmity in the judgment of first appellate court. This view
has been taken by the Apex Court in the case of P.V. Nagesh
& Anr. vs. H.V. Sreenivasa Murthy reported in (2010) 3 SCC
530. The appeal before the lower appellate Court involved
both disputed question of law and facts. The Appellate Court
without examining of any of these aspects has dismissed the
appeal by a cryptic order. The learned lower appellate court
below has neither re-appreciated the evidence of the parties
nor it has passed a reasoned judgment. The court of appeal
below has failed to follow the provision of Order XLI Rule 31
C.P.C. while deciding the appeal. Moreover, the question of
registration of unregistered sale deed less than value of Rs.
100/- is optional and is not mandatory for its registration and
the same is prescribed in case of Section 54 of the Transfer of
Property Act. Even this question has not been examined in its
proper perspective. This Court has relied upon a decision of
the Apex Court in the case of Malluru Mallappa (Dead)
Through Legal Representatives vs Kuruvathappa & Ors.
reported in (2020) 4 SCC 313, wherein the Hon’ble Apex
Court in paragraph nos. 15 has held as follows:-
Patna High Court SA No.424 of 2019 dt.15-05-2025
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from original decrees. Among the various rules,
Rule 31 mandates that the judgment of the
appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled.
4. The appellate court has jurisdiction
to reverse or affirm the findings of the trial court.
The first appeal is a valuable right of the parties
and unless restricted by law, the whole case is
therein open for rehearing both on questions of
fact and law. The judgment of the appellate court
must, therefore, reflect its conscious application
of mind and record findings supported by
reasons, on all the issues arising along with the
contentions put forth, and pressed by the parties
for decision of the appellate court. Sitting as a
court of first appeal, it was the duty of the High
Court [H.V. Sreenivasa Murthy v. B.V. Nagesha,
2008 SCC OnLine Kar 837] to deal with all the
issues and the evidence led by the parties before
recording its findings. The first appeal is a
valuable right and the parties have a right to be
heard both on questions of law and on facts and
Patna High Court SA No.424 of 2019 dt.15-05-2025
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the judgment in the first appeal must address
itself to all the issues of law and fact and decide it
by giving reasons in support of the findings.”
21. In the light of the narrative and discussions
(supra), there can be no doubt that the learned lower appellate
court erred and was not justified in dismissing the appeal of
the defendant.
22. In the aforesaid facts and circumstances of the
case, the substantial questions of law formulated are
answered in favour of the appellants. Consequently, the
judgment of lower appellate court dated 20.06.2019 passed in
Partition Title Appeal No. 18 of 2008/115 of 2018 by the
Additional District Judge-III, Aurangabad is set aside and the
appeal is remanded to the lower appellate court to decide the
appeal afresh in accordance with law. Learned Appellate
Court is directed to dispose of the appeal, preferably, within a
period of six months from the date of receipt of a copy of this
judgment.
23. In the result, the appeal succeeds and is
accordingly, allowed.
24. All the contentions of the parties are left open.
There will be no order as to costs.
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25. Pending interlocutory applications, if any, shall
stand disposed of.
(Khatim Reza, J)
prabhat/-
AFR/NAFR AFR CAV DATE 11.11.2024 Uploading Date 18.05.2025 Transmission N/A Date
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