GANGADHAR RAJWAR vs RAM PRASAD RAJWAR

Neutral Citation No. (2026:JHHC:31790)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 132 of 2023
Gangadhar Rajwar, aged about 63 years, son of Late Jagdish Rajwar,
resident of Village and P.O. Bhojudih, P.S. Chandankiyari, District
Bokaro (Jharkhand), at present R/o Sector 12/A, Qr. No.1424, Near
Kali Mandir, P.O. + P.S. Sector 12, District Bokaro (Jharkhand)
…. ... Appellant
Versus
1. Ram Prasad Rajwar, Son of Late Jadish Rajwar, resident of Village
and P.O. Bhojudih, P.S. Chandankiyari, District Bokaro
(Jharkhand).
2. Gita Rajwar, aged about 36 years, W/o Shashi Bhushan Rajwar, R/o
Jagidih, P.O. Jagidih, P.S. Chandankiyari, District Bokaro, Jharkhand
…. ... Respondents
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CORAM: HON’BLE MR. JUSTICE MANOJ PRASAD
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For the Appellant : Dr. Vandana Singh, Advocate
For the Respondent No.1 : Mr. Sunil Singh, Advocate
Mr. Rajesh Kumar, Advocate
For the Respondent No.2 : None
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Reserved on: 09/10/2026 Pronounced on: 30/10/2026
1. Heard Dr. Vandana Singh, learned counsel appearing on behalf of
the appellant and Mr. Sunil Singh, learned counsel appearing on
behalf of the respondent No.1.
2. No one appears on behalf of the respondent No.2.
3. The present appeal has been filed under Section 96 of the Code of
Civil Procedure by the Appellant-Plaintiff, namely, Gangadhar
Rajwar impleading his brother Ram Prasad Rajwar as the respondent
No.1-defendant. In course of hearing of this appeal, Gita Rajwar was
impleaded as a party respondent No.2 being the sister of the
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appellant as well as the respondent No.1 and the daughter of Jadish
Rajwar.
4. The instant First Appeal is directed against the judgment dated
25.03.2023 and the decree signed on 31.03.2023, passed by the
learned Civil Judge (Senior Division)-II, Bokaro in Original Suit
No.06 of 2020, whereby the Original Suit of the plaintiff was
decreed but not in terms of the prayer made by the Appellant-
Plaintiff.
5. The learned Trial Court by the impugned judgment and decree,
allowed the suit of the appellant-plaintiff holding that the plaintiff
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was entitled to the extent of 1/3 share in the suit property and
accordingly a preliminary decree was passed with a further direction
for appointment of Survey Knowing Pleader Commissioner to effect
partition as per the share of the parties by metes and bounds.
Aggrieved by the preliminary decree, the present First Appeal has
been filed.

6. Brief facts of the case are that the Original Suit No.06 of 2020
instituted by the appellant-plaintiff Gangadhar Rajwar against Ram
Prasad Rajwar on 24.01.2020 wherein the plaintiff alleged that the
plaintiff and defendant jointly owned and possessed the land within
the district of Bokaro, Mouza Bhojudih, measuring an area of 33
decimals, which was acquired by them by virtue of registered sale
deed of the year 1985, which is described in Item No.1 of Schedule-
A of the plaint. It is further alleged that they had jointly purchased
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the land measuring an area of 46 decimals through two registered
sale deeds each of 23 decimals of land in the year 2003 and 2005
respectively, which was adjacent to the land purchased by them
measuring an area of 33 decimals, which are fully described in Item
No. II of Schedule-A of the plaint. Apart from that, the plaintiff and
the defendant had jointly purchased the land measuring an area of 29
decimals and 25 decimals, total 54 decimals of land, in the year
2001 through registered sale deeds, which are fully described in
Item No. III of Schedule-A of the plaint. Similarly, the land fully
described in Item No. IV of Schedule-A of the plaint was also
jointly owned and possessed by them.
7. Apart from that, the deceased mother of the plaintiff and the
defendant, namely, Bhikhani Devi had also acquired land, which is
fully described in Schedule-B of the plaint, who died leaving behind
her two sons and a daughter, namely, Gita Devi but the daughter was
not made party to the suit as she had relinquished her share in favour
of her brothers.
8. It is further alleged that in course of time, some dispute and
differences cropped up between the parties and consequent upon
they tried to get their properties mutually partitioned, for which, as
per their mutual consent, an Amin was appointed for measurement
and demarcation of the land and some allocation of the land was also
made but for one reason or another the dispute continued and hence
the suit was instituted for which cause of action arose on 24.06.2014
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when despite a formal bantan-nama signed by the parties at the
intervention of the panch , the same could not be acted upon, hence
the suit was instituted with a prayer for preliminary decree of
partition in favour of the plaintiff for his half share described in Item
Nos.I, II, III and IV of the Schedule-A of the plaint and half share in
Schedule-B of the plaint. There upon, prayer was made for
preparation of a final decree in terms of the preliminary decree.
9. The sole defendant appeared and contested the claim of the plaintiff,
taking various pleas including the plea of bar by the law of
limitation.
10. The defendant-respondent in his written statement admitted the
joint acquisition of the property described in Schedule-A of the
plaint with certain technical defects in summons served upon him.
So far as Schedule-B of the plaint is concerned, details have been
given with regard to purchase made by the mother of the parties and
the fact is not disputed that Schedule-B property was acquired by the
mother of the parties, who died leaving behind her two sons, the
plaintiff, the defendant and one daughter Gita Devi and after the
death of said Bhikhani Devi, the mother of the parties, all three legal
heirs were equally entitled to a share in it. The answering
respondent-defendant contested the plea of relinquishment by the
daughter in favour of her brothers in the absence of any document to
that effect. There is a claim of construction of the house by the
parties themselves, which is being claimed to be in exclusive
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possession of the respective parties. The plaintiff and the defendant
both claimed to have constructed the house thereon. The plea of
previous partition is also taken by the defendant alleging that it was
duly partitioned by village panchayat to the satisfaction of both the
parties and the suit, accordingly, was not maintainable and fit to be
dismissed.
11. On completion of pleadings, the learned trial Court framed the
following issues:
I) Whether suit is maintainable either on facts or in Law?
II) Whether suit is barred by Law of limitation or bad for
nonjoinder or mis-joinder of necessary parties?
III) Whether there is unity of Title and possession over the suit
land mentioned in Schedule “A” and Schedule “B” of the plaint?
IV) Whether earlier there has been any amicable partition for the
property mentioned in Schedule-A Item No. I and Schedule ‘B’
land before punch or with the intervention of the Ld. P.D.J. Court,
Bokaro in connection with Misc. Case No.13/2017 or any
amicable partition due to joint Compromise between the parties of
the landed properties (56 decimals) mentioned in Schedule ‘A’ or
Schedule ‘B’ land?
V) Whether the plaintiff is entitled for preliminary decree of his
half share of Schedule ‘A’ property and half share in Schedule ‘B’
property mentioned in the Plaint? To what relief or reliefs Plaintiff
found entitled?

12. On behalf of the plaintiff, three witnesses, namely, Arjun Rajwar as
P.W.-1, Gour Rajwar as P.W.-2 and Gangadhar Rajwar, who is the
plaintiff and son of Bhikhani Devi as P.W.-3 were examined. The
documents exhibited on behalf of the plaintiff-appellant are: (1)
Exhibit-1, Map duly prepared by Amin Amulya Ratan Mahto, (2)
Exhibit-2, Panchnama dated 25.04.2018, (3) Exhibit-2/1, Signature
of defendant over Panchnama dated 25.04.2018, (4) Exhibit-3, C.C.
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of registered sale deed No.1050 dated 29.01.1985, (5) Exhibit-3/1,
C.C. of registered sale deed No.4730 dated 03.07.2009, (6) Exhibit-
3/2, C.C. of registered sale deed No.3337 dated 18.05.2005, (7)
Exhibit-3/3, C.C. of registered sale deed No.3563 dated 05.09.2001
and (8) Exhibit-4, C.C. of Revisional Survey Khatian .
13. On behalf of the defendant, three witnesses, namely, Meghnath
Ghosh as D.W.-1, Binod Kumar Rajwar as D.W.-2 and Ram Prasad
Rajwar, who is the respondent No.1 as D.W.-3. On behalf of the
defendant, certain documents have been exhibited which are: (1)
Exhibit-A, Bantannama dated 24.06.2014, (2) Exhibit-A/1,
Signature of the plaintiff in Bantannama dated 24.06.2014, (3)
Exhibit-B, Original map prepared by Amin Amulya Ratan Mahto,
(4) Exhibit-C, C.C. of joint compromise petition in Cr. Misc. Case
No.13/2017 and (5) Exhibit-D, C.C. Copy of order sheet dated
25.11.2017 in Cr. Misc. Case No.13/2017.
14. The learned Trial Court after considering the oral as well as
documentary evidence, held that the suit as framed was maintainable
and was not barred by law of limitation. However, Gita Devi, the
sister of the parties was a necessary party to the suit, who was not
impleaded as a party and there was nothing on record to show that
any deed of relinquishment was made or executed by said Gita Devi.
The learned Trial Court while considering the issue Nos. III and IV
held that there was absence of sufficient evidence to show that there
was any previous partition by metes and bounds between the parties
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and that the presumption of unity of title and unity of possession was
not rebutted by any sufficient evidence. Under such circumstances,
the learned Trial Court decreed the suit of the plaintiff holding that
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the plaintiff was entitled to 1/3 share in it as the plaintiff along with
his brother and sister were also entitled to a share in the suit
property. Accordingly, the suit of the appellant-plaintiff to the extent
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of 1/3 share was decreed and a preliminary decree to that effect
was passed. Further, order was passed for preparation of final decree
by appointing the Survey Knowing Pleader Commissioner.
15. Dr. Vandana Singh, learned counsel appearing on behalf of the
appellant-plaintiff has submitted that in course of hearing of this
appeal, by the order of this Court, the sister i.e. Gita Devi was
impleaded as a party to the appeal. The said respondent No.2
appeared before the Court acknowledging the factum of
relinquishment of her share in favour of her brothers and for the
said purpose, it was proposed that she would be filing a petition to
that effect before this Court, which was not filed . However, the fact
remains that the sister does not claim any share in the property as
she has relinquished her share in favour of her two brothers. Under
such circumstances, the plaintiff was entitled to ½ share in the entire
suit property, which fact was not considered by the learned Trial
Court while passing the impugned judgment and decree.
16. Dr. Singh further submitted that even otherwise, the said respondent
No.2 i.e. Gita Devi would be entitled to a share only in respect of the
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property of the mother and not in respect of the property which was
jointly acquired by her brothers i.e. the present appellant and the
respondent No.1 but the learned Trial Court committed an error in
law and fact in not passing a decree of ½ share in respect of
Schedule-A property and thus the impugned judgment and decree to
that extent is fit to be set aside.
17. Dr. Singh has further submitted that there are further issues,
particularly the issue relating to possession, construction of house
etc. which have not been considered while passing the preliminary
decree. However, in all fairness, she has submitted that these
questions can be considered even at the stage of final decree when
actual demarcation of land would be done by following the
principles of partition where the possession of the parties and the
construction made by the respective parties is to be respected, if it is
equitable. Therefore, it has been further submitted that the only point
for determination which arises in this case is whether the claim of
relinquishment as put forward by the parties in respect of the share
of Gita Devi in favour of her two brothers was fit to be considered or
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not and whether a decree for partition of 1/3 share in respect of
Schedule-A property could have been passed. Hence, prayer has
been made to allow the appeal by setting aside the impugned
judgment and decree and decreeing the suit in favour of the
appellant-plaintiff by passing a decree that the plaintiff was entitled
to ½ share in the entire suit property.
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18. Per contra , Mr. Sunil Singh, learned counsel appearing on behalf of
the respondent No.1 has submitted that the appellant had taken up a
plea of previous partition, which was not considered. It has been
further submitted that there was no document on record that there
was any relinquishment of share of the respondent No.2 in favour of
the appellant and the respondent No.1 and, therefore, the respondent
No.2 was lawfully entitled to a share in the property. However,
learned counsel for the respondent No.1, in all fairness, concedes
that Schedule-A property was jointly acquired by the appellant and
the respondent No.1 and it was not the paternal property of the
parties. It has been also argued that certain aspects of the case were
not considered with regard to possession of the parties and the
respective construction of house by them over the land in their
possession, which was based on amicable family partition through a
panchayati . On these arguments, prayer has been made to pass
appropriate orders.

19. In course of argument, learned counsel for the Respondent has
submitted that though the Respondent had a claim of previous
partition, which was disbelieved by the learned Trial Court, but he
has neither filed any cross appeal nor has taken cross objection in
this appeal.

FINDINGS

20. Heard the learned counsel appearing on behalf of the appellant and
the respondent No.1 and perused the Trial Court Record and also the
materials available on record.
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21. After hearing the rival contentions of the parties, the short Point for
determination which falls for consideration before this Court is
whether the properties described in Schedule-A of the plaint were
jointly acquired by the appellant and the respondent No.1 or it was
the paternal property where the respondent No.2 was also entitled
to a share in it .
22. Above being the dominant point for determination would put at rest
to the entire issues involved in the present appeal.
23. In course of argument, the fact is not in dispute that Schedule-B
property was acquired by the mother of the parties, and the law is
not in dispute that on death of the mother, all her legal heirs would
be entitled to a share in it. In so far as Schedule-B property is
concerned, this property admittedly belonged to the mother of the
parties and upon her death all her three legal heirs i.e. two sons
and one daughter Gita Devi would be equally entitled to a share in
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it and to that extent the preliminary decree awarding 1/3 share of
each of the parties is in accordance with law . Oral plea of
relinquishment cannot be entertained as relinquishment has to be
evidenced by registered document. Relinquishment comes under the
meaning of transfer, under the T P Act, which mandatorily requires
registration. More so, in the facts of the present case, the appellant
or the respondent No.1 have not come up with any document of
relinquishment and even if the respondent No.2, despite orally
admitting the factum of relinquishment, but in absence of a
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registered instrument or any valid document i.e. a judicial order
recognizing relinquishment, such plea of relinquishment cannot be
entertained.
24. So far as Schedule-A property is concerned, there being four
properties described in it as Item No. I, II, III and IV. Four sale
deeds have been exhibited. Exhibit-3 is sale deed No.1050 dated
29.01.1985 where the purchasers are Ram Prasad Rajwar and
Gangadhar Rajwar and the property relates to land of Plot No.1120
measuring an area of 33 decimals, which is described in Item No.I of
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Schedule-A of the plaint. Similarly, 2 exhibit i.e. Exhibit-3/1 also
shows that the purchasers are Ram Prasad Rajwar and Gangadhar
Rajwar, which relates to Item No. II of Schedule-A of the plaint. It is
apparent that four sale deeds show that the same are jointly acquired
by the present appellant and respondent No.1. The ld. Trial Judge in
its judgment, which presently is under challenge, has also concluded
that the schedule A property was acquired by the two brothers i.e.
the present Appellant and Respondent no.1. Under such
circumstances, various properties described in Schedule-A of the
plaint shall be considered to be the joint property between the
appellant and the respondent No.1, where the respondent No.2 i.e.
their sister was not entitled to any share in it. However, the learned
Trial Court despite deliberating on the various documents and the
admitted contention of the plaintiff and the defendant i.e. the present
appellant and the respondent no.1 that Schedule-A property was
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admittedly jointly acquired by the appellant and the respondent
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No.1, decreed the suit allowing only 1/3 share in Schedule-A
property, which to the considered view of this Court, is not in
accordance with law.
25. The sole question for determination as formulated by this Court
rests answered, that the properties described in Schedule-A of the
plaint was not the paternal property of the parties rather it was
jointly acquired property by the appellant and the respondent No.1
where both the appellant and the respondent No.1 were equally
entitled to ½ share in it .
26. There is nothing on record to show that it was a HUF acquisition
arising out of the funds of joint family nucleus and hence allowing
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1/3 share to the sister of the parties in Schedule-A of the plaint was
contrary to the materials on record.
27. This Court, therefore, is of the considered view that passing of the
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preliminary decree to the extent of 1/3 share in respect of
Schedule-A property is not in accordance with law. The plaintiff and
the defendant No.1 were equally entitled to an equal share in
Schedule-A property and a decree to the extent of ½ share in
respect of Schedule-A property ought to have been passed .
28. It is reiterated that so far Schedule-B property is concerned, the
same, admittedly was in the name of the mother of the parties where
all three class I legal heirs would be entitled to an equal share and in
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this case the appellant, the respondent No.1 and the respondent No.2
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were entitled to an equal share in it. Therefore, the decree of 1/3
share in respect of Schedule-B property of the plaint is, hereby,
affirmed .
29. Certain incidental questions, which comes up for consideration
before this Court relates to the question of construction of house by
the appellant and the respondent and also possession by the parties,
may be, by way of mutual convenience or through some
unrecognized partition. The law is settled particularly in relation to
partition that at the time of preparation of final decree, the Court
should consider the respective possession of the parties and respect
the same, so far it is equitable. Further, if construction has been
made by any of the parties, effort should be made to ensure that such
portion of land is allotted to the share of the person, who has made
construction over it but all these comes up with a rider that under no
circumstance, the partition can be in-equitable considering the
previous possession or any construction made by the respective
parties. Therefore, these questions remain open for consideration at
the time of preparation of final decree and, hence, at this stage no
comment is required to be made on these aspects of this case.
30. Having considered the entire contentions of the parties and having
decided the point for determination as formulated by this Court, the
present First Appeal is partly allowed only to the extent that the
preliminary decree is, modified as discussed above. To conclude,
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the preliminary decree with respect to Schedule-A property is
modified and it is held that the appellant and the respondent are
equally entitled to ½ share in Schedule-A property while so far as
Schedule-B property is concerned, the appellant, respondent No.1
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and respondent No.2 are equally entitled to 1/3 share in
Schedule-B property. With the above observation and modification
in the preliminary decree, the present First Appeal is partly
allowed .

(Manoj Prasad, J.)


th
October 30 , 2026
N.A.F.R.
Madhav/-
Uploaded on: 30/10/2026

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