Smt. Janak Nandani Devi v. Smt. Rekha Devi

IN THE HIGH COURT OF JUDICATURE AT PATNA

FIRST APPEAL No. 527 of 1997 ====================================================== 1.1. Rakesh Kumar Singh Son of Late Dhrubdeo Singh, Resident of VillageBhaisahi, P.S.-Majhagarh, District-Gopalganj. 1.2. Alka Kumari, Wife of Late Rajesh Kumar, Resident of Village-Bhaisahi, P.S.-Majhagarh, District-Gopalganj.

1.3. Anal Pushpa, son of Late Rajesh Kumar, Resident of Village-Bhaisahi, P.S.- Majhagarh, District-Gopalganj.

1.4. Damin Vagish, daughter of Late Rajesh Kumar, Resident of VillageBhaisahi, P.S.-Majhagarh, District-Gopalganj. 1.5. Subhangi Vagish, daughter of Late Rajesh Kumar, Resident of VillageBhaisahi, P.S.-Majhagarh, District-Gopalganj. 1.6. Smt. Bharti Sinha, daughter of Late Dhrubdeo Singh and wife of Kunwar Rajeev Kumar, Resident of Village-Bakhraur, P.S.-Barauli, DistrictGopalganj. 2.

Smt. Urmila Devi, Wife of Sri Santosh Kumar Singh, resident of VillageBakhraur Panchapatiya, P.S.-Barauli, District-Gopalganj. At present resident of Village-Machhargawa, P.S.-Kotwa, District-East Champaran, Motihari. 3.

Smt. Subhadra Devi, wife of Sri Suresh Kumar Singh, resident of VillageMahadeva, P.S.-Raxaul, District-East Champaran (Motihari). At present resident of Village-Machhargawa, P.S.-Kotwa, District-East Champaran, Motihari.

... ... Appellants

Versus

1.

Smt. Rekha Devi Wife of Sri Kanhaiya Mishra, resident of Village-Sarsaiya, P.S.-Bhagwanpur, District-Siwan. At present resident of VillageMachhargawa, P.O.-Machharwa, P.S.-Kotwa, District-East Champaran. 2.

Smt. Asha Devi, Wife of Sri Tripurari Kumar Singh, resident of VillagePaharpur, P.O.-Paharpur, District-East Champaran. At present resident of Village-Machhargawa, P.O.-Machharwa, P.S.-Kotwa, District-East Champaran.

... ... Respondents ====================================================== Appearance :

For the Appellants :

Mr. Nawal Kishore Singh, Advocate For the Respondents :

Mr. Dronacharya, Sr. Advocate Mr. Mrigendra Kumar, Advocate Mr. Ram Shankar Kumar, Advocate

2/47 ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL JUDGMENT Date : 22-09-2025 This first appeal has been filed by the appellants / original plaintiffs against the judgment dated 21.07.1997 and decree dated 04.08.1997 passed by the Sub Judge, East Champaran, Motihari, in Partition Suit No.191 of 1981, whereby the aforesaid partition suit has been dismissed on contest on the ground of limitation and defect of party. 2.

During the pendency of this appeal, the original appellant / plaintiff namely, Janak Nandani Devi died and vide order dated 29.03.2018, a coordinate Bench of this Court allowed Interlocutory Application no.2188 of 2018 for substitution of legal heirs of the deceased-appellant and accordingly, they are on record. Further, interlocutory application no.04 of 2023 filed for substituting the legal heirs of respondent no.3 namely, Girija Kuer was allowed vide order dated 19.06.2023 and accordingly, they are on record. 3.

The facts, as culled out from the records of the case, are that one Chandra Gokhula Singh passed away in a road accident on 16.06.1979 leaving behind his two wives namely, Bisham Devi and Girija Kuer and five daughters. The admitted genealogical table of Chandra Gokhula Singh is on

3/47 record.

4.

When the State Government enacted the Bihar Land Reforms (Fixation and of Surplus Land) Act, 1961 to acquire surplus land from big land owners, the aforesaid late Chandra Gokhula Singh, who held substantive landed properties executed three deeds of gift, all dated 07.09.1962 in favour of his first wife namely, Bisham Devi, second wife namely, Girija Kuer and daughter namely, Rekha Devi.

5.

Thereafter, the State Government initiated a ceiling proceeding vide L.C. Case No.297 of 1976-77 against the aforesaid Chandra Gokhula Singh. In the aforesaid proceeding, Chandra Gokhula Singh voluntarily declared some of his land surplus under section 15 of the 1961 Act. During the pendency of the aforesaid proceeding, said Chandra Gokhula Singh died on 16.06.1979 in a road accident but his legal representatives were not brought on record and without giving an opportunity of being heard an adverse order was passed in the said proceeding, which came to be challenged in C.W.J.C. No.2418 of 1978 before this Court. This Court vide order dated 16.04.1982 remitted the matter for re-consideration. 6.

After remand, L.C. Case No.4 of 1982-83 was initiated against the wives and daughters of said Chandra

4/47 Gokhula Singh before the Additional Collector, East Champaran. In the said proceedings, after hearing the parties, the Additional Collector vide order dated 26.07.1983 allotted seven units of land to the family members of the original land owner but rejected their claim with regard to the aforesaid three gift deeds dated 07.09.1962 executed by Chandra Gokhula Singh in favour of his two wives and one daughter. The Additional Collector also rejected the claim of Girija Kuer regarding self-acquisition of some lands and directed to include such lands in the seven units admissible to them. Subsequently, the aforesaid order of the Additional Collector was challenged by the revenue officials by preferring Revenue Appeal No.131 of 1983-84 before the Collector, East Champaran, which came to be allowed vide order dated 29.10.

1984 and the order of the Additional Collector was set aside. In the said order, the Collector reduced the units allotted to the two widows of Chandra Gokhula Singh from two units to one unit. Being aggrieved by the order of the Collector, the legal representatives of late Chandra Gokhula Singh filed an appeal under section 32 of the 1961 Act, before the Board of Revenue.

5/47 under section 10(3) of the 1961 Act. Subsequently, the legal representatives of late Chandra Gokhula Singh preferred a writ petition viz. C.W.J.C. No.1776 of 1986 before this Court unsuccessfully.

7.

Finally, the Collector, East Champaran, again heard the matter and vide order dated 16.06.1987 allowed the revenue appeal no.131 of 1983-84 and thereby allowed one unit each to the two widows and five daughter of Chandra Gokhula Singh i.e. seven units in all to them. However, the Collector rejected the claim regarding execution of three gift deeds dated 07.09.1962 executed by late Chandra Gokhula Singh as well as the claim of stridhan property of Girija Kuer, but the transfer made by the original land owner to a local high school was exempted from the land possessed by the family. The Collector had further ordered that the lands included in the aforesaid three gift deeds be adjusted in the units admissible to the family. 8.

After the allotment of the aforesaid seven units which was published in the Gazette, the remaining lands of the original land owner by virtue of the 1961 Act, were declared surplus land and were accordingly, acquired by the Government, which was later distributed among the landless persons. 9.

Thereafter, the legal heirs of the original land

6/47 owner Chandra Gokhula Singh filed a partition suit vide Partition Suit No.191 of 1981 / 128 of 1997 in the Court of learned Sub Judge, East Champaran, Motihari. The lands covered under the aforementioned seven units is the subject matter of the suit filed for partition which was fully described in Schedule 1 and 2 of the plaint and the plaintiffs therein have claimed 7/12 share in the entire properties movable and immovable 10.

It is the case of the appellants / original plaintiffs that the original land owner Chandra Gokhula Singh had executed three gift deeds in favour of his two wives and one daughter namely, Rekha Devi which were executed only with a view to save the lands from the rigors of the land ceiling proceeding. It was the specific submission of the original plaintiffs that the donees never came in possession of the lands gifted to them and therefore, the aforesaid three gift deeds are farzi as they were never acted upon. As a consequence, the lands were never actually given to the donees and the same remained under the possessions of the original land owner. 11.

It was the further case of the appellant / original plaintiffs that the original deeds of gift always remained in the custody of the doner i.e. original land owner and the

7/47 plaintiffs came to know about the aforesaid deed only in October, 1980 and it was finally decided by the Revenue Court in the Ceiling Act proceeding that the aforesaid three deeds of gift are farzi and inoperative. Further, the suit property described in schedule 1 and 2 of the plaint i.e. immovable and movable properties are joint and the same are to be divided among the legal heirs of original land owner. 12.

In the partition suit, it was the case of the contesting defendants that the deeds of gift executed by the original land owner namely, Chandra Gokhula Singh in favour of his two wives and one daughter are valid, genuine and operative and the same were executed during the exemption period for the purpose of land ceiling proceeding. The further case of the contesting defendants is that as per the aforesaid deeds of gift, the donee came in possession of the lands. The further case of the contesting defendants is that the lands in Schedule 4 of the written statement were given to Girja Devi, defendant no. 4, by her husband and the lands under Schedule 5 of the written statement are self acquired properties as stridhan of Girija Devi, defendant no. 4. Further case of the contesting defendants was that lands in Schedule 6 are the surplus lands declared under the ceiling proceedings.

8/47 13.

Further case of the contesting defendants was that there was an 'arbitration' with respect to the suit properties in which the panches divided most of the aforesaid suit properties among the legal heirs of Chandra Gokhula Singh and accordingly, the legal heirs of the original land owner have dealt with the properties of their share. It was also asserted that some of the movable properties and immovable properties given in the plaint are not existing and they were either disposed of or declared surplus land or the original owner Chandra Gokhula Singh had voluntarily surrendered the same to the Government. 14.

In the proceeding of the partition suit, the defendant no.2 namely, Asha Devi had also filed separate written statement dated 15.01.1993 wherein she had supported the case of the original plaintiffs and accordingly, she claimed her share in the suit properties.

15.

The original defendant no.3, who was the first wife of original land owner did not file any written statement in the said partition suit.

16.

After considering the pleadings of the parties, the trial court had framed all together nine issues, which are as under :- "i. Is the suit as framed maintainable ?

9/47 ii. Whether the plaintiffs have got cause of action and right to sue ?

iii. Whether the 3 deeds of gift dated 07.09.1962 executed by Chandra Gokula Singh in favour of defendant nos.1, 3 and 4 are valid, genuine and operative in respect of lands in schedule 1, 2 and 3 of the written statement of the defendants no.1 and 4 ? .

iv. Whether the lands detailed in schedule 5 of the written statement of the defendant no. 1 & 4 are stridhan of defendant no.4 and as such, not partable ?

v. Whether the properties detailed in Schedule 4 of the written statement of the defendant no. 1 and 4 was given to the defendant no.4 by family arrangement and her title and possession perfected by adverse possession and ouster ?

vi. Is the suit bad for defect of parties ?

vii. Whether some of the properties under partition have been partitioned by arbitrator and the plaintiffs had sold any of those

10/47 properties ?

viii. Whether the plaintiffs are entitled for decree for partition if so, in which properties and to what extent ?

ix. to what relief or reliefs the plaintiffs are entitled to?

17.

On behalf of the appellants / original plaintiffs all together 22 witnesses were examined, which are as under :- P.W.-01 Dhrub Deo Narayan Prasad P.W.-02 Binda Rai P.W.-03 Ram Sudist Prasad P.W.-04 Baban Singh P.W.-05 Kanti Singh P.W.-06 Anand Bihari Thakur P.W.-07 Sakal Deo Singh P.W.-08 Tarkeshwer Prasad P.W.-09 Bidyanand Tiwari P.W.-10 Sheo Mangal Prasad P.W.-11 Braj Kishore Singh P.W.-12 Rajeshwer Singh P.W.-13 Bhunesher Prasad P.W.-14 Pt. Sheo Sharan Pandey P.W.-15 Nurul Ain P.W.-16 Gokhul Singh P.W.-17 Lalita Prasad P.W.-18 Braj Kishore Prasad P.W.-19 Dhrub Deo Singh P.W.-20 Raju Kumar Singh

11/47 P.W.-21 Raghunath Singh P.W.-22 Urmila Dev @ Urmila Singh 18.

The following documents were exhibited on behalf of the appellants / original plaintiffs:- Ext.1 to 1/g Parwana Receipts Ext.2 to 2/s Rent Receipts Ext.3 Summon Ext.4 Signature of witness on Summon Ext.5 C.C. of sale deed executed by Girija Devi in favour of Akhilesh Pd. Rai , dt.07.04.1972 Ext.5/a C.C. of sale deed executed by Smt. Girija Devi in favour of Akhilesh , dt.07.04.1972 Ext.6 Deed of gift dt.07.09.1962 executed by Chandra Gokhula Singh in favour of Dulhin Bishram Devi Ext.6/a Deed of gift dt.07.09.1962 executed by Chandra Gokhula Singh in favour of Rekha Devi Ext.6/b Deed of gift dt.07.09.1962 executed by Chandra Gokhula Singh in favour of Girija Devi Ext.7 to 7/b Three books of gazette Ext.8 C.C. of partition paper case no. 21 of 1993 Ext.9 Sale deed dated 02.11.1987 Ext.10 Order dated 16.06.1987 of collector in Rev.

Appeal 131 of 83-84 19.

On behalf of the defendants, the following witnesses were examined, which were as follows:- D.W.- 01 Bachu Sah D.W.- 02 Hira Sah D.W.- 03 Sheo Pd. Singh

12/47 D.W.- 04 Nand kisheo Singh D.W.- 05 Ram Udar Singh D.W.- 06 Rameshwar Prasad D.W.- 07 Asha Singh D.W.- 08 Laxmi Narayan Pandey D.W.- 09 Ramanand Prasad D.W.- 10 Ramadhar Singh D.W.- 11 Gouri Shankar Singh D.W.- 12 Baidyanath Prasad D.W.- 13 Satya Narayan Prasad D.W.- 14 Mahendra Rao D.W.- 15 Patasnath Singh D.W.- 16 Md. Idris D.W.- 17 Ravindra Singh D.W.- 18 Bagar Rai D.W.- 19 Sitaram Tiwary D.W.- 20 Shankar Singh D.W.- 21 Dharamnath Tiwary D.W.- 22 Magister Sah D.W.- 23 Baidyanath Mishra D.W.- 24 Surndra Prasad D.W. 25 Bipin Ram D.W. 26 Anirudh Singh D.W.27 Mahendra Das D.W. 28 Anutha Sharma D.W.29 Jagat Narayan D.W.30 Sri Narayan Prasad D.W.31 Uma Kant Mishra D.W.32 Surendra Pd. Choudhry D.W.33.

Thakur Prasad D.W.34 Ratindra Singh D.W.35 Durga Mishra D.W.36 Amrendra Mishra D.W.37 Girja Kuwer (defendant no.4) D.W.38 Rekha Devi (defendant no.1) 20.

The following documents were exhibited on behalf of the defendant:- Ext.-A Registered sale deed executed by Suresh Prasad Singh in favour of Jamuna Singh and others.

13/47 Ext.-B Deed of gift executed by Jagdhari Singh on 02.11.1977 in favour of Suresh Prasad Singh.

Exh - B/1 Another deed of gift executed on 18.01.1979 by Gajdhari Singh in favour of Suresh Prasad Singh.

Ext.- B/2 Another sale deed executed on 18.11.1979 by Jagdhari Singh in favour of Sheosharan Sao.

Ext.B/3 Sale deed executed by Suresh Prasad Singh on 08.11.1977 in favour of Sheosharan Sao.

Ext.B/4 Sale deed executed by Suresh Prasad Singh in favour of Sheosharan Sao.

Ext.B/5 and B/7 Rent receipts.

Ext.-C Deed of gift executed by Jagdhari Singh on 04.11.1976 in favour of Suresh Prasad Singh.

Ext.-C/1 Signature of Suresh Narain Singh on the said Deed of Gift.

Ext. C/2 Signature of Radheshyam.

Ext. C/3 Signature of witness Bhola Prasad on the said Deed of Gift.

21.

Based on the testimonies of the witnesses and the documentary evidences adduced during the course of the suit, the trial court first took up the issue no.vii i.e., whether some of the properties under partition have been partitioned by the arbitrator and the plaintiffs have sold any of those properties. The aforesaid issue no. vii was decided against the contesting defendant nos.1 and 4. While deciding this issue against the contesting defendants nos. 1 and 4, the trial court had noted the

14/47 statements made by the arbitrator (D.W.-5) namely, Ram Udar Singh, Advocate, who had stated that one Hedaytullah Khan, was also the arbitrator in the case and due to delay in partitioning the properties, this witness has stated that, the appointment of arbitrator was withdrawn by the Court. This witness has further stated that only one movable property i.e. a tractor was sold and sale letter was executed by the panches and the amount so received was distributed among the parties. The trial court had finally concluded that there is nothing on the record to show which of the properties were divided by the arbitrator and which of the properties were allotted to the original plaintiffs and the original defendants.

Further, the defendants have also not produced any evidence either oral or documentary in respect of the aforesaid arbitration. The trial court has also noted that Defendant no.1 who had deposed as D.W-38 and defendant no.4, who had as D.W.-37 had also failed to make any statement regarding properties being partitioned by the arbitrator. Thus, the trial court had concluded that there is nothing specific in this regard to believe that during the arbitration proceeding the properties were divided among the parties and thereafter the original plaintiffs sold or dealt with any of the properties allotted in their share.

15/47 trail court decided the aforesaid issue no. vii against defendant nos. 1 and 4.

22.

Thereafter, the trial court took up the issue no.v i.e. whether the properties detailed in scheduled 4 of the written statement of defendant nos. 1 and 4 were given to the defendant no.4 by family arrangement and her title and possession was perfected by adverse possession and ouster. While deciding the aforesaid issue, the trial court noted that the defendant nos. 1 and 4 have produced a khesta family arrangement dated 11.12.1977. It was the case of the defendant no.1 and 4 that the original land owner Chandra Gokhula Singh had given the lands detailed in Schedule 4 to his second wife Girija Devi (defendant no.4). However, the aforesaid family arrangement and the signature appearing on it were disputed by the plaintiffs.

While deciding the aforesaid issue, the trial court noted the fact that the disputed signature of the original land owner i.e. Chandra Gokhula Singh on the khesta family arrangement dated 11.12.1977 was never examined by a handwriting expert and the aforesaid family arrangement, which is disputed by the plaintiffs has not been properly exhibited. The trial court, however, stated that since it was the case of defendant nos.

16/47 transferred under the family arrangement and the title of defendant no.4 was perfected owing to adverse possession. This proposition was categorically rejected by the trial court by stating that if it is expected that the land in question was given to the defendant no.4 under family arrangement made by her husband then the question of adverse possession does not arise rather the same will be treated as her own property. On the other hand, if the plea of defendant no.4 is accepted that she had perfected her title over the said land on the basis of adverse possession then it will also be presumed that the title over the land in question is of someone else and now in these circumstances for getting her title confirmed she will have to pay ad valoram court fee for the value of the same.

Therefore, the trial court was of the opinion that the contention of the defendant no.4 of gaining over title on the said land under schedule 4 could either be through the family arrangement or perfected under adverse possession but not both particularly, since the defendant no.4 had failed to mention the date on which the adverse possession had accrued. In conclusion, the trial court had noted that since the appellants/ original plaintiffs had not produced any witness on their behalf and further the defendant nos.

17/47 statements, there was nothing specific on record available to conclude that the property under schedule 4 was transferred under the khesta family arrangement to defendant no.4 and was therefore, under her exclusive title and possession. Accordingly, the issue no. v was decided against defendant no.4. 23.

Thereafter, the trial court decided issue no. iv i.e. whether the lands detailed in scheduled 5 of the written statement of the defendant nos. 1 and 4 are stridhan property of defendant no.4 and as such, the schedule 5 property being her self acquired property and therefore, not liable to partition. While deciding this issue, the trial court noted the admitted possession of the appellant / original plaintiff that the aforesaid property described in schedule 5 stands in the name of defendant no.4 Girija Devi as the sale deed dated 23.05.1960 which is exhibited as Exhibit- B-1/b was in her name which was executed by one Manna Kuwer and Sushila Kuwer. Admittedly, the defendant no.4 Girija Devi was married in the year 1954-55 and the aforesaid sale deed was executed on 23.05.1960. It was the case of defendant no.4 that the aforesaid property described under schedule 5 was her self-acquired property since the same was purchased by stridhan received during her muhdekhai after her marriage. On the other hand, the plaintiffs and defendant

18/47 no.2 have disputed the above contention and have stated that the land described under scheduled 5 was purchased by the original land owner Chandra Gokhula Singh in the name of his second wife i.e. defendant no.4 and so long as her husband was alive the aforesaid property remained in her possession and after his death the widows of Chandra Gokhula Singh and his daughters came in possession of the same. While deciding the aforesaid issue, the trial court noted the following aspects :- i.

Defendant no.4 had no personal property except the properties of her husband and at page no.2 of the statement of defendant no.4 she had admitted that her husband was a very wealthy man and had acquired hundreds of acres of land. Further at page no.4 she had admitted that her husband had about 500 bighas of land and that her husband was the only heir of his family. It was categorically noted that defendant no.4 had not uttered even a single word that at the time of purchase of the aforesaid land described under schedule 5, if she had any source of personal income.

19/47 ii. In the written statement, the defendant no.4 had not given any statement regarding her source of income and she had not even asserted that the aforesaid property was purchased by her from the money that she had obtained during muhdekhai at the time of her marriage rather, it is emphasized by the trial court that this fact has been stated by her during the course of her examination before the Pleader Commissioner. As such, the same is beyond her pleadings. The trial court was therefore, of the opinion that this fact was beyond the pleadings and cannot be legally taken into consideration. Moreover, the statements of defendant no.4 did not find any support from the statements of any of the witnesses examined on her behalf.

iii. The vendor of the aforesaid sale deed namely, Manna Kuwer and Sushila Kuwer were not examined.

iv. The defendant no.4 had not claimed that the land under a plea of benami transaction.

20/47 24.

Considering the aforesaid aspects of the matter, the trial court concluded that the lands in schedule 5 of the written statement is her self acquired property cannot be believed and as such, the aforesaid issue no.4 was decided against defendant no.4.

25.

Lastly, the trial court decided issue nos. i, ii, iii, vi, viii and ix together i.e. whether the suit as framed is maintainable; whether the plaintiffs have got a cause of action and right to sue; whether the three deeds of gift dated 07.09.1962 are valid, genuine and operative; is the suit bad for defect of parties and lastly, whether the plaintiffs are entitled to decree of partition and if so, in which properties and to what extent.

26.

While deciding these issue, the trial court has recorded that it is admitted fact that all the seven shareholders were allotted seven units, each 30 acres, vide Gazette dated 22.12.1989 on the basis of the order dated 16.01.1983 passed by the A.D.M., Motihari in Case No. 07/1973-74 (State vs. Mostt. Bisram Kuwer) and the remaining lands were declared surplus lands and acquired by the Government and thereafter, distributed to the landless persons and accordingly, purchas were issued in their favour. Thereafter, The trial court after

21/47 considering the admitted fact noted above and also the disputed fact regarding the execution of the aforesaid three deeds of gift dated 07.09.1962, has considered whether the deeds of gift was effectively delivered and had operational status or not. The trial court further noted that many plots under disputed three deeds of gift were voluntarily surrendered by the owner / doner of the lands and this fact alone creates shadow of doubt against the claim of defendant no.4 that the lands under the aforesaid three deeds of gift came in their possession and that the aforesaid deeds were valid and genuine. Under the law, for a gift to be operative, the essential ingredients are that the offer by the doner and the acceptance by donee and delivery of possession by doner to donee are necessary.

However, there was no evidence to show that there was an offer by the doner or that there was an acceptance by the donee and that there was delivery of possession by the doner to donee. There was only a bald statement in the written statement of defendant nos. 1 and 4 that the donee after having accepted the gift came in possession of the lands so gifted. The trial court, however, rejected the statement of the defendant nos.

22/47 offer, the question of gift does not arise. Accordingly, the trial court was of the opinion that legally the aforesaid deeds of gift cannot be said to be valid. It was further noted by the trial court that the deeds of gift had not been produced on behalf of the donee (defendant nos. 1 and 4) rather the same had been produced by the plaintiffs though it has been stated by the defendant nos. 1 and 4 that pursuant to the deeds of gift their names have been mutated in the revenue record and accordingly rent receipts have been issued in their favoiur and the defendant nos. 1 and 4 dealt with the said properties, in support of which, they have produced sale deeds dated 23.08.1971 and 28.04.1973 which were admittedly executed during the lifetime of Chandra Gokhula Singh. The trial court further noted the fact that the statement of the purchaser, who purchased the lands of defendant no.4, does not show that whether the lands purchased by him were actually from the lands under the deeds of gift dated 07.09.1962.

27.

Thereafter, the trial court observed that it was an admitted case of the parties that the original land owner Chandra Gokhula Singh had volunatarily surrendered some of the lands covered under the aforesaid deeds of gift, however, there was no evidence on record to show that the donee

23/47 (defendant nos. 1 and 4) had made any objection to the same. Further, some of the lands covered under the deeds of gift were acquired by the Government for which the compensation was not paid to the donee rather the same was paid to Chandra Gokhula Singh, the original land owner. The trial court further noted that from the statement of Asha Devi, who is the daughter of defendant no.4, it was clear that the aforesaid deeds of gift were farzi and the donees (defendant nos. 1 and 4) had never come in possession of the lands covered under the deeds of gift. Further, vide order dated 16.07.1983 the Additional District Magistrate, had included the lands under the deeds of gift to the units allotted in their names, therefore, the two wives and five daughter were altogether allotted seven separate units and whatever lands were left after acquisition by the Government and surrender by the original land owner were also included in their allotted units.

28.

The trial court also noted that on the basis of the aforesaid order of the Additional District Magistrate, the Government has published the final Gazette on 22.12.1989 wherein out of the total lands of the original land owner Chandra Gokhula Singh, 210 acres of land had been allotted to his seven legal heirs in the ratio of 30 acres per unit and the

24/47 remaining lands were declared surplus. Further, there was no evidence to show that the aforesaid Gazette notification of the Government was ever challenged by the legal heirs of the original land owner.

29.

Thereafter, the trial court examined the statements of various witnesses and ultimately came to the conclusion that the aforesaid deeds of gift executed by Chandra Gokhula Singh in favour of his two wives i.e. defendant nos. 3 and 4 and one daughter i.e. defendant no.1 are not valid, genuine and operative.

30.

After deciding the validity of the deeds of gift, the trial court categorically noted that it was an admitted case of the plaintiffs that they had knowledge about the aforesaid deeds from the date of its execution. P.W.-19 (Dhrubdeo Singh), who was the husband of the plaintiff no.1, Janak Nandini Devi (original appellant no.1), had stated in his statement at paragraph nos.29, 30, 31 & 32 that the original land owner, who was his father-in-law, had executed the deeds of gift in favour of his two wives and one daughter in his presence since he was the son-in-law of the original land owner- Chandra Gokhula Prasad. This witness further stated that the original land owner had gifted 21 bighas and 11 kathas of land to his

25/47 first wife namely, Bisram Kuwer (defendant no.3), 29 bighas and 9 kathas to his second wife namely, Girja Kuwer (defendant no.4) and 33 bighas and 3 dhurs to his daughter namely, Rekha Devi (defendant no.1). Therefore, the court noted that the aforesaid statement of this witness falsifies the plea of the plaintiffs in respect of cause of action that they came to know about the aforesaid deeds of gift in October, 1980 and as such, the plea of cause of action taken by the plaintiffs is falsified and further, the trial court noted that the plaintiffs not only had knowledge of the aforesaid deeds of gift but have rather challenged the validity and genuineness of the same after lapse of 30 years. The trial court adverting to the Limitation Act, 1963 under which, the period of limitation for declaration or cancellation of any instrument or document or decree is only 3 years. Thus, on the basis of aforementioned legal aspect, the suit was barred by limitation under Article 58 and 59 of the Limitation Act, 1963.

31.

Thereafter, the trial court noted the fact that the original land owner namely, Chandra Gokhula Singh surrendered many plots, as surplus land, to the Government during land ceiling proceeding, which were described in schedule 6 of the written statement of defendant nos. 1 and 4,

26/47 which included many plots mentioned under the aforesaid deeds of gift. Based on the documents exhibited, the trial court noted that certain plots which were declared surplus by the Government or those that were voluntarily surrendered or that the Government had acquired were also included in the present partition suit. The plaintiffs sought partition of the lands, some of which have either been voluntarily surrendered by the doner Chandra Gokhula Singh to the Government and pursuant to which, the land had been given to the landless persons and thereafter purchas were issued. Further, plaintiffs had also sought partition over the lands which the Government had already acquired or the same were declared as surplus land by the Government. Therefore, the purcha holders and the State were necessary parties in the partition suit but they have not been made party to the partition suit. Even though the deeds of gift were found to be invalid, inoperative, no order of partition can be passed in suit in absence of necessary parties i.e. State of Bihar and the purcha holders.

32.

Ultimately, the trial court dismissed the suit on contest on the ground of limitation and defect of party. Being aggrieved by the same, the present appeal has been filed by the appellants.

27/47 33.

The learned counsel for the appellants /original plaintiffs have submitted that the trial court without framing a specific question on the point of limitation has recorded a finding that the claim of the plaintiffs regarding the validity of the gift is barred by limitation. It is therefore the contention of the learned counsel for the appellants / original plaintiffs that despite settling the six material issues, i.e., issues no. iii, iv, v, vi and vii in favour of the plaintiffs therein, the trial court had dismissed the suit on the hyper-technical grounds that the limitation for getting a deed set aside is three years only and the plaintiffs despite having knowledge of the aforesaid deeds of gift had not acted within the said period of limitation. 34.

Learned counsel for the appellants has further argued that it is a well established principle of law when a document is found to be inoperative i.e. which was not acted upon then it falls within the category of void documents and no formal declaration is therefore required to get rid of the same. It is emphasized that the same can be declared void incidentally by the Civil Court while deciding any issue at any moment. 35.

Adverting Section 43 of the Bihar Land Ceiling Act, 1961, learned counsel for the appellants / original plaintiffs has contended that the aforesaid provision of law bars

28/47 civil court from entertaining any lis, for which a finding has already been recorded in the ceiling proceeding. In support of this contention, he has placed reliance on a decision of the Hon'ble Supreme Court in the case of Dolhin Padharo Devi vs. Indrajit Tiwari reported as 2008 (1) PLJR (SC) 267. 36.

According to learned counsel for the appellants / original plaintiffs, the rejection of partition suit on the ground of non-joinder of necessary party is also not sustainable since the details of lands which was sought to be partitioned was detailed under schedule -1 of the plaint. It is categorically submitted by learned counsel for the appellants that the land described under schedule 1 covered the seven units, 30 acres each, released in favour of the parties. 37.

According to the learned counsel for the appellants, in view of the objections raised in the written statement of the contesting defendant no.1, the plaintiffs had filed an amendment petition in the partition suit to amend schedule 1, which was allowed vide order dated 05.03.1992 and accordingly, altogether 17.06 acres of land were deleted while 51.75 acres of land was added to the aforesaid schedule I. Moreover, there is no material on record to show that the revenue officials issued purcha regarding any land mentioned in

29/47 schedule 1 of the plaint.

38.

I have considered the submission of the parties and perused the materials available on record including the original trial court records.

39.

Upon the perusal of the records of the case, it transpires that the original land owner i.e. Chandra Gokhula Singh had executed two gift deeds in favour of his two wives and one daughter. The trial court had dismissed the suit for partition on the ground that the aforesaid suit is barred by limitation and suffers from non-joinder of necessary parties. 40.

It has been argued on behalf of the appellants / original plaintiffs that once the revenue authoritie had held that the two gift deeds are inoperative and farzi, it was not required on the part of the appellants/original plaintiffs to approach the competent civil court seeking declaration against the aforesaid two gift deeds. It is also argued that section 43 castes a bar on the suits for civil court to decide.

41.

In this regard, it is apposite to refer to a judgment of this Court in Brij Nandan Mahto vs. Smt. Ranjoo Devi & Ors. reported as 2013 SCC OnLine Pat 175. The relevant portion of the aforesaid judgment read as under :- "A Division Bench of this Court in a case reported in 1987 PLJR NOC 21 (Dhaka Singh v.

30/47 Baleshwar Prasad Singh), while noticing the views expressed in the judgment rendered in the case of Narendra Kumar Ghosh (supra) which was affirmed in a Full Bench judgment reported in 1985 PLJR 554 (Jugal Kishore Singh v. State of Bihar), has proceeded to hold in paragraph 12 of the judgment that suit which is purely of civil nature involving questions of title and possession, is not barred under Section 43 of the Act. Similar view has been expressed in context with similar bar available under the Bihar Consolidation of holdings and Prevention of fragmentation Act, 1956 by another Full Bench of this Court in a judgment reported in 1989 PLJR 1203 (Kalika Kuar v. State).

There thus remains no dispute on the issue that Section 43 of the Act cannot act as a bar to suits raising purely issues of title and possession" (emphasis supplied).

42.

Further, in another judgment delivered by this Court in the case of Shubhash Yadav & Ors. vs. Priyabrat Yadav & Ors. reported as 2014 SCC OnLine Pat 5443 it has been held as under:- Admittedly, in ceiling case, respondent No. 1 claimed his preemptory right whereas; in Title Suit No.107 of 2003, he has claimed for declaration of sale deed dated 11-01-2003 as null and void. It is not in dispute that no court, except civil court, can declare a document as null and void and therefore, ceiling authority

31/47 has got no jurisdiction to declare sale deed dated 11-01-2003 as null and void. Moreover, the execution of sale deed dated 11-01-2003 is not the subject matter of ceiling case and therefore, I do agree with the submissions of learned counsel for respondent No. 1 that the issues, involved in both the lis are quite different." (emphasis supplied) 43.

From reading of the aforesaid decisions, it is clear that no court, except civil court, can declare a document as null and void and the ceiling authority has no jurisdiction to declare a gift deed as null and void. Therefore, in the opinion of this Court, the submission on behalf of the appellants that since the ceiling authority had already declared the two gift deeds to be inoperative and farzi, there was no requirement for the appellants to approach the civil court to seek a declaration to the said effect is against the settled potion of law. 44.

Merely because the revenue/ceiling authorities had held that the aforesaid two gift deeds were inoperative and farzi could not result in a situation where the said gift deeds are deemed to be null and void. More so, because the proceedings under the Land Ceiling Act does not concern the validity of a gift deed which squarely falls within the plenary powers of the competent civil court, therefore, the

32/47 validity or genuineness of a gift deed could not have been decided in a proceeding under the land ceiling act. 45.

Further, the contention on behalf of the appellants/ original plaintiffs that it was not open for the civil court to re-adjudicate the validity of the gift deeds once the revenue/ceiling authority has already declared the same to be inoperative and farzi is in the teeth of the aforesaid two decisions, which have clarified the position of law. The appellants/original plaintiffs ought to have approached the competent civil court for declaration against the aforesaid gift deeds within limitation period.

46.

The next argument on behalf of the appellants is that the trial court without framing any issue on limitation had dismissed the suit on the ground of limitation. It is trite law that a civil suit can be dismissed as having been rendered time barred even when no specific issue regarding limitation was framed in the suit. The trial court had recorded that the aforesaid two gift deeds were inoperative and farzi, however, the learned trial court had refused the relief since the suit for partition was hopelessly barred by limitation. It is settled law that limitation only extinguishes remedy and does not affect the right itself.

33/47 47.

It would be apposite to refer a recent judgment of the Hon'ble Supreme Court rendered in the case of R. Nagaraj (dead) through Lrs. & Anr. vs. Rajmani & Ors. reported as 2025 SCC OnLine SC 762 wherein the Hon'ble Supreme Court has held as under:- "19. The object of framing an issue is to determine the material point of disputes between the parties, for the purpose of adjudication. Issues can be framed on a question of law or fact or a mixed question of law and fact. The decision on the issue settles the lis in favour of either of the parties. A distinct issue is to be formed when a material proposition of law or fact is affirmed by one party and denied by another. Also, there is no necessity to frame an issue, when the parties are not at dispute on a particular fact or law.

At times, despite pleadings, when a specific issue is not framed, but when both the parties to the lis have let in evidence and rendered their arguments on a point, the decision on which is intrinsically connected to the main issue, then the Court is bound to render a finding on the point of dispute before deciding the connected issue, one way or another. In that case, it becomes the duty of the Court to analyze the evidence before it and render a decision on all disputed questions of fact or law, directly or indirectly in issue, so as to put an end to the lis.

34/47 which action must be initiated. Its object is to provide a time or period, within which, the action has to be initiated. The object of the Act is not to destroy a vested right available in law but to prevent indefinite litigation and therefore, only prescribes a period for initiation of the litigation. This Court has described the object of the Limitation Act, 1963 in the following decisions:

(i) Bharat Barrel & Drum Mfg. Co. Ltd. v.

Employees State Insurance Corporation AIR 1972 SC 1935:

"7. ...... The object of the Statutes of Limitations is to compel a person to exercise his rights of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims.

While this is so, there are two aspects of the Statutes of Limitation the one concerns the extinguishment of the right if a claim or action is not commenced with a particular time and the other merely bar the claim without affecting the right which either remains merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation.

Where a statute prescribing the limitation extinguishes the right, it

35/47 affects substantive right while that which purely pertains to the commencement of action without touching the right is said to be procedural".

(ii) N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123;

"that the Limitation Act is based upon public policy which is used for fixing a life span of a legal remedy for the purpose of general welfare. It has been pointed out that the Law of Limitation are not only meant to destroy the rights of the parties but are meant to look to the parties who do not resort to the tactics but in general to seek remedy. It fixes the life span for legal injury suffered by the aggrieved person which has been enshrined in the maxim 'interest reipublicae ut sit finis litium'

which means the Law of Limitation is for general welfare and that the period is to be put into litigation and not meant to destroy the rights of the person or parties who are seeking remedy.

The idea with regards to this is that every legal remedy must be alive for a legislatively fixed period of time".

36/47

20. Limitation, as we generally know is a mixed question of fact and law. However, there is no hard and fast rule that every question of limitation is to be treated as a mixed question of fact and law. In cases, where the action is initiated after several years after the right to sue accrued, without any pleadings to explain the reasons for delay or as to when the fraud was discovered, the question of limitation is to be treated as a question of law. A recourse may be had to Order VI Rules 4 and 10 CPC, which mandates that specific particulars would have to be given in the pleadings.

Once such a plea is raised in the pleadings, then the burden lies on the person to prove that the delay was due to any plausible reason and it is always well within the knowledge of the other party to contend and prove that the opposite party had prior knowledge about the disputed fact and that his right to sue or defend had also accrued by that date. Even in the absence of specific pleadings regarding the limitation in the plaint or a plea of defense, there is a bounden duty on every civil Court to ascertain as to whether the lis has been initiated within the time prescribed under law, even if the parties to the lis had not raised any objections. This right flows from the mandate of Section 3 of the Limitation Act, 1963. A useful reference may be had to the judgment of this Court on this aspect, in V.M. Salgaocar and Bros. v.

37/47 held as follows:

"20. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.

21. This Court in Manindra Land & Building Corpn. Ltd. v. Bhutnath Banerjee [(1964) 3 SCR 495 : AIR 1964 SC 1336] held (AIR para 9):

"Section 3 of the Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation

38/47 Act applies, the subordinate court comes to an erroneous decision, it is open to the court in revision to interfere with that conclusion as that conclusion led the court to assume or not to assume the jurisdiction to proceed with the determination of that matter."

In cases, where the pleadings are silent, then it becomes the duty of the Court to ascertain from the evidence and the overall facts of the case, as pleaded by either party, and to render a finding on limitation where the question of limitation is to be treated as a question of law, since the Court cannot entertain frivolous or stale claims. It is also apropos to reiterate the settled position of law that a question of law can be raised at any stage.

21. We have in earlier paragraph discussed the object of framing the issues. We also held that there could be several points directly or indirectly connected with the main issue that has been framed. In such cases, when the larger issue that has been framed is wide enough to cover different points of disputes within it, there is no necessity to frame a specific issue on that aspect. Further, when the parties go to trial with the knowledge that a particular point is at lis, had full opportunity to let in evidence, they cannot later turn back to say that a specific issue was not framed. All that is required under law, is for the Court to render a

39/47 finding on the particular fact or law in dispute, on the facts of the case. However, we make it clear that such evidence, in the absence of pleadings, cannot permit either of the parties to make out a new case. It is pertinent to mention here that the Courts are vested with powers to go into the question of law, touching upon either the limitation or the jurisdiction, even if no plea is raised and not in cases, where facts have to be pleaded and evidence has to be let in. The Civil Procedure Code and the law of limitation, being procedural laws, meant to assist the Courts in the process of rendering justice, cannot curtail the power of the Courts to render justice. Procedural laws after all are handmaid of justice. What is to be seen is whether any irregularity arising from a failure to follow procedure has caused serious prejudice to the parties. It is not to be forgotten that the process of adjudication is to discern the truth.

21.1. It will be useful to refer to certain judgments of this Court on violation of procedural law, which are as follows:

(i) Sardar Amarjit Singh Kalra (Dead) by L.Rs. v. Pramod Gupta (Smt.) (Dead) by L.Rs. (2003) 3 SCC 272:

26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under

40/47 personal, property and other laws.

Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice........"

(ii) Kailash v. Nanhku (2005) 4 SCC 480 :

"28. All the Rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of Code of Civil Procedure or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v.

State of Bihar (1975) 1 SCC 774] are pertinent : (SCC p. 777, paras

41/47 5-6) The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist Rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence -- processual, as much as substantive.

29. In State of Punjab v. Shamlal Murari (1976) 1 SCC 719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that : (SCC p. 720) "Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the

42/47 handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In Ghanshyam Dass v.

Dominion of India (1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle."

(iii) Sugandhi (Dead) by LRs v. P. Rajkumar (2020) 10 SCC 706:

"9. It is often said that procedure is the handmaid of justice.

Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the

43/47 fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under Sub-rule (3)."

22. In the present case, the trial Court though had not framed a specific issue on "limitation", the same could very well fall under the broader issue. The question of limitation can be encompassed within the larger question determined by the First Appellate Court for determination. The failure of the trial Court and the First Appellate Court to formulate a separate issue, in the view of this Court, is not fatal to the judgment rendered by them and has not caused any prejudice to the parties. Further, the trial Court, in the performance of its duty, mandated under Section 3 of the Limitation Act, 1963, has taken up the question of limitation and upon perusal of the overall pleadings and evidence, has rightly decided the same.

Therefore, we do not agree with the decision of the High Court in remanding the matter to the trial Court, that too after this length of time, when all materials were available before it.

23. As already indicated above, the concurrent findings of the Courts below were sought to be

44/47 challenged before the High Court. It is a general rule that High Court will not interfere with the concurrent findings of the Courts below. In the present case, both the trial Court and the First Appellate Court, after detailed analysis of the oral and documentary evidence let-in by the parties, categorically held that the suit was hopelessly barred by limitation. We also find that the evidence produced would abundantly make it clear that Dasappa Gowdar and thereafter, Respondent Nos. 1 to 3 were well aware of the earlier proceedings and the decree passed in the first suit. The auction purchaser's title was confirmed by court orders, and subsequent transfers were properly registered and recorded.

Therefore, Respondent Nos. 1 to 3, who have knowingly slept over their right to challenge the sale and allowed further rights to flow, cannot later question the sale of larger extent of share in an unpartitioned property. We also do not find any plausible reasons for delay. It is reiterated at this juncture that limitation is a matter of statute and must be strictly enforced, more so when the earlier transaction or sale is well within the knowledge of the parties. This principle assumes greater significance in the present case, where the delay extends to seventeen years for filing the suit, despite the fact that they were arrayed as respondents/Judgment Debtors in the execution proceedings.

Furthermore, protection of bona fide purchasers

45/47 for value is a significant consideration, and any disturbance to their rights or titles after such a long period, would create uncertainty in property transactions and undermine the sanctity of court sale. Therefore, we are of the view that the High Court was not justified in remanding the matter to the trial Court for fresh trial solely with respect to the issue of limitation; and that, the Courts below have rightly held that the suit was barred by limitation and Respondent Nos. 1 to 3 are not entitled for any relief."

48.

In view of the aforesaid law laid down by the Hon'ble Supreme Court, it is clear that even if the trial Court did not frame a specific question with respect to limitation that in itself would not preclude the trial court from entering into and deciding the question of limitation.

49.

Secondly, the contention that the aforesaid two gift deeds having been already declared as inoperative and farzi by the revenue authorities / ceiling authorities acting under the land ceiling Act and therefore it was no longer open for the competent civil court to enter into the same, is merit-less. It is settled that ceiling authorities acting under the Land ceiling Act could not have decided whether the aforesaid gift deeds are operative or not. This question squarely falls within the jurisdiction of the competent Civil Court itself. Since the

46/47 competent Civil Court seized the question only when the suit was moved before it, therefore the question of limitation could not be circumvented merely by asserting that the gift deeds are already held to be inoperative and farzi earlier by the ceiling authorities since that was outside the scope of their jurisdiction. 50.

Therefore, in the considered opinion of this Court, there is no infirmity in the impugned judgment wherein the trial court on the one hand has held that the two gift deeds were inoperative and farzi but on the other hand had refused the reliefs as claimed by the original plaintiffs. 51.

Moreover, it appears that the original land owner i.e. Chandra Gokula Singh had consulted with his son-inlaw, who was the husband of the original plaintiff in the civil court, and therefore, it is apparent that the original plaintiffs had due knowledge about the execution and existence of the gift deeds and now after the passage of almost three decades the appellants/ original plaintiffs cannot turn around and seek remedies which was hopelessly barred by limitation. Therefore, the trial court has rightly refused the reliefs on the ground of limitation.

52.

It also appears that certain parcels of land which were acquired by the Government and subsequently

47/47 purchas were issued to the landless persons are subject matter of partition in the partition suit and as such, without impleading the aforesaid purcha holders, the partition suit also fails on the ground of non-joinder of necessary parties, which is duly recorded in the impugned judgment.

53.

For the foregoing reasons, I do not find any illegality and infirmity in the impugned judgment dated 21.07.1997 and decree dated 04.08.1997 passed by the Sub Judge, East Champaran, Motihari, in Partition Suit No.191 of 1981, by which the partition suit filed by the original plaintiffs/appellants has been dismissed. Accordingly, this first appeal is dismissed and the judgment and decree of the trial court is affirmed.

54.

Let the original records of the trial court be transmitted to the concerned Court below.

(Sandeep Kumar, J) pawan/- AFR/NAFR N.A.F.R.

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