2026:JHHC:16061

1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S. A. No. 88 of 1984(R)

1. Bhakti Mahto, son of Ganesh Mahto, deceased by caste Kurmi

Mahto by occupation cultivators, residents of Village Taratand,

P.S. Nawadih, District-Giridih (Dead and substituted vide order

dated 07.10.2025).

1(a) Mohan Mahto, aged about 63 years, son of Late Bhakti

Mahto

1(b) Rameshwar Mahto, aged about 50 years, son of Late Bhakti

Mahto

1(c) Ghanshyam Mahto, aged about 47 years, son of Late Bhakti

Mahto

All resident of village Taratand, tola Hussodih, P.O. and P.S.

Nawadih, District Bokaro.

1(d) Bisni Devi, aged about 67 years, W/o Kaleshwar Mahto, D/o

Late Bhakti Mahto, resident of Chirudih, P.O. Chirudih, P.S.

Nawadih, District Bokaro.

1(e) Sukari Devi, aged about 65 years, W/o Sankar Mahto, D/o

Late Bhakti Mahto, resident of Mahuari, P.O. Mahuari, P.S.

Bagodar, District-Giridih.

1(f) Koshilya Devi, aged about 57 years, W/o Churamani Mahto,

D/o Late Bhakti Mahto, resident of Bhalmara tola Rakhwa, P.O.

Bhalmara, P.S. Nawadih, District Bokaro.

1(g) Jailal Mahto, aged about 42 years, son of Rameshwar Mahto,

maternal grand son of Late Bhakti Mahto.

1(h) Bina Devi, aged about 45 years, D/o Rameshwar Mahto,

maternal grand daughter of Late Bhakti Mahto

Both resident of Palamu, P.O. Palamu, P.S. Peank, Narayanpur,

District-Bokaro

… … Plaintiffs/Respondents/Appellants

Versus

1. Mangar Mahto, son of Uttim Mahto, deceased, by caste Kurmi

Mahton, by occupation agricultural labourers, resident of village

Tingra, P.S. Dukri, at present resident of village Taratand, P.S.

Nawadih, District Giridih (Died and substituted vide order dated

29.02.1996).

1(a) Namia Devi, wife of Fulchand Mahto, D/o Late Mangar

Mahto, resident of village- Ratari, P.O. and P.S. Dugda, District

Giridih (Now Bokaro). (Abated vide order dated 06.11.2025)

1(b) Khokia Devi, daughter of Late Mangar Mahto and wife of

Kali Mahto, resident of village-Junodih, P.O. and P.S. Nawadih,

District Giridih (Now Bokaro) (Abated vide order dated

06.11.2025)

2. Lakhan Lal, son of Jageshwar Lal, resident of Village Nawadih,

P.O. and P.S. Nawadih, District Giridih (Now

Bokaro).(Substituted vide order dated 30.01.2026)

2(a) Shankar Pansari, S/o: Late Lakhan Lal

2(b) Hira Pansari, S/o Late Lakhan Lal

2026:JHHC:16061

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2(c) Om Pansari, son of Late Lakhanlal (deleted vide order dated

30.01.2026)

3. Bukan Mian, son of Wahadali Mian, resident of village Nawadih,

P.O. and P.S. Nawadih, District Giridih (Now Bokaro)

(Substituted vide order dated 30.01.2026)

3(a) Rahman Mian, S/o Bukan Mian

3(b) Muslim Mian, S/o Bukan Mian

3(c) Kamrul Mian, S/o Bukan Mian

3(d) Inues Ansari, S/o: Late Samsuddin Mian, Grandson of Late

Bukan Mian

3(e) Ikram Ansari, S/o: Late Samsuddin Mian, Grandson of Late

Bukan Mian

3(f) Hakik Mian, S/o: Late Bukan Mian

All resident of village-Nawadih, P.O. and P.S. Nawadih, District-

Bokaro

3(g) Basiram Bibi, D/o Late Bukan Mian, W/o: Gulam Ansari,

R/o: Mairchaitand, P.O.-Telo, P.S.: Chandrapura, District: Bokaro.

4. Abdul Karim, son of Fajo Mian, resident of village Nawadih, P.O.

and P.S. Nawadih, District Giridih (Now Bokaro). (Abated vide

order dated 06.11.2025)

5. Mahabir Mahto (Substituted vide order dated 30.01.2026)

5(a) Kisto Mahto, S/o Late Mahabir Mahto

5(b) Thakur Mahto, son of Late Mahabir Mahto (deleted vide

order dated 30.01.2026)

5(c) Dinu Mahto, S/o Late Mahabir Mahto

R/o Jainamore, P.O. Jainamore, P.S. Jaridih, District-Bokaro

6. Aghnu Mahto (Substituted vide order dated 30.01.2026)

6(a) Suresh Mahto, S/o Late Aghnu Mahto

6(b) Naresh Mahto, S/o Late Aghnu Mahto

Both R/o Jainamore, P.O. Jainamore, P.S. Jaridih, District-Bokaro

7. Chhotu Mahto (Deleted vide order dated 17.11.2025)

8. Falguneshwar Mahto son of Panchu Mahto, resident of Maraphari

P.O. and P.S. Maraphari, District Dhanbad at present resident of

Taratand, P.O. and P.S. Nawadih, District- Giridih (now Bokaro)

(dismissed on account of non-compliance of order dated

13.07.1998).

… … Defendants no. 2 to 9/Appellants/Respondents

---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

For the Appellant : Mr. Saibal Mitra, Advocate

: Mr. Mahesh Kumar Mahto,

Advocate

: Mr. Laxman Kumar, Advocate

For Resp. Nos. 3(a) to 3(g) : Mr. Ayush Aditya, Advocate

: Mr. Avnish Prakhar, Advocate

---

C.A.V. On 05.02.2026 Pronounced on 03.06.2026

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1. This appeal has been filed against the judgment dated

25.04.1984 (decree signed on 28.04.1984) passed by learned

Additional Sub-Judge, Giridih in Title Appeal No. 20 of 1982/ 18 of

1983 whereby the judgment dated 15

th

June, 1982 (decree signed on

19.06.1982) passed in Title Suit No. 19 of 1980 by learned Munsif,

Bermo at Tenughat, Giridih has been set-aside.

2. The title suit was decreed in favour of the plaintiffs and the

judgment was set aside by the learned 1

st

appellate court.

Consequently, the plaintiffs are the appellants before this Court.

3. The records of the case reveal that the defendant no.1 in the

trial court was Budhan Mahton son of Uttim Mahton, but on account

of his death, his name was expunged during trial vide order dated

12.05.1982 and accordingly the defendant nos. 2 to 9 of the suit

became respondent nos.1 to 8 before this court.

4. It is important to note that it has been recorded in order dated

07.10.2025 in paragraph 14 that the trial court’s judgment reveals that

the spelling of title Mahton was written as Mahto but in the decree the

spelling was written as Mahton. The 1

st

appellate court’s judgement

has used the spelling as Mahto and consequently, before this court

also the spelling has been used as Mahto.

5. The suit was filed for the following reliefs:-

(a) It be declared that the sale deeds dated 21.02.1973 and

07.05.1976 executed by defendant No.1 and 2 in favour of

defendant No. 3 are illegal and void and not binding on the

plaintiff and the same have not affected the title of the

plaintiff to the suit lands which is subsisting.

(b) Possession of the plaintiff over the suit land be confirmed

and in the event of dis-possession during the pendency of

the suit, khas possession be recovered to the plaintiffs be

evicting the defendant No.3 therefrom.

(c) a decree for the cost of the suit.

(d) any other relief or reliefs to which the plaintiff be found

entitled in law and equity be also awarded to him against

the defendants.

6. The schedule of the property is as below:-

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All that 1.23 acres of land situated in village Taratand, P.S. Nawadih,

District-Giridih recorded under Khata No. 11 details of which are as

under:-

Khata No. Plot No. Area

11

977 11 dec.

976 16 dec.

1468 6 dec.

1482 13 dec.

1365 3 dec.

1367 5 ½ dec.

1489 8 dec.

1456 2 dec.

1572 7 ½ dec.

1866 14 ½ dec.

1569 2 dec.

1573 3 dec.

1579 2 dec.

1575 10 ½ dec.

1583 13 dec.

1582 6 dec.

Total 1.23

acres

7. This appeal was admitted for final hearing by giving the entire

background of the case vide order dated 08.07.1996. The background

of the case and the substantial questions of law as recorded in order

dated 08.07.1996 is as under:

“…………………………………….

This suit was filed by the plaintiff appellant for declaration of

two sale deeds executed by the defendant respondent in favour

of defendant no.3 having no title in those properties and such

declaration as claimed from the side of the plaintiff have been

challenged by defendant by filing joint written statement.

The plaintiff's case is that one Ganesh Mahato was the

original owner of the suit land and he married with one Nirsi

Devi, who had two sons, namely, defendant nos. 1 and 2 by her

previous husband and those sons were brought to the house of

Ganesh Mahato while marrying with Nirsi Devi. After the

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death of Ganesh Mahato, one son, the plaintiff and his sister

remained alongwith Nirsi to inherit the property of Ganesh

Mahato, but Nirsi Devi out of her affection for her sons, which

she had got by her previous husband, made a deed of

Batwaranama in the year 1946 giving half share to the

defendant nos. 1 and 2. According to the plaintiff, he was not

in the knowledge of such Batwaranama or in possession from

the side of the defendant nos. 1 and 2 as when he became

major in the year 1950, he saw defendant no. 1 and 2 living

separately. He came to know of such Batwaranama only in

some criminal proceedings filed by defendant no.3 against the

plaintiff. The title of the plaintiff was clouded when he came to

know that defendant nos. 1 and 2 had parted the properties in

favour of defendant no.3 and hence declaration was sought

for. Original Court decreed the suit in favour of the plaintiff,

but on appeal being filed, the decree was reversed holding that

the suit in the present form is not maintainable as the

possession although adverse remained in favour of defendant

nos. 1 and 2. Hence, the suit was dismissed after allowing the

appeal.

This second appeal is admitted on the following substantial

questions of law: -

i. Whether the suit in the present form for declaration is

having any question related to the adverse possession as

claimed from the side of defendant nos. 1 and 2?

ii. Whether the plaintiff’s suit would suffer due to his non-

filing of declaration against the defendant nos. 1 and 2

challenging the Batwaranama of 1946 on attainment of his

majority within three years after 1950?

8. 3

rd

substantial question of law was framed vide order dated

07.10.2025, which is as under:

“(iii) Whether any relief can be granted to the appellants

when the appeal has abated against respondent nos. 4 and

8?”

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9. Learned counsel for the parties have jointly submitted that so

far as the deceased persons involved in this case are concerned, the

same shall not have any impact in the present case and therefore, the

appeal is not abated.

10. Arguments of the appellants

I. The learned counsel for the appellants has submitted that the

suit was filed by sole plaintiff and the appellants are the legal

heirs of the sole plaintiff. The suit was decreed. The learned

1

st

appellate court has reversed the decree and consequently

the second appeal has been filed by the appellants.

II. The learned counsel for the appellants has submitted that it

is not in dispute that Ganesh Mahto married with Nirsi Devi,

who had two sons, that is, defendant nos. 1 and 2 from her

previous husband. The plaintiff, namely, Bhakti Mahto, was

born out of wedlock of Ganesh Mahto and Nirsi Devi. The

learned counsel submits that the defendant nos. 1 and 2

executed two sale deeds in favour of defendant no. 3,

although they did not have any title over the property

belonging to Ganesh Mahto.

III. He has referred to the provisions of Section 3(e) of the

Hindu Succession Act, 1956 and submits that the plaintiff

and the defendant nos. 1 and 2 were related by ‘Uterine

Blood’ and then he has referred to Section 8 of the aforesaid

Act dealing with succession of property belonging to male.

He has then referred to the Schedule to the Act and

submits that the Schedule specifically excludes reference to

brother or sister who are related by ‘Uterine Blood’.

IV. The learned counsel submits that the consequence is that the

property of Ganesh Mahto would devolve exclusively upon

the plaintiff and not in favour of the defendant nos. 1 and 2

and consequently, the defendant nos. 1 and 2 had no right

over the property to convey through sale deed. He submits

that the sale deeds executed by defendant nos. 1 and 2 in

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favour of defendant no. 3 were under challenge before the

learned trial court.

V. With respect to 1

st

substantial question of law, the learned

counsel for the appellants has submitted that on the face of

the written statement, the foundational pleadings in

connection with adverse possession is totally missing. He

submits that mere mention of adverse possession in the

written statement is not sufficient and the foundational

pleadings should contain the date of possession and also

acceptance of the title of the true owner. He submits that

these aspects were missing and the learned 1

st

appellate

court could not have given the finding in favour of the

respondents, so far as the adverse possession is concerned.

VI. The learned counsel has submitted that the suit was filed for

a declaration that the sale deeds executed by defendant nos.

1 and 2 in favour of defendant no. 3 was not binding and it

was void and illegal and also for confirmation of possession.

VII. The learned counsel for the appellants has relied upon the

following judgments on the point of adverse possession: -

(i) (1995) 2 SCC 543 (Annasaheb Bapusaheb

Patil & Others vs. Balwant @ Balasaheb

Babusaheb Patil)

(ii) (2004) 10 SCC 779 (Karnataka Board of

Wakf vs. Government of India & Others)

(iii) (2006) 7 SCC 570 (T. Anjanappa &

Others vs. Somalingapa & Anr.)

VIII. With respect to 2

nd

substantial question of law, the learned

counsel for the appellants has submitted that a deed of

partition is not a document of transfer, but it only distributes

property amongst the title holders. He submits that in a case

where the property of a minor is alienated, then only the

question of challenging the same within three years of

attaining majority applies. He submits that since partition is

not transfer, the partition deed dealing with the property

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which did not belong to the defendant nos. 1 and 2 is of no

consequence and the same was not required to be challenged

at all. He has referred to Article 60 of the Limitation Act.

IX. Learned counsel for the appellants has further submitted that

the partition deed involved in the present case is Exhibit-H

dated 29.01.1946 in which two uterine brothers of the

plaintiff and their mother are the signatories. He submits that

admittedly on the date of execution of partition deed, the

plaintiff was a minor and he attained majority in the year

1950. It is not in dispute that the parties are governed by

Mitakshara School of Hindu Law and the father of the

plaintiff expired in 1942 and that the property was recorded

in the name of the father. The learned counsel submit that the

mother had no right to the property to allocate the same to

the uterine brothers of the plaintiff who are otherwise not

entitled to succeed to the property of the father of the

plaintiff. He has submitted that in effect, the property of the

plaintiff has been transferred to his uterine brothers through

partition deed and such modus of transfer is void ab-initio

and therefore, there was no need for the plaintiff to challenge

the deed of partition. In such circumstances, the limitation

prescribed under Article 60 of the Limitation Act has no

applicability.

X. The learned counsel has submitted that after death of the

mother, the plaintiff was the sole successor of the property

and the entire property of his father would have devolved

upon him and his uterine brothers had no right to the

property.

XI. He submits that in such circumstances, the transfer of

property made by his uterine brothers vide registered sale

deeds of the year 1973 and 1976 were void ab-initio and

consequently, it was not binding upon the plaintiff. He

submits that the learned trial court has held that the challenge

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to the sale deeds and the connected relief was governed by

Article 65 of the Limitation Act, as the plaintiff was seeking

confirmation/recovery of possession with respect to the

property which was subject matter of sale deeds of the year

1973 and 1976. Learned counsel submits that this finding of

the learned trial court has been reversed by the learned 1

st

appellate court who has held that the declaration sought for

with respect to the two sale deeds would be governed by

Article 58 of the Limitation Act and has held that the relief

in connection with the two sale deeds is barred by limitation.

He has submitted that though no substantial question of law

has been framed on the point of limitation, but still the court

can decide it.

XII. On the point of limitation, the learned counsel has referred to

the judgment passed by Hon’ble Supreme Court reported in

2025 SCC Online SC 1961 [Shanti Devi (Since Deceased)

through Lrs. Goran vs. Jagan Devi and Others] and has

referred to paragraph 5, 29, 30, 38 and 39.

11. Arguments of the respondents.

A. On the 1

st

substantial question of law, the learned counsel for the

respondents representing defendant no. 4 and 5 does not dispute

that the foundational plea in connection with adverse possession

is totally absent in the written statement. The learned counsel

representing the defendant nos. 4 and 5 had on earlier occasion

submitted that he had filed Vakalatnama on behalf of legal heirs

of defendant nos. 3, but they have taken ‘No Objection’ from him

and no fresh Vakalatnama has been filed in the present case on

behalf of the legal heirs of the defendant no. 3.

B. The learned counsel for the respondents has opposed the prayer

and has submitted that the husband having expired in the year

1942, the property would certainly devolve upon his widow and

son as by that time the Hindu Woman’s Right to Property Act,

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1937 had already come into force and they had equal share on the

property.

C. The learned counsel has submitted that under such

circumstances, at best the plaintiff had ½ share with respect to

the property of his father and the ½ share was with the mother.

He submits that in the partition, ½ share was allocated to the

plaintiff and ½ share was allocated to his two uterine brothers.

The learned counsel submits that there can be no doubt that the

uterine brothers of the plaintiff formed a part of the joint family

consisting of widow and her three sons, one through her 2

nd

husband and two others through her previous husband.

D. The learned counsel submits that if the plaintiff had any

grievance in connection with the allocation of share to the extent

of 50% to his uterine brothers, he ought to have challenged the

same within three years of attaining majority. Learned counsel

has further submitted that the registered deed of partition dated

29.01.1946 was also duly acted upon by the parties, inasmuch as,

the plaintiff and his uterine brothers had jointly sold the property

which was also subject matter of the partition and therefore, the

plaintiff had acknowledged the right of his uterine brothers in

connection with the property.

E. He has further submitted that the sale deeds of the year 1973 and

1976 were executed by referring to the deed of partition. The

learned counsel has submitted that since no substantial question

of law has been framed in connection with applicability of

Article 59 of the Limitation Act, with respect to two sale deeds as

decided by the learned 1

st

appellate court, there is no scope for

this Court to enter into this dispute as the 2

nd

appeal has to be

decided strictly on the substantial question of law framed by the

court.

F. He has also submitted that otherwise also the learned 1

st

appellate

court has rightly held that the prayer seeking declaration that two

sale deeds of 1973 and 1976 were not binding upon the plaintiff

2026:JHHC:16061

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was barred by limitation by referring to Article 58 of the

Limitation Act.

G. The learned counsel has also submitted that the suit property

involved in this case was only relating to the property covered by

the two sale deeds i.e. 1973 and 1976 and further the partition

deed dated 29.01.1946 was not specifically under challenge in

the suit as no relief was prayed for in connection with the

partition deed. He submits that the present suit will have a

bearing only with respect to the suit property i.e. property

covered under two sale deeds of 1973 and 1976 and he is

representing the purchasers of the property covered by the two

sale deeds.

H. Learned counsel submits that the defendant No.4 and 5 are the

persons who had purchased the property from defendant No. 1

and 2 by other sale deeds which is not under challenge in the

present case, but at the same time those properties are also

involved in the partition deed dated 29.01.1946.

I. Learned counsel for the respondents has relied upon the

judgment reported in 2019 (20) SCC 633[Murugan and Others

v. Kesava Gounder (Dead) Thr. LRs. And Others] (paragraph 28

and 29) to submit that the plaintiff, if aggrieved by the partition

deed dated 29.01.1946, ought to have challenged the same within

the period of three years from the date of attaining majority

which he admittedly attained in the year 1950.

12. Rejoinder argument of the appellants.

I. Learned counsel for the appellants, in response, has submitted

that the learned 1

st

appellate court has recorded the finding in

favour of the defendant Nos. 1, 2 and 3 with respect to the suit

property on the point of adverse possession and since no

foundational plea was taken in connection with the adverse

possession therefore, the finding recorded by learned 1

st

appellate court on the point of adverse possession is certainly fit

to be set aside.

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II. Learned counsel has also submitted that the defendant Nos.1

and 2 could not have simultaneously taken the plea of title

based on partition deed dated 29.01.1946 and adverse

possession. However, it is not in dispute that the foundational

plea in connection with claiming adverse possession was not

taken by the defendants in their written statement.

III. The learned counsel has also submitted that the learned trial

court has given a finding that defendant Nos. 1 to 3 have no title

over the suit property and this finding has not been reversed by

the learned 1

st

appellate court.

Findings of this Court

13. Case of the Plaintiffs:-

A. Raiyati lands measuring in all 11.04 acres was recorded in the

name of Ganesh Mahton, son of Piarchand Kurmi and he was

the absolute owner thereof in continuous possession.

B. One Nirsi Devi was married to Uttim Mahton and had two sons

Budhan Mahto (original defendant no. 1) and Mangar Mahto

(original defendant no.2). Uttim Mahton died leaving his

widow and aforesaid two children.

C. Thereafter, Nirsi Devi married Ganesh Mahton in or about the

year 1928 and brought her two children, original defendant no.

1 and 2, with the consent of Ganesh Mahton and brought them

up. In course of time, Nirsi Devi begot one son and a daughter

through Ganesh Mahton, namely, the plaintiff and Kumari

Bhulia. Kumari Bhulia in course of time was married to Lalu

Mahton and she was still living with her husband and children.

D. Ganesh Mahton died sometimes in the year 1942 leaving

behind his widow Mt. Nirsi and a daughter Bhulia and his son

Bhagti Mahton (the plaintiff) who succeeded to the lands of

Khata No. 11 of village Taratand.

E. After death of Ganesh Mahton, Nirsi Devi began to be

pressurized by defendant Nos.1 and 2 to give them some lands

for their maintenance lest they feared that plaintiff, after he

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comes to age, may not allow them to share an inch of land out

of Khata No.11. It is the case of the plaintiff that Nirsi Devi ,

without any right or authority in law to do so, executed a deed

of so-called partition amongst the plaintiff and defendant No.1

and 2 on 29.01.1946 acting as guardian of the then minor

plaintiff in spite of knowing fully well that defendant Nos.1

and 2 neither had any right or title in the lands of Khata No. 11

nor could they have demanded partition. Nirsi Devi purportedly

allotted 8/- annas share, jointly to defendant No.1 and 2, and 8/-

annas share, to the plaintiff by making a false recital that such

an arrangement had been made by her 2

nd

husband, Ganesh

Mahton himself, during his life time. It is the case of the

plaintiff that though the document dated 09.01.1946 was with

nomenclature ‘deed of partition’ but it did not partake the nature

of partition. It simply purported to define the share of plaintiff

and defendant Nos.1 and 2. However, this was a mere paper

transaction which did not become operative nor could bind the

plaintiff, who was a minor at that time, and had no knowledge

or idea about such a document which was kept a close secret.

The defendants No.1 and 2 also did never disclosed this fact to

any known relative nor to any person in the village until they

claimed a right in the lands of khata No. 11 in the year 1973.

F. The plaintiff attained majority in the year 1950 before which

Nirsi Devi had died in the year 1949.

G. The plaintiff, after attaining majority, found the defendants

No.1 and 2 living in a separate house. The plaintiff could come

to know later from the villagers about the parentage of

defendant Nos.1 and 2. However, after attaining majority, the

plaintiff entered into khas cultivating possession of all the lands

of khata No.11 measuring 11.04 acres. After the date of vesting,

the plaintiff’s father’s name was entered and continued in the

tenant’s ledger prepared and opened by the State of Bihar. The

plaintiff on receiving demand notice started paying rent for the

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entire 11.04 acres of land of Khata No.11 and continued to pay

rent till 1964. The plaintiff also remained in khas cultivating

possession of 11.04 acres of khata No. 11.

H. In 1966 the plaintiff negotiated to sell some lands of khata No.

11 to defendant No.4 and 5 and 6 to 9 on various occasions, but

on all occasions, they insisted that defendant No. 1 and 2 should

also be joined as executants in order to obviate future litigation.

The plaintiff while selling lands to defendant No.6 to 9, under

pressure and insistence of the aforesaid defendants, had to

formally join defendant No.1 and 2 as executants although they

had no right, title, interest or possession over any bit of the

lands of khata No.11. In the sale deeds the defendant no. 1 and

2 fraudulently, in collusion with the scribe, got their father’s

name falsely written as Ganesh Mahton, without the knowledge

of the plaintiff and the purchasers. These defendants Nos. 6 to 9

got their names mutated and thereafter the plaintiff continued

paying rent alone for the remaining area of lands till 1972 and

also continued in possession of the remaining area of lands of

khata No.11 of village Taratand for which he was paying and

paid rent till 1972.

I. The plaintiff had been in peaceful continuous possession of the

lands of Khata No. 11 aforesaid, when surprisingly defendant

No.3 falsely instituted a criminal case against the plaintiff

alleging theft of crops from plot No. 976 and 977 of khata

No.11. The plaintiff in course of the said case came to know

that defendant No.3, who is a veteran litigant and land grabber,

fraudulently, falsely and by setting up defendant no.1 and 2,

who had no right or title to the lands of khata No. 11, obtained

a sale-deed in respect of 0.46 acres of land within plot No. 976,

977, 1482 and 1462 on 21.02.1973 without paying them a

single farthing on the consideration of fighting out a litigation

for them and for establishing their right. The plaintiff however

fought the same case which ended in his clean acquittal. The

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learned Magistrate held on the evidence that the complainant

Lakhan Lal had instituted that case in order to secure possession

of the disputed lands. In that very case, the plaintiff also learnt

about the fraudulent and collusive deed of partition executed by

Nirsi Devi.

J. Thereafter, defendant Nos. 1 to 3 remained quiet, but in 1976

the defendant No.3 again succeeded in setting up defendant

No.1 and 2 by giving them false assurances of securing their

right in the lands of khata No. 11 and thereby obtained a false

deed of sale dated 07.05.1976 in respect of 0.77 acres of land

within plot No. 1365, 1367, 1489, 1456, 1572, 1856, 1569,

1573 and 1582 of Khata No. 11 without paying a single farthing

to defendant No.1 and 2 as consideration.

K. Thereafter as usual, when the crops grown by the plaintiff had

grown ripe for harvest, the defendant No.3, on the strength of

brute force, succeeded this time in illegally committing theft of

crops from some of the lands for which the plaintiff filed a case

u/s 379 of Indian Penal Code against defendant No.3 which

ended in acquittal of the defendant No.3. However, the plaintiff

continued in possession of entire plot numbers covered by the

sale deeds dated 21.02.1973 and 07.05.1976 standing in the

name of the defendant No.3.

L. Thereafter the defendant No.3 finding no way out to take

possession got a proceeding under section 144 Cr.P.C. initiated

in respect of 1.23 acres of unspecified lands out of the plots

covered by the sale deeds dated 21.02.1973 and 07.05.1976.

The said case was ultimately converted into a proceeding under

section 145 Cr.P.C. The defendant No. 3 in his show cause

made out a false case that defendant No.1 and 2 are the sons of

Ganesh Mahton and that after purchase he got his name

mutated. It has been submitted that the mutation order, if any,

might have been obtained by defendant No.3 fraudulently in

collusion with the Anchal staff by surpassing all processes. It is

2026:JHHC:16061

16

learnt that one Durga Prasad Burnwal, a veteran Karmchari, got

it done by exerting his own influence. But the said mutation

order long after the dispute has arisen can neither bind the

plaintiff nor can be the evidence of possession since the plaintiff

was still in possession of the lands covered by the proceeding

under Section 145 Cr.P.C. which are the lands in suit described

in the schedule to the plaint.

M. Since the date the plaintiff attained majority in 1950, he has

been in undisturbed possession of the lands of khata No. 11 to

the exclusion of defendant No.1 and 2 to their knowledge and to

the knowledge of the whole world without any claim by the

defendant No. 1 and 2 till 1972.

N. The cause of action for this suit arose on 21.02.1973 and on

07.05.1976, the dates of the execution of the sale deeds.

14. Case of Defendants

a) Defendant Nos. 1 to 3 have filed written statement and asserted

that the instant suit as framed was not maintainable. The

plaintiff has failed in series of litigations.

b) The defendant Nos.1 and 2 are none but are also the sons of the

recorded tenant Ganesh Mahto being begotten from a common

mother Nirsi Devi which also stands admitted in several

documents and papers by the plaintiff Bhakti Mahto.

c) The suit is barred under the law of limitation, estoppel, res-

judicata, waiver and acquiescence, and also under Specific

Relief Act.

d) Suit is further barred by the law of adverse possession since the

suit land was firstly in cultivating possession of the defendant

Nos.1 and 2 and then it came in physical possession of the

defendant No.3 in the year 1973 and since then it has been

coming in his continuous physical possession.

e) From the relief portion of the plaint, it would appear that

whatever relief or reliefs the plaintiff has sought by filing the

instant suit, are deemed to have been sought only against the

2026:JHHC:16061

17

defendant Nos. 1 to 3 and since no relief has been sought

against the defendant Nos. 4 to 9, the suit being bad for mis-

joinder of the parties, is fit to be dismissed.

f) The two sons of Nirsi Devi, namely, defendant no. 1 and 2,

begotten from her previous and deceased husband Uttim Mahto

were brought to the house of her 2

nd

husband Ganesh Mahto and

were also adopted by him as of his two sons.

g) Ganesh Mahto had died in or about the year 1942 but it was not

a fact that he had died leaving behind his widow Nirsi Devi and

a daughter Bhulia and the plaintiff who succeeded to the lands

of khata No. 11. On the contrary, Ganesh Mahto was also

survived by his two adopted sons, namely, defendant Nos. 1 and

2 and after his death all his three sons, namely, plaintiff and

defendant no. 1 and 2 jointly succeeded the lands of khata No.

1l and continued till their common mother Nirsi Devi

partitioned the land amongst them at the ratio of half and half,

joint half share to the defendant nos. 1 and 2 and half share to

the plaintiff .

h) It was denied that after the death of Ganesh Mahto, Nirsi Devi

began to be pressurized by the defendants Nos.1 and 2 to give

them some lands for their maintenance lest they feared that

plaintiff, after he comes of age, may not allow them to share an

inch of land out of Khata No.11.

i) It was false to allege that Nirsi Devi ,without any right and

authority in law, had executed a deed of so-called partition

amongst the plaintiff and defendant Nos. 1 and 2 on 29.01.1946

acting as guardian of the then minor plaintiff and in that attempt

knowing fully well that the defendant Nos.1 and 2 neither had

any right, or title in the lands of khata No.11 nor could they

have demanded partition.

j) Nirsi Devi allotted 8 annas share jointly to defendant Nos.1 and

2 and 8 annas share to the plaintiff and such an arrangement had

2026:JHHC:16061

18

been made by Ganesh Mahto himself during his life-time and

this was his last will.

k) The allegation of the plaintiff that, though the document dated

29.01.1946 was manufactured as a deed of partition, it did not

partake of the nature of Partition but simply purported to define

the share of the plaintiff and of defendant Nos. 1 and 2, is a

mere allegation and is not a fact. In this connection it was re-

iterated that the document dated 29.01.1946 was not

manufactured as a deed of partition but was really a deed of

partition and that cannot be deemed to be a mere arrangement

and allotment of share amongst the defendants 1 and 2 and the

plaintiff.

l) All the three sons of the recorded tenant Ganesh Mahto shall be

getting equal share in the land in accordance with law of

inheritance and succession.

m) The allegation of the plaintiff that the document being mere a

paper transaction did not bind the plaintiff as he was a minor at

that time has also no leg to stand. The document of partition is

not a mere paper-transaction as alleged by the plaintiff but is a

document which has the force of law and is equally binding

upon the defendant Nos. 1 and 2 as well as upon the plaintiff.

The fact of the execution of the deed of partition by Nirsi Devi

was within the knowledge of the plaintiff and as such the plea

taken by the plaintiff that he being minor was not aware of the

same is not sustainable nor acceptable as being minor had got

sufficient understanding and knowledge at that time. Since deed

of partition was within the knowledge of the plaintiff and since

he was fully aware of the contents of the same, there was no

necessity to these defendant Nos. 1 and 2 to make him known

about the same. Here the plaintiff, instead of stating the real

fact, has made a futile attempt to make a completely false

statement that he was not aware of the contents of the partition

2026:JHHC:16061

19

deed as he was minor and he has done so with a malafide

intention to reap some illegal gain to suit his own case.

n) It is false to allege that the plaintiff had attained majority in the

year 1950 but he had attained majority on earlier date and much

before the year 1950 and he had attained his majority in the life

time of Nirsi Devi. The statement that Nirsi Devi died in the

1949 is far from truth. Nirsi Devi did not die in the year 1949

but she died much after the year 1949.

o) The further averment made by the plaintiff to the effect that the

plaintiff, after attaining majority found the defendant Nos. 1 and

2 living in a separate house, was also claimed to be self-serving

statement and the same was denied in toto. In this connection, it

was stated that the defendants were never living in a separate

house as stated by the plaintiff but were living in the same

house where the plaintiff had been living. The statement that the

plaintiff could come to know later from the villagers about the

parentage of defendant Nos. 1 and 2 was denied. In this

connection it was re-iterated that the plaintiff had been knowing

the parentage of the defendant Nos. 1 and 2 and his relation

with them since his infancy and childhood. Similarly, the

averment that the plaintiff, however, after attaining majority

entered into khas possession of all the lands of khata No.1l

measuring 11.04 Acres is also a twisted and completely false

statement and denied. In this connection it has been asserted

that the plaintiff was never in possession what to say of khas or

symbolical of the entire land of khata No.11. The real position

was that he was in possession of only half of the land while the

other half of the land was in possession of the defendant Nos. 1

and 2. The averment that after the date of vesting, the plaintiff's

father's name was entered and continued in the tenant’s ledger

by the State of Bihar was admitted with the modification that

name of Ganesh Mahto, being the common father of defendants

1 and 2 and of the plaintiff, was entered and continued in the

2026:JHHC:16061

20

tenant's ledger prepared and opened by the State of Bihar. The

further averment that the plaintiff on receiving demand notice

started paying rent for the entire 11.04 Acres of land of Khata

No.11 and continued to pay rent till 1964, has been denied. In

this connection it has been stated that no such occasion had ever

arisen and these defendants are not aware whether any demand

notice was ever received by the plaintiff as alleged by him. Here

it has been denied that the plaintiff had continued to pay rent till

1964. It has been denied that the plaintiff also remained in khas

cultivating possession of 11.04 Acres of land of khata No.11.

p) These defendants were not aware whether the plaintiff being in

need of money had negotiated to sell some land of khata No.11

with the defendant Nos. 4 and 5 and 6 to 9 on various occasions

and on all occasions, they insisted that defendants No. 1 and 2

should also join as executors in order to obviate future

litigation. But it has been admitted that some pieces of land

were sold to defendant Nos. 4 and 5 and 6 to 9 jointly by

defendant Nos. 1 and 2 and by the plaintiff. In this connection,

it has been stated that the defendant Nos. 1 and 2 had joined

their hands with the hands of the plaintiff in disposing off the

land of khata No.11 with the defendant Nos. 4 and 5 and 6 to 9

not because the purchasers insisted to do so, but because they

had got equal share in the land of Khata No.11 being the

adopted sons of the recorded tenant Ganesh Mahto and being

begotten from a common mother Nirsi Devi. In reply to the

averment that the defendant Nos. 1 and 2, in collusion with the

scribe, got their father's name falsely written as Ganesh Mahto

in the sale-deeds, it has been submitted that the allegation to the

effect is a completely false and concocted and denied. Writing

of the father's name of the defendant Nos. 1 and 2 as Ganesh

Mahto in the sale-deeds was within the knowledge of the

plaintiff as well as of the purchasers and was written in his

presence. So far the fact of the mutation of the names of the

2026:JHHC:16061

21

defendant Nos. 4, 5 and 6 to 9 is concerned, it stood admitted by

these defendants but it was denied that the plaintiff kept on

paying rent alone for the remaining area of lands of khata No.11

till 1972 and also continued in possession of the same.

Whatever rent was given for the remaining area, was given

jointly by the defendant Nos. 1 and 2 and by the plaintiff, and

the land remained in their joint possession.

q) Khata No.11 had not been in exclusive possession of the

plaintiff but had been in joint possession of the plaintiff and

defendant Nos. 1 and 2. The plaintiff had instituted case u/s 379

of Indian Penal Code against the defendant No.3 not once but

twice and both the cases ended in clean acquittal of the

defendant No.3. It is false to allege that the plaintiff, in course

of the said case, came to know that the defendant No.3 had

purchased land of khata No.11 but on the contrary he was

knowing the same much before the institution of the case by

him, rather, the sale of the land by the defendant Nos. 1 and 2

in favour of the defendant No.3 was within the knowledge of

the plaintiff. Thus, it was completely false to allege that the

defendant No.3 being a veteran litigant and land grabber had

fraudulently and falsely set the defendant Nos. 1 and 2 up and

got the sale-deeds executed.

r) The sale-deeds by defendant Nos. 1 and 2 in favour of the

defendant No.3 were with full consideration and it was false to

allege that no consideration money was ever paid by the

defendant No. 3 to defendant Nos. 1 and 2. Whatever criminal

cases were brought, they were brought by the plaintiff and in

all the cases so brought by the plaintiff, the Magistrate held that

the complainant, being plaintiff in the instant suit, had been

trying to secure the possession of the land.

s) Sale of the land of plot Nos. 1365, 1367, 1489, 1456, 1572,

1856, 1569, 1573 and 1582 of khata No.11 by the defendant

Nos. 1 and 2 in favour of defendant No.3 was a voluntary sale

2026:JHHC:16061

22

by the defendant Nos. 1 and 2 and for a valuable consideration

and it is false to allege that any false assurance of security to

their right in the lands of khata No.11 was ever made by the

defendant No. 3 by setting up defendant Nos. 1 and 2.

t) It is also false to allege that even after the acquittal of the

defendant No.3, the plaintiff continued in possession of the land

covered by the sale deeds dated 21.02.1973 and 07.05.1976

standing in the name of defendant No.3. The land was never in

possession of the plaintiff and the same was in possession of the

defendant No. 3 and has been coming in his possession.

u) It is false to allege that the defendant No.3 finding no way out

to take possession got a proceeding u/s 144 Cr.P.C. initiated in

respect of 1.23 Acres of unspecified lands out of the plots

covered by the sale deeds dated 21.2.1973 and 07.05.1976. On

the contrary, the fact is otherwise. The plaintiff Bhakti Mahto,

after having been defeated in cases u/s 379 I.P.C. had, in order

to take forcible possession, got a proceeding u/s 144 Cr.P.C.

drawn up with respect to the lands covered by the sale deeds

dated 21.2.1973 and 07.05.1976 arraying himself therein as the

1

st

Party and defendant No.3 as the 2

nd

Party and it is a fact that

the said proceeding u/s 144 Cr.P.C. was converted into a

proceeding u/s 145 Cr.P.C. But it is false to allege that the

defendant No.3 in his show cause had made out a false case that

the defendant No.1 and 2 are the sons of Ganesh Mahto and that

after purchase he got his name mutated. In this connection it

was re-iterated that whatever statement with respect to the

defendant Nos. 1 and 2 of being sons of Ganesh Mahto was

made in the show cause is a correct statement and there is no

falsity in it. The allegation of obtaining mutation order by the

defendant No.3 fraudulently in collusion with the Anchal staff

surpassing all processes is mere surmises and conjectures of the

plaintiff and has purposely been levelled to give undue strength

to his false case. The said mutation order is not a fraudulent one

2026:JHHC:16061

23

but the same was done after observing all formalities and after

exhausting all due processes of law and in obtaining the said

mutation order, no collusion was ever made with any of the

Anchal staff. So far the allegation of getting the mutation order

done by one Durga Prasad Barnwal being the Karmchari of the

Anchal is concerned, it was submitted that it is completely false

to allege that the same was done by Durga Prasad Barnwal.

Besides so far these defendants are concerned, they do not

know any Durga Prasad Barnwal. Thus, the said mutation order,

which was passed after observing all formalities and process of

law, is binding to the plaintiff as well as is also evidence of

possession of defendant No.3 over the land. The plaintiff was

never in possession of the lands covered by the proceeding u/s

145 Cr.P.C. In this connection, it has been submitted that the

said Proceeding u/s 145 Cr.P.C. was ended in favour of the

defendant No.3 after holding the continuous possession of the

defendant No.3 over the land involved in the proceeding and

that order is binding to the plaintiff as well as to anybody on the

earth and that is strong evidence of possession of the defendant

No.3.

15. Written Statement filed by Defendant Nos. 4 to 9 are on

similar lines. These defendants have further stated that the plaintiff has

sought reliefs only against the defendant Nos. 1 to 3 and since no

relief has been sought against the defendant Nos. 4 to 9, the suit is bad

for mis-joinder of the parties and is fit to be dismissed. It has been

stated that so far lands detailed in the schedule of the plaint is

concerned, these defendants have got neither any interest nor any

concern with the same. In this connection, it has been stated that the

suit land is now in peaceful physical possession of the defendant No.3

as he had purchased the same from the defendant Nos. 1 and 2 on

payment of valuable consideration. The defendant Nos. l and 2 being

the adopted sons of the recorded tenant Ganesh Mahto and being

begotten from a common mother Nirsi Devi had sold the suit lands to

2026:JHHC:16061

24

the defendant No.3 in two parts, firstly being in the year 1973 and

secondly, being in the year 1976. The plaintiff was never in possession

what to say of khas or symbolical of the entire land of khata No.11.

The real position was that the plaintiff was in possession of only half

of the land while the other half of the land was in possession of the

defendant Nos. 1 and 2.

16. Learned trial court framed the following issues for

consideration:-

1. Is the suit maintainable in its present form?

2. Has the plaintiff got valid cause of action?

3. Is this suit barred by the law of limitation and adverse

possession?

4. Has the suit been properly valued?

5. Are the sale deeds dated 21.02.1973 and 07.05.1976

genuine and valid documents and binding upon the

plaintiff?

6. Has the title of the plaintiff over the suit lands been affected

by these sale deeds?

7. To what relief of reliefs, if any, the plaintiff is entitled?

17. Both the parties had produced oral and documentary evidences

which are as follows:-

Oral evidence on behalf of plaintiff:-

P.W-1 Bhakti Mahto

P.W-2 Darbari Mahto

P.W-3 Babu Jaan Mian

P.W-4 Arjun Mahto

Documentary evidence on behalf of the

plaintiff:-

Exhibit-1 Certified copy of judgment dated

05.06.1976

Exhibit-2 Khatian in the name of Ganesh Mahto

Oral Evidence on behalf of the defendants:-

D.W-1 Lakhan Lal

D.W-2 Jailal Mahto

D.W-3 Ugan Mahto

D.W-4 Gyanchand Sao

D.W-5 Fagu Mian

D.W-6 Budhan Mahto

D.W-7 Bukan Mian

2026:JHHC:16061

25

D.W-8 Hemlal Mahto

D.W-9 Mangar Mahto

Documentary evidence on behalf of the

defendants:-

Exhibit-A Sale deed dated 04.01.1966

Exhibit-B Sale deed dated 04.01.1966

Exhibit-C Sale deed dated 07.05.1976

Exhibit-C/1 Sale deed dated 21.02.1973

Exhibit-D to D/8 Rent receipts

Exhibit-E Voter List

Exhibit-F Sale deed dated 04.01.1966

Exhibit-G to G/2 Rent receipts

Exhibit-H Partition deed

Exhibit-I Certified copy of judgment

dated 23.07.1979

Exhibit-I/1 Certified copy of judgment

dated 17.02.1979

Exhibit-J Certified copy of the

proceeding

Exhibit—K Certified copy of the deposition

of the plaintiff dated

25.07.1977

18. Findings of the learned trial court is as under:-

“Issue No.:-4

This issue on the point of valuation has already been decided

and disposed of vide this court’s order dated 23.11.1981.

Issue No. 5 and 6

............... On the basis of the discussion above, I find that the

sale deed dated 21.02.1973 Exhibit-c/1 and sale deed dated

7.05.1976 Exhbit-C executed by Budhan Mahto and Mangar

Mahto defendant Nos. 1 and 2 in favour of Lakhan Lal

defendant No.3 are not valid and not binding upon the

plaintiff. Budhan and Mangar Mahto can not be treated as

legally and validly adopted sons of Ganesh Mahto. They have

not derived any right and interest through the partition deed

dated 29.01.1946 and as such they had no power to transfer

by sale the lands through the sale deed dated 07.05.1976 and

21.02.1973. I find that the plaintiff has never consented

expressly or impliedly for such sale. Nowhere in his evidence,

D.W. 3 has stated that before the purchase, he used due

diligence and took reasonable care to ascertain that Budhan

Mahto and Mangar Mahto had got power to sale the lands in

2026:JHHC:16061

26

khata No. 11. If he had enquired about the adoption or the

partition from the plaintiff or from the villagers on from some

one else, he would have easily discovered that whether

Budhan and Mangar Mahto had got power to sell the lands or

not. Rather scrupulously using his brain initiated a criminal

case (Exhibit-1) against some Arjun Mahto and tried to

establish his possession over the suit lands by twisting the

provisions of law and to defraud the plaintiff by keeping him

in total darkness. I find that these sale deeds exhibits C and

C/1 have in no way affected the title of the plaintiff over the

lands covered by these sale deeds. These issues therefore are

disposed of in favour of the plaintiff.

Issue No. 3:-

“The defendants have hotly contested the case in the point of

limitation and adverse possession. It has been contended by

the defendants that the suit itself is barred by Art. 59 of the

Limitation Act which provides 3 years limitation for

cancellation or setting aside an instrument.

The relief prayed by the plaintiff in this suit is that the sale-

deeds dt. 21.2.73 and 7.5.76 executed by defendants 1 & 2 in

favour of def. no. 3 is illegal and void, not binding upon him

and has not affected his title nor the lands covered by these

sale-deeds. He has also prayed for the confirmation of the

possession, and if found dispossessed pending the suit, he has

prayed for Khas possession by evicting deft. No. 3.

In this case the plaintiff Bhakti Mahto is not a party in

any of the sale-deeds dated 21.2.73 and 7.5.76. These

instruments therefore cannot be cancelled or set aside by the

plaintiff. In Unni Vs. Kunchi Amma (1890) 14 Mad., their

Lordships have quoted, that,

“If a person not having authority to execute a deed, or

having such authority under certain circumstances which

did not exist, executes a deed, it is not necessary for

persons who are not bound by it to sue to set it aside, for it

cannot be used against them. They may treat it as non-

existent and sue for their right as if it did not exist.”

The plaintiff Bhakti Mahto may, if these instruments are

likely to cast cloud upon his title, get a declaration under sec.

34 of the Specific Relief Act. He is not bound to sue for such a

declaration and his failure to do so will not affect the

enforcement of his rights.

In this suit the plaintiff has prayed that the sale-deeds be

declared void and that his title over the suit lands has not been

affected by the sale deeds. He has also prayed for

2026:JHHC:16061

27

confirmation of possession and Khas possession by

dispossessing deft. No. 3.

Apparently, the primary relief sought by the plaintiff is

possession over the suit lands by dispossessing deft. No. 3. The

plaintiff who is not a party to these instruments is not bound to

sue to set aside or declare void these instruments. But as the

plaintiff has prayed to declare these void, it may be treated as

an ancillary prayer. As per Straight J. reported in (1882) 5

All. 76 (79), where in a suit for possession, cancelling or

setting aside an instrument is purely incidental in granting the

relief for possession through suit in its essence and substance

is one for the recovery of immovable property and Art. 144

(Art. 65 of the new Act) and not Art. 91 (Art. 59 of the new

Act) applies. In this suit the primary relief seeking khas

possession of the plaintiff over the suit lands by dispossessing

deft. No. 3 with a declaration that the said sale deeds are void

being an ancillary relief and that these have not affected the

title of the plaintiff over the suit lands is a suit for possession

of immovable property based on title and the suit will be

governed by Art. 65 of the Limitation Act with a limitation

period of 12 years. The sale deeds have been executed on

21.2.73 and 7.5.76. This suit filed on 17.6.80 has been filed

well within the limitation period of 12 years.

The claim of the defendants that they have acquired

adverse possession by virtue of the said sale deeds Exhibit-C

and C/1 is therefore, not tenable.

The defendants have filed certain rent receipts- Exhibit D to

D/8 and Exhibit G to Exhibit G/. Deft. No.3 has filed D/7 and

D/8 rents paid from 75 to 79 for the lands in suit. For this I

would like to quote the observation of their lordships is Smt.

Purni Devi vs Shibu Mahton reported in AIR 1971 Pat 249-

“Entries in Khatian as to occupation of particular person

raises a presumption as to continuity of possession of that

person and that presumption is not materialized by

payment of rent by someone else”.

Exhibit-2, the Khatian shows that the name of Ganesh Mahato

the father of the plaintiff as recorded tenant. No better, legal,

or credible documents have been produced by the defendants

to rebut this presumptive evidence to show their adverse

possession over the suit lands.

This issue therefore is disposed in favour of the plaintiff.

Issue No. 1, 2 and 7:-

On the basis of the discussion above, evidences produced by

both the parties and facts and circumstances of the case, I find

2026:JHHC:16061

28

that the plaintiff has got valid cause of action and the suit is

maintainable in its present form.”

19. Thus, the learned trial court held that -

a. Defendant nos. 1 and 2 cannot be treated as legally and

validly adopted sons of Ganesh Mahto.

b. Defendant no. 1 and 2 have not derived any right and

interest through the partition deed dated 29.01.1946 and

as such they had no power to transfer by sale the lands

through the sale deeds dated 07.05.1976 and 21.02.1973.

The plaintiff has never consented expressly or impliedly

for such sale.

c. The sale deed dated 21.02.1973 (Exhibit-C/1) and sale

deed dated 7.05.1976 (Exhibit-C) executed by defendant

Nos. 1 and 2 in favour of defendant No.3 are not valid and

not binding upon the plaintiff. sale deeds (exhibit C and

C/1) have in no way affected the title of the plaintiff over

the lands covered by these sale deeds.

d. Nowhere in his evidence, D.W. 3 has stated that before the

purchase, he used due diligence and took reasonable care

to ascertain that Budhan Mahto and Mangar Mahto had

got power to sell the lands in khata No. 11.

e. The defendants have hotly contested the case in the point

of limitation and adverse possession. It has been

contended by the defendants that the suit itself is barred by

Art. 59 of the Limitation Act which provides 3 years

limitation for cancellation or setting aside an instrument.

f. The relief prayed by the plaintiff in this suit is that the sale

deeds dated 21.02.1973 and 07.05.1976 executed by

defendant nos. 1 & 2 in favour of defendant no. 3 are

illegal and void, not binding upon him and have not

affected his title over the lands covered by these sale-

deeds. He has also prayed for the confirmation of the

possession, and if found dispossessed pending the suit, he

has prayed for Khas possession by evicting defendant No.

3.

g. In this case, the plaintiff Bhakti Mahto is not a party in

any of the sale-deeds dated 21.02.1973 and 07.05.1976.

These instruments therefore cannot be cancelled or set

aside by the plaintiff.

h. The plaintiff Bhakti Mahto may, if these instruments are

likely to cast cloud upon his title, get a declaration under

section 34 of the Specific Relief Act. He is not bound to

sue for such a declaration and his failure to do so will not

affect the enforcement of his rights.

2026:JHHC:16061

29

i. Apparently, the primary relief sought by the plaintiff is

possession over the suit lands by dispossessing defendant

No. 3. The plaintiff who is not a party to these instruments

is not bound to sue to set aside or declare void these

instruments. But as the plaintiff has prayed to declare

these void, it may be treated as an ancillary prayer.

j. Where in a suit for possession, cancelling or setting aside

an instrument is purely incidental in granting the relief for

possession through suit in its essence and substance is one

for the recovery of immovable property and Art. 144 (Art.

65 of the new Act) and not Art. 91 (Art. 59 of the new Act)

applies.

k. In this suit the primary relief is seeking khas possession of

the plaintiff over the suit lands by dispossessing deft. No. 3

with a declaration that the said sale deeds are void being

an ancillary relief and that these have not affected the title

of the plaintiff over the suit lands. The suit is for

possession of immovable property based on title and the

suit will be governed by

Article 65 of the Limitation Act with a limitation period of

12 years.

l. The sale deeds have been executed on 21.02.1973 and

07.05.1976. This suit filed on 17.06.1980 has been filed

well within the limitation period of 12 years.

m. The claim of the defendants that they have acquired

adverse possession by virtue of the said sale deeds

Exhibit-C and C/1 is therefore, not tenable.

n. The court also considered the rent receipts filed by the

defendants. The defendants have filed certain rent

receipts- Exhibit D to D/8 and Exhibit G to Exhibit G/2.

Defendant No.3 has filed Exhibits D/7 and D/8 which are

the rent receipts for the rents paid from 1975 to 1979 for

the lands in suit.

On the basis of an earlier judgement, the court observed

that entries in Khatian as to occupation of particular

person raises a presumption as to continuity of possession

of that person and that presumption is not materialized by

payment of rent by someone else.

The court recorded that Exhibit-2, the Khatian shows that

the name of Ganesh Mahto, the father of the plaintiff, has

been shown as the recorded tenant and the defendants

have not produced any better legal, or credible documents

to rebut this presumptive evidence to show their adverse

possession over the suit lands.

2026:JHHC:16061

30

Thus, the court discarded the plea of possession raised by

the defendants on the basis of the rent receipts as the

khatiyan was running in the name of Ganesh Mahto, the

father of the plaintiff.

20. The learned trial court decreed the suit by holding that the

defendant no. 1 and 2 did not derive any right out of the deed of

partition of the year 1946 as they had no right over the property of 2

nd

husband of their mother and hence the sale deeds executed by them in

favour of the defendant no. 3 were void and not binding upon the

plaintiff who was the biological son of Ganesh Mahto; the story of

adoption of defendant no. 1 and 2 by Ganesh Mahto was rejected; the

suit seeking recovery of possession was to be governed by Article 65

of the Limitation Act and the period of limitation would be 12 years

and the plea of the defendants that they were in possession on the

strength of rent receipts was rejected by observing that the Khatiyan

was still running in the name of Ganesh Mahto , father of the plaintiff

and mere payment of rent by the defendants had no bearing in the

matter.

21. The learned 1

st

appellate court recorded that in appeal the

finding of the learned court was challenged on the ground that suit

was barred by limitation as it was filed after 3 years of the execution

of alleged two sale deeds Exhibits C and C/1, and also on the ground

that the defendant nos. 1 and 2 and defendant no. 3, purchaser from

defendant no. 1 and 2, have also acquired right by adverse possession

on the basis of the alleged illegal document of partition of the year

1946 which is Exhibit- H and since defendant no. 1 and 2 continued

to be in possession for more than 12 years adversely to the title of the

plaintiff, hence, defendant nos. 1 and 2 acquired indefensible right and

the purchaser also acquired that right by purchase.

22. The learned 1

st

appellate court has recorded its findings from

paragraph 7 to paragraph 13 and, inter alia, held as follows: -

7. So far as point of limitation is concerned, the learned court

below has held that Article 59 of the limitation Act is not

applicable in this case and the suit would be governed by

2026:JHHC:16061

31

Article 65 of the Limitation Act. So far as the applicability of

Article-59 is concerned, I agree with the learned court below

that this Article 59 is not applicable in the present case

because that Article prescribes limitations of 3 years for

cancellation or setting aside an instrument or decree or for

recession of a contract. From the perusal of the relief in the

plaint, I find no such prayer for cancellation of the sale deed

dated 22.02.73 and 7.05.76. But there is a clear prayer for

declaration that the two sale deeds are illegal and void. And

for mere declaration regarding document, in my opinion,

Article 58 of the new limitation Act will apply in which period

of 3 years limitation has been prescribed from the time when

the right to sue first accrues. Therefore, the right to get such

declaration arose immediately after the execution of the two

sale deeds Exhibit-C and C-1 of the year 1973 and 1976.

Thus, so far as the declaration of the two sale deeds are

concerned, in my opinion, the claim of the plaintiff is time

barred and hit by law of limitation as the suit has been filed

after three years of the execution of the deed. No doubt,

Article 65 will apply so far as demand for recovery of

possession or confirmation of possession is concerned and for

that 12 years limitation is prescribed. But in the present case,

I would like to discuss the case of the defendant that the suit is

barred by law of limitation on account of the adverse

possession of the defendants.

8. The learned advocate on behalf of the respondent has given

a short written submission and alleged in paragraph 1 that the

defendant-appellant have not pleaded adverse possession. But

I find that in paragraph 5 of the written statement it is clearly

stated that the suit is barred by law of adverse possession as

the suit land was firstly in cultivating possession of defendant

No. 1 and 2 and since the year 1973, it came in cultivating

possession of defendant No.3. It is to be borne in mind that in

para 6 of the plaint it is written that the plaintiff attained

majority in the year 1950 after death of Nirsi and after

attaining majority the plaintiff entered into khas cultivating

possession of all the lands of khata No.11. It clearly shows

that before attaining majority in the year 1950 plaintiff was

not in khas possession of the suit land or any land. There is no

dispute that Ganesh Mahto had died in the year 1942 and in

the year 1946 Exhibit-H a registered ‘Batwarnama’ deed was

executed by Most Nirsi, the mother of the plaintiff and

admittedly, at that time the plaintiff was a minor and in that

registered partition deed schedule of lands allotted in favour

of Budhan Mahto and Mangar Mahto have been shown and

2026:JHHC:16061

32

schedule of lands falling in share of plaintiff has also been

given and the rents has been also shown. This partition deed

in a way purported to create a title in favour of defendant No.

1 and 2 who were born to Most. Nirsi from her first husband

Uttim Mahto. In my opinion, the Article 60 of new Limitation

Act will also apply in the present case, because the guardian

of the minor plaintiff is transferring or alienating the interest

of the plaintiff to the extent of 8 annas in favour of her sons

from previous husband. So, this registered partition deed

which appears to me to be a really a transfer deed had to be

challenged after 3 years of 1950 when the plaintiff had

admittedly attained majority. It not only purported to have for

8 anna interest but also put defendant No.1 and 2 in

possession of suit land.

9. The learned advocate on behalf of the appellant has argued

that even on the basis of a wrong and illegal document if the

party came in possession, adverse possession against the real

owner will start running. I find force in this contention. The

admitted case of the plaintiff is that Nirsi died in the year 1949

and plaintiff attained majority in the year 1950 and then he

came in possession. So it is clear that after death of the father

Ganesh Mahto these defendants had been in possession of the

suit property along with mother and after the death of Nirsi in

the year 1949, and prior to the attainment of majority of the

plaintiff, in the year 1950 these defendants remained in

exclusive possession of the suit property, if they are treated to

be stranger to that family of the plaintiff. So in any case the

adverse possession of the defendant No. 1 and 2 started

running from year 1950 to the knowledge of the plaintiff. It is

to be noted that Exhibit-E and I are the judgment of the two

criminal cases u/s 379 IPC in which Bhakti Mahto plaintiff

was complainant and Budhan Mahto and others as well as

defendant No.3 and purchaser were accused and the

allegation was regarding removal of paddy from the land of

complainant and the accused were acquitted. Admittedly, the

proceeding under Section 145 Cr.P.C. was decided in favour

of the defendants and it would be too much for this court to

hold that even after acquittal of the accused in theft case and

their success in 145 Cr.P.C. proceeding the plaintiff continued

in possession of the suit lands. Exhibit-A and B are the two

Bajidawa deeds of the year 1966 in which Budhan Mahto is

party as executant along with Bhakti Mahto plaintiff and there

is recital that after death of Ganesh Mahto, the executants are

coming in possession. That would be too much for the plaintiff

to say that Budhan Mahto and Mangar Mahto were not in

2026:JHHC:16061

33

possession of the suit property. It is also significant to mention

that they have also separately executed another Bajidawa in

form of the sale deed, which is Exhibit-F and in that also, their

father’s name have been mentioned to be Ganesh Mahto and

the voter list Exhibit-E also shows that Budhan Mahto and

Mangar Mahto has been described to be sons of Ganesh

Mahto. It has been argued on behalf of the plaintiff respondent

that admittedly, Budhan Mahto and Mangar Mahto were sons

of Uttim Mahto but borne of Nirsi hence, the wrong entry of

father’s name in those papers will not create any title in

favour of Budhan and Mangar. True it is, but the mention of

the names of Budhan and Mangar in several registered deeds

in which the plaintiff is himself a party will go to show that the

defendants were also in possession of the suit property. And

from his own conduct the plaintiff would be estopped from

challenging the possession of defendant No. 1 and 2. This

would be a case of estoppel by conduct.

10. The learned advocate on behalf of the appellant has

submitted that he learned court below has rejected the

adoption story as it was not according to the Hindu Law and

he is not very much eager to press the point of adoption of

defendant No.1 and 2 by their adoptive father Ganesh Mahto,

but however, the fact that these two defendants were brought

in the family of the plaintiff at the time of marriage of Nirsi

with Ganesh Mahto cannot be treated lightly or ignored.

Therefore, the recital in the partition deed Exhibit-H that

partition is being effected by the mother guardian only to

fulfill the last wishes of the deceased father cannot at all be

ignored and rejected. AIR 1936 Privy Council page 264 is lays

down that father can make partition without the consent of

sons and partition is binding on sons. Had this lady any foul

intention and soft corner for the sons of her previous husband

she could have divided the properties in 3 equal shares for

their sons because at that time plaintiff was minor and there

was no one to object to the action of the lady guardian of

minor and therefore, I am not inclined to impute any foul or

bad intention in the mind of that lady Most. Nirsi in the year

1946. Further, I will like to refer to the evidence of P.W. 4

Arjun Mahto in this respect. He is aged 80 years and is

resident of village-Taratand. In para 7 of his evidence he has

said that he had participated in the marriage of Ganesh

Mahto and had attended the Barat which was organized with

full pomp and grandeur. Ganesh Mahto had brought two sons

from that place; one was 14 or 15 years old and another was

10 to 12 years old and Bhakti Mahto was born 4 years or 5

2026:JHHC:16061

34

years after that marriage. So if the sons also came with

mother and remained in the family of the adoptive father, the

desire of the father for giving half lands to the two sons of his

newly married wife from the previous husband, can not be

deemed to be fantastic and imaginary story and as defendant

No.1 and 2 were inducted in their new step father’s family,

hence, every where in the documents the father of defendant

No.1 and 2 has been described to be Ganesh Mahto.

Therefore, I am of opinion, that the defendant No.1 and 2

came in possession of the suit property in the year 1946 even

adversely to the interest of the plaintiff and they remained in

possession for more than 12 years and acquired valid title.

11. There is yet another circumstance to be considered in this

case. P.W. 1 Bhakti Mahto has admitted in paragraph 1 of his

evidence that after marriage with Ganesh Mahto Nirsi had

brought her two sons from previous husband Uttim Mahto

with her and Ganesh Mahto told her to keep them together or

jointly, and thereafter, this witness as well as his sister was

born from Nirsi Devi. So it clearly indicates that Mangar and

Budhan were kept in the family of the plaintiff with consent

and previous permission of his father Ganesh Mahto. Further

in paragraph 5 of his evidence this witness has stated that

Nirsi Devi had sympathy with Budhan and Mangar. Therefore,

she created document of share in favour of the defendant No.1

and 2 with respect to the land of khata No.11. He clearly

refers to Exhibit-H the ‘Batwaranama’ paper and he himself

calls this document as instrument creating share in favour of

Budhan and Manger. He has further stated in paragraph 6

that this Nirsi Devi had no right to create a share in favour of

Budhan and Mangar in the lands of Khata No.11 and Budhan

and Mangar could not get any share or title on the basis of

that document. Therefore, he clearly admits, this fact of illegal

transfer of half of the property of Khata No.11 by the mother

guardian and as such in my opinion, as I have earlier

referred, Article 60 of the new Limitation Act will apply in this

case, but that document Exhibit-H was not challenged after

eight years of attaining his majority in the year 1950.

12. Further in his evidence he has admitted that on the basis

of that paper creating share in favour of defendant they

(defendants) did not claim the land. It also goes to show that

they claimed and are claiming title in the land at present also

on the ground of adverse possession as well and their

possession had already started in the year 1946 adversely on

the basis of the alleged illegal partition deed Exhibit-H. It is to

be also considered that in para 10 of his evidence, P.W.1 has

2026:JHHC:16061

35

stated that after attaining ‘Hosh’ in the year 1950 he is in

exclusive possession of the lands of Khata No.11. But not a

single rent receipt has been produced to prove this fact. It has

been argued on behalf of the plaintiff-respondent that rent was

paid in the name of Ganesh Mahto upto 1964, which fact has

been admitted by the defendant in written statement, hence no

adverse inference should be drawn for non-production of rent

receipts. But in my opinion, the production of receipt would

have shown as to who actually was paying rent in the name of

Ganesh Mahto. This would be a circumstance to show

physical possession of the parties concerned. In page 6 of his

evidence before the commencement of para 53 it has been said

by this witness that he always got the receipt issued. But from

the non-production of receipt by him adverse inference must

be drawn against the actual physical possession over the

entire land. In para 48 of his evidence in page 5 he has denied

the suggestion that his statement regarding payment of rent by

him alone is false. This falsify of his evidence stands proved by

the three rent receipts Exhibit-G, G-1, and G-2 filed on behalf

of the defendants. These rent receipts are in the name of

Budhan Mahto with respect to 5.41 acres of land of Khata No.

11/4 of mauja. Taratand. Exhibit-G-2 the rent receipt was

issued in the year 1969. With respect to the rent of one year

68-69. By receipt Exhibit-G the rent was paid by Budhan

Mahto for the year 1969-70 and 70-71 and by the rent Exhibit-

G-1 of the year 1975 rent upto 1975 was paid by Budhan

Mahto and receipt was issued in his name. Exhibit D series

the rent receipts appears to have been issued in the name of

purchaser and Exhibit-D/6 the rent receipt in the name of

Lakhan Lal there is mentioned of mutation case No. 60 /61 of

the year 1966-67. Therefore, in view of these rent receipts in

the name of Budhan and purchaser and in absence of any rent

receipt produced on behalf of the plaintiff I am not at all

prepared to accept that the plaintiff Bhakti Mahto is in

possession of the suit land and continued in possession from

the year 1950 onwards and even after the decision of

proceeding under Section 145 Cr.P.C. the plaintiff continued

to be in possession is unworthy of acceptance to me.

13.In para 29 of his evidence the plaintiff has admitted that

after marriage with Ganesh Mahto, Nirsi his mother willingly

kept Mangar and Budhan but he has denied the suggestion

that she was brought up by Ganesh willingly and he was

adopted as a son according to village customs. P.W. 4 Arjun

Mahto who was present in the marriage of Ganesh has also

not the courage to deny the fact that Ganesh Mahto had stated

2026:JHHC:16061

36

at the time of his death to his wife to give 1/2 land to them and

keep them as son. Therefore, there is enough material before

this court to come to the conclusion that by continued

possession of the Budhan and Mangar from 1946 onward till

1973 and of the purchaser defendant No. 3 thereafter

adversely to the title of the plaintiff, the defendant No.1 to 3

acquired indefeasible right over the suit property and as such

the transfer made by defendant No.1 and 2 and in favour of

defendant No.3 who purchased it for valuable consideration

cannot be said to be illegal and void. Therefore, this point is

being decided in favour of the defendant-appellant.

Accordingly, I set aside the judgment and decree of the

learned court below and allow the appeal and dismiss the case

of the plaintiff with cost at the minimum contested scale.”

23. The learned 1

st

appellate court has recorded its findings from

paragraph 7 to paragraph 13 and, inter alia, held as follows: -

a. On the point of limitation, the learned 1

st

appellate court agreed

with the finding of the learned trial court that Article 59 of the

Limitation Act is not applicable in this case and the suit would

be governed by Article 65 of the Limitation Act since no prayer

for cancellation or setting aside of the sale deeds dated

22.02.1973 and 7.05.1976 was made in the suit but there is a

clear prayer for declaration that the two sale deeds are illegal

and void.

b. The appellate court was of the view that Article 58 of the

Limitation Act will apply in which period of 3 years limitation

has been prescribed from the time when the right to sue first

accrues which in the instant case accrued immediately after the

execution of the two sale deeds Exhibit-C and C-1 of the year

1973 and 1976. The 1

st

appellate court held that so far as the

prayer for declaration of the two sale deeds as illegal and void is

concerned, the claim of the plaintiff is time barred as the suit

has been filed after three years of the execution of the deeds.

c. With respect to the relief of recovery of possession, the learned

1

st

appellate court held that Article 65 of the Limitation Act will

apply for which 12 years limitation has been prescribed. But the

2026:JHHC:16061

37

court discussed the case of the defendants that the suit was

barred by law of limitation on account of the adverse possession

of the defendants.

d. The 1

st

appellate court recorded the submissions of the plaintiff

that the defendants had not pleaded adverse possession, but

found that in paragraph 5 of the written statement it was clearly

stated that the suit was barred by law of adverse possession as

the suit land was firstly in cultivating possession of defendant

No. 1 and 2 and since the year 1973, it came in cultivating

possession of defendant No.3.

e. The court also recorded that in paragraph 6 of the plaint it is

written that the plaintiff attained majority in the year 1950 after

death of Nirsi Devi and after attaining majority the plaintiff

entered into khas cultivating possession of all the lands of khata

No.11 and this clearly showed that before attaining majority in

the year 1950, plaintiff was not in khas possession of the suit

land or any land.

f. The learned 1

st

appellate court noted that there is no dispute that

Ganesh Mahto had died in the year 1942 and in the year 1946

Exhibit-H, a registered Batwarnama deed, was executed by

Most. Nirsi, the mother of the plaintiff. Admittedly, at that time

the plaintiff was a minor and in that registered partition deed,

schedule of lands allotted in favour of defendant no. 1 and 2

have been shown and schedule of lands falling in share of

plaintiff has also been given and the rents have been also

shown.

g. The court observed that this partition deed in a way purported to

create a title in favour of defendant Nos. 1 and 2 who were born

to Most. Nirsi from her first husband Uttim Mahto and in the

opinion of the court, the Article 60 of the Limitation Act will

also apply, because the guardian of the minor plaintiff

transferred or alienated the interest of the plaintiff to the extent

of 8 annas in favour of her two sons from previous husband.

2026:JHHC:16061

38

h. The learned court was of the view that this registered partition

deed, which appeared to be really a transfer deed, was required

to be challenged within 3 years of 1950 when the plaintiff had

admittedly attained majority. The registered partition deed not

only purported to have transferred 8 anna interest but also had

put defendant No.1 and 2 in possession of suit land.

i. The 1

st

appellate court agreed with the submission of the

defendants that even on the basis of a wrong and illegal

document if the party came in possession, adverse possession

against the real owner will start running. The admitted case of

the plaintiff is that Nirsi Devi died in the year 1949 and plaintiff

attained majority in the year 1950 and then he came in

possession. So, it is clear that after death of the father Ganesh

Mahto, defendant nos. 1 and 2 had been in possession of the suit

property along with one another and after the death of Nirsi in

the year 1949, and prior to the attainment of majority of the

plaintiff, in the year 1950 these defendants remained in

exclusive possession of the suit property, if they are treated to

be stranger to the family of the plaintiff.

j. The 1

st

appellate court held that in any case the adverse

possession of the defendant No. 1 and 2 started running from

year 1950 to the knowledge of the plaintiff.

k. The court referred to Exhibit-E which were the judgments of the

two criminal cases under Section 379 Indian Penal Code in

which Bhakti Mahto (plaintiff) was complainant and defendants

were accused and the allegation was regarding removal of

paddy from the land of complainant and the accused were

acquitted. The court observed that admittedly, the proceeding

under Section 145 Cr.P.C. was decided in favour of the

defendants and it would be too much for the court to hold that

even after acquittal of the accused in theft case and their success

in section 145 Cr.P.C. proceeding, the plaintiff continued in

possession of the suit lands.

2026:JHHC:16061

39

l. The court also referred to Exhibit-A and B, the two Bajidawa

deeds of the year 1966, in which Budhan Mahto (defendant

no.1) is party along with the plaintiff and there is recital that

after death of Ganesh Mahto, the executants were in possession.

That would be too much for the plaintiff to say that defendant

no. 1 and 2 were not in possession of the suit property. The

defendants have also separately executed another Bajidawa in

form of the sale deed, which is Exhibit-F and in that also, their

father’s name have been mentioned as Ganesh Mahto and the

voter list Exhibit-E also shows that defendant no. 1 and 2 have

been shown as sons of Ganesh Mahto. The court held that the

mention of the names of defendant no. 1 and 2 in several

registered deeds, in which the plaintiff is himself a party, will go

to show that the defendants were also in possession of the suit

property and from his own conduct, the plaintiff would be stopped

from challenging the possession of defendant No. 1 and 2. This

would be a case of estoppel by conduct.

m. The 1

st

appellate court recorded a finding that the defendant

Nos.1 and 2 came in possession of the suit property in the year

1946 even adversely to the interest of the plaintiff and they

remained in possession for more than 12 years and acquired

valid title.

n. P.W. 1 Bhakti Mahto has admitted that defendant nos. 1 and 2

were kept in the family of the plaintiff with consent and

previous permission of his father Ganesh Mahto. P.W-1 also

stated that the mother, Nirsi Devi, had sympathy with defendant

nos.1 and 2 and therefore, she created document of share in

favour of the defendant Nos. 1 and 2 over the land of khata

No.11. The learned 1

st

appellate court has recorded that the

P.W-1 has clearly referred to Exhibit-H the ‘Batwaranama’

paper and he himself stated that this document was instrument

creating share in favour of defendant no. 1 and 2. P.W-1 has

further stated that Nirsi Devi had no right to create a share in

favour of defendant no. 1 and 2 and defendant no.1 and 2 could

2026:JHHC:16061

40

not get any share or title on the basis of that document. The 1

st

appellate court recorded that therefore, the plaintiff clearly

admitted the fact of illegal transfer of half of the property of

Khata No.11 by the mother guardian and as such was of the

opinion, that Article 60 of the Limitation Act will apply in this

case, but the document by which ½ portion was given to the

defendant no. 1 and 2, Exhibit-H, was not challenged by the

plaintiff even after eight years of attaining his majority in the

year 1950.

o. The learned 1

st

appellate court recorded that plaintiff has

admitted that on the basis of the paper creating share in favour

of defendants, they (defendants) did not claim the land. On this

basis the learned 1

st

appellate court recorded that this also goes

to show that defendants claimed and are claiming title in the

land also on the ground of adverse possession and their

possession had already started in the year 1946 and adversely

on the basis of the alleged illegal partition deed Exhibit-H.

p. The 1

st

appellate court discussed the oral evidences and also the

various rent receipts placed on record and recorded a finding

that in view of these rent receipts in the name of Budhan and

purchaser and in absence of any rent receipt produced on behalf

of the plaintiff, the court was not at all prepared to accept that

the plaintiff Bhakti Mahto was in possession of the suit land and

continued in possession from the year 1950 onwards and even

after the decision of proceeding under Section 145 Cr.P.C.

which was decided against the plaintiff , the plaintiff continued

to be in possession was unworthy of acceptance.

q. The learned court also observed that there was enough material

before the court to come to the conclusion that by continued

possession of Budhan and Mangar from 1946 onwards till 1973

and of the purchaser defendant No. 3 thereafter adversely to the

title of the plaintiff, the defendant Nos.1 to 3 acquired

indefeasible right over the suit property and as such the transfer

2026:JHHC:16061

41

made by defendant No.1 and 2 in favour of defendant No.3 who

purchased it for valuable consideration could not be said to be

illegal and void.

r. The learned 1

st

appellate court set aside the judgment and

decree of the learned trial court and allowed the appeal and

dismissed the case of the plaintiff.

Substantial question of law no.(iii) – Whether any relief can be

granted to the appellants when the appeal has abated as against

respondent nos. 4 and 8?

24. The suit was essentially filed seeking a declaration that sale-

deeds dated 21.02.1973 and 07.05.1976 executed by defendant nos. 1

and 2 in favour of defendant no. 3 are void and do not affect the title

of the plaintiff, which is subsisting. Defendant nos. 1 and 2 were the

sons of Nirsi Devi through her 1

st

husband and the plaintiff was the

son of Nirsi Devi through her 2

nd

husband. The property belonged to

the 2

nd

husband of Nirsi Devi and hence the plaintiff claimed

exclusive title and to the exclusion of his uterine brothers, defendant

nos. 1 and 2.

25. The property belonged to the 2

nd

husband of Nirsi Devi, who in

total had 11.04 acres of land in khata no. 11 and the suit property was

only a portion of the same having total area 1.23 acres covered by the

aforesaid two sale-deeds dated 21.02.1973 and 07.05.1976 which was

subject matter of the suit and both the sale-deeds were executed by

defendant nos. 1 and 2 in favour of defendant no. 3.

26. The defendant nos. 4 to 9 had filed separate written statement,

though in line with the written statement of defendant nos. 1 to 3, but

had additionally raised a plea that there was mis-joinder of necessary

parties so far as defendant nos. 4 to 9 are concerned, as no relief was

prayed for against defendant nos. 4 to 9.

27. The respondent no. 4 in the present case is Abdul Karim who

was defendant no. 5 in the suit. Further, the respondent no. 8 in the

present case is Falguneshwar Mahto who was defendant no. 9 in the

suit. Since no relief was prayed as against defendant no. 5 (respondent

2026:JHHC:16061

42

no. 4) and defendant no. 9 (respondent no. 8) in the suit itself,

therefore, the appeal having been abated as against them, has no

bearing in the matter.

28. It is also important to note that the suit stood dismissed as

against respondent no. 8 on account of non-compliance of order

passed by this Court which was passed way back in the year 1998 and

the application seeking restoration of 2

nd

appeal with respect to

respondent no. 8 was dismissed on account of limitation and the order

refusing to restore the 2

nd

appeal as against the respondent no.8

attained finality up-till the Hon'ble Supreme Court.

Accordingly, the substantial question of law no. (iii) is hereby

answered by holding that in spite of the fact that the 2

nd

appeal as

against respondent nos. 4 and 8 has abated, there is no impediment

in granting relief to the appellants in this 2

nd

appeal on account of

appeal having been abated against respondent no. 4 and 8.

29. It is also important to note that defendant no. 1, son of Nirsi

Devi through her 1

st

husband had expired during the pendency of the

suit and his name was expunged vide order dated 12.05.1982. The

defendant no. 2 namely, Mangar Mahto is also the son of Nirsi Devi

through her 1

st

husband and admittedly, the two sale-deeds involved in

the present case were executed jointly by defendant nos. 1 and 2 in

favour of defendant no. 3.

30. Defendant no. 2, who was arrayed as respondent no. 1 in the

present case, also died during the pendency of this 2

nd

appeal and was

substituted vide order dated 29.02.1996 by respondent nos. 1(a) and

1(b). However, the records of the case reveal that the appeal stood

abated as against deceased respondent nos. 1(a) and 1(b) vide order

dated 06.11.2025. It is important to note that on account of abatement

in connection with the respondent nos. 1(a) and 1(b), the

estate/interest of defendant nos. 1 and 2 is completely unrepresented

and the impugned judgment had attained finality qua the defendant no.

2. It is important to note that the name of defendant no. 1 was struck

off from the cause-title at the stage of the suit on account of his death

2026:JHHC:16061

43

and the defendant no. 2 being full brother of defendant no.1 and also

co-executant of the two sale-deeds involved in the present case and

both of them having filed common written statement, the estate of the

vendor with respect to the sale-deeds was duly represented before the

court. As of now, neither the defendant nos. 1 and 2 nor their legal

heirs are on record and the judgment and decree has become final so

far as defendant nos. 1 and 2/their legal heirs are concerned.

31. The core dispute involved in this case is as to whether the

defendant nos. 1 and 2 had a valid title over the suit property and

accordingly whether they were entitled to execute the sale-deeds in

favour of the defendant no. 3. The learned 1

st

appellate court has held

that challenge to the two sale-deeds involved in this case executed by

defendant nos. 1 and 2 in favour of the defendant no. 3 was barred by

limitation. The 1

st

appellate court also held that the plaintiff remained

dispossessed from the suit property even after the plaintiff gained

majority in the 1950 by virtue of alienation (1/2 share of the property

of Ganesh Mahto) by the mother, Nirsi Devi vide registered

Batwaranama of the year 1946 in favour of the defendant no. 1 and 2

and the plaintiff did not take any steps to challenge the registered

Batwaranama of the year 1946 and his suit for recovery of possession

was barred by limitation under Article 65 of the Limitation Act. This

finding in favour of defendant no. 2 (name of the defendant no.1 was

already struck off) having attained finality as defendant no.2 has not

been substituted, if any contrary view is taken by this Court, that

would give rise to a conflicting decree which is not permissible under

law. None of the other defendants can be said to be representing the

estate/interest of defendant nos. 1 and 2 in the present case.

32. In the aforesaid circumstances, while deciding this 2

nd

appeal,

aforesaid aspect of the matter cannot be lost sight of and

accordingly, it is held that the entire appeal has abated on account

of non-substitution of defendant no.2 and technically no relief can

be granted to the appellants representing the plaintiff before this

Court.

2026:JHHC:16061

44

Substantial question of law no. (i)

Whether the suit in the present form for declaration is

having any question related to the adverse possession as

claimed from the side of defendant nos. 1 and 2?

33. In paragraphs 14 and 15 of the judgment reported in (1995) 2

SCC 543 (Supra), it has been held that under Article 65 of the

schedule to the Limitation Act, 1963, it prescribes the limitation for

possession of immovable property or any interest therein based on title

and the limitation of 12 years begins to run from the date the

defendant’s interest becomes adverse to the plaintiff. It has also been

held that adverse possession means a hostile assertion i.e. a possession

which is expressly or impliedly in denial of title of the true owner. It

has also been held that where the possession can be referred to a

lawful title, it will not be considered to be adverse and the reason

being that a person whose possession can be referred to a lawful title

will not be permitted to show that his possession was hostile to

another's title. Paragraphs 14 and 15 of the aforesaid judgment are

quoted as under:

“14. Article 65 of the Schedule to the Limitation Act, 1963

prescribes that for possession of immovable property or any

interest therein based on title, the limitation of 12 years begins to

run from the date the defendant's interest becomes adverse to the

plaintiff. Adverse possession means a hostile assertion i.e. a

possession which is expressly or impliedly in denial of title of the

true owner. Under Article 65, burden is on the defendants to

prove affirmatively. A person who bases his title on adverse

possession must show by clear and unequivocal evidence i.e.

possession was hostile to the real owner and amounted to a denial

of his title to the property claimed. In deciding whether the acts,

alleged by a person, constitute adverse possession, regard must be

had to the animus of the person doing those acts which must be

ascertained from the facts and circumstances of each case. The

person who bases his title on adverse possession, therefore, must

show by clear and unequivocal evidence i.e. possession was

hostile to the real owner and amounted to a denial of his title to

the property claimed.

15. Where possession can be referred to a lawful title, it will not

be considered to be adverse. The reason being that a person

whose possession can be referred to a lawful title will not be

permitted to show that his possession was hostile to another's title.

One who holds possession on behalf of another, does not by mere

2026:JHHC:16061

45

denial of that other's title make his possession adverse so as to

give himself the benefit of the statute of limitation. Therefore, a

person who enters into possession having a lawful title, cannot

divest another of that title by pretending that he had no title at

all.”

34. Further, in the same judgment, it has been held in paragraph 16

that in case of Hindu joint family, there is community of interest and

unity of possession amongst all the members of the joint family and

mere fact that one of the coparceners is not in joint possession does

not mean that he has been ousted. The possession of the family

property by a member of the family cannot be adverse to the other

members but must be held to be on behalf of himself and other

members and thus, the possession of one is the possession of all. It has

been held that the burden lies heavily on the member setting up

adverse possession to prove adverse character of his possession by

establishing affirmatively that to the knowledge of other member he

asserted his exclusive title and the other members were completely

excluded from enjoying the property and that, such adverse possession

had continued for the statutory period of 12 years. Paragraph 16 of the

aforesaid judgment is quoted as under:

16. In the case of a Hindu joint family, there is a community of

interest and unity of possession among all the members of the

joint family and every coparcener is entitled to joint possession

and enjoyment of the coparcenary property. The mere fact that

one of the coparceners is not in joint possession does not mean

that he has been ousted. The possession of the family property by

a member of the family cannot be adverse to the other members

but must be held to be on behalf of himself and other members.

The possession of one, therefore, is the possession of all. The

burden lies heavily on the member setting up adverse possession

to prove adverse character of his possession by establishing

affirmatively that to the knowledge of other member he asserted

his exclusive title and the other members were completely

excluded from enjoying the property and that such adverse

possession had continued for the statutory period. Mutation in the

name of the elder brother of the family for the collection of the

rent and revenue does not prove hostile act against the other. The

right of the plaintiff to file suit for partition had arisen after the

Act has come into force and re-grant was made by the Collector

under sub-section (1) of Section 5. The defendant, therefore, must

plead and prove that after the re-grant, he asserted his own

2026:JHHC:16061

46

exclusive right, title and interest to the plaint schedule property to

the knowledge of the plaintiff and the latter acquiesced to such a

hostile exercise of the right and allowed the defendant to remain

in continuous possession and enjoyment of the property in

assertion of that hostile title during the entire statutory period of

12 years without any let and hindrance and the plaintiff stood

thereby.

35. In the judgment passed by the Hon'ble Supreme Court reported

in (2004) 10 SCC 779 (Supra), the appellants averred that the plea of

the respondent based on title of the suit property and the plea of

adverse possession were mutually exclusive and the finding of the

High Court in the said case that the Government of India had title over

the suit property by way of adverse possession, was assailed. The

Hon'ble Supreme Court held that adverse possession is a hostile

possession by clearly asserting hostile title in denial of the title of the

true owner and held that plea of adverse possession is not a pure

question of law, but a blended one of fact and law and a person, who

claims adverse possession, should demonstrate the basic ingredients

for claiming adverse possession and whenever a plea of adverse

possession is projected, inherent in the plea is that someone else was

the owner of the property. It has been held that the plea of title and

adverse possession are mutually inconsistent and adverse possession

does not begin to operate until the plea of title is renounced. The

paragraphs 11 and 12 of the aforesaid judgment are quoted as under:

“11. In the eye of the law, an owner would be deemed to be in

possession of a property so long as there is no intrusion. Non-use

of the property by the owner even for a long time won't affect his

title. But the position will be altered when another person takes

possession of the property and asserts a right over it. Adverse

possession is a hostile possession by clearly asserting hostile title

in denial of the title of the true owner. It is a well-settled

principle that a party claiming adverse possession must prove

that his possession is “nec vi, nec clam, nec precario”, that is,

peaceful, open and continuous. The possession must be adequate

in continuity, in publicity and in extent to show that their

possession is adverse to the true owner. It must start with a

wrongful disposition of the rightful owner and be actual, visible,

exclusive, hostile and continued over the statutory period.

Physical fact of exclusive possession and the animus

possidendi to hold as owner in exclusion to the actual owner are

2026:JHHC:16061

47

the most important factors that are to be accounted in cases of

this nature. Plea of adverse possession is not a pure question of

law but a blended one of fact and law. Therefore, a person who

claims adverse possession should show: (a) on what date he

came into possession, (b) what was the nature of his possession,

(c) whether the factum of possession was known to the other

party, (d) how long his possession has continued, and (e) his

possession was open and undisturbed. A person pleading adverse

possession has no equities in his favour. Since he is trying to

defeat the rights of the true owner, it is for him to clearly plead

and establish all facts necessary to establish his adverse

possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari

Sharma [(1996) 8 SCC 128].

12. A plaintiff filing a title suit should be very clear about the

origin of title over the property. He must specifically plead it.

In P. Periasami v. P. Periathambi [(1995) 6 SCC 523] this Court

ruled that:

“Whenever the plea of adverse possession is projected,

inherent in the plea is that someone else was the owner of the

property.”

The pleas on title and adverse possession are mutually

inconsistent and the latter does not begin to operate until the

former is renounced. …”

36. In the judgment reported in (2006) 7 SCC 570 (Supra), it has

been held that concept of adverse possession contemplates a hostile

possession i.e., a possession which is expressly or impliedly in denial

of the title of the true owner. Possession to be adverse must be

possession by a person who does not acknowledge the others’ right

but denies them. A person who bases his title on adverse possession

must show by clear and unequivocal evidence that his possession was

hostile to the real owner and amounted to denial of his title to the

property claimed.

37. In the present case, both the parties were claiming title over the

suit property. The plaintiff was in complete denial of the title of the

defendant nos. 1 and 2 and hence title of the defendant no.3 and the

defendant nos. 1 and 2 claimed exclusive title on the basis of

registered Batwarnama of 1946. The registered Batwarnama of 1946

was not specifically challenged in the prayer of the suit but in the body

of the plaint it was asserted that through the registered Batwarnama of

2026:JHHC:16061

48

1946, the mother, Nirsi Devi, had alienated the property of the minor

plaintiff to his uterine brothers, defendant no. 1 and 2 by illegally

terming it a partition and such alienation was not binding on the

plaintiff. The defendant nos. 1 and 2 were claiming title upon

themselves along with the plaintiff by stating that they were adopted

by their step father, Ganesh Mahto and hence they were entitled to

inherit his property along with the plaintiff. The defendant nos. 1 and

2 further claimed exclusive title and possession over ½ share of the

property of Ganesh Mahto, to the exclusion of the plaintiff, on the

basis of registered Batwarnama of 1946. The defendant no. 1 and 2

also claimed possession on the basis of registered Batwarnama of

1946 and claimed adverse possession as the plaintiff was seeking

recovery of possession of the suit property from the defendant no. 3

who had purchased the property from the defendant no. 1 and 2. Since

the plaintiff himself claimed that his property was wrongfully

alienated by his mother through registered Batwarnama of 1946 when

he was a minor and claimed recovery of possession, it was certainly

open to the defendant no. 1 to 3 to assert that the relief seeking

recovery of possession was barred by limitation under

Article 65 of the Limitation Act and thus claim adverse possession.

The claim of title by the defendant no. 1 and 2 was based on their

alleged adoption by their step father Ganesh Mahto and the plea of

adverse possession was based on possession and exclusive title

acquired through registered Batwarnama of 1946. In such

circumstances, it cannot be said that the plea of title and adverse

possession, as claimed by the defendant nos. 1 to 3, were conflicting

to each other. The parties acknowledged the true owner of the

property as Ganesh Mahto and the question was as to whether

alienation/ partition through registered Batwarnama of 1946 conferred

any valid and exclusive title upon the defendant nos. 1 and 2 and

whether the prayer of the plaintiff seeking recovery of possession of

the property was barred by limitation. This court also finds that the

issue on the point of limitation and adverse possession was framed at

2026:JHHC:16061

49

the stage of trial and the point of limitation and adverse possession

was the bone of contention at the 1

st

appellate stage also.

38. The suit was for declaration that the two sale-deeds of the year

1973 and 1976 executed by defendant nos. 1 and 2 in favour of

defendant no. 3 were void and the plaintiff also prayed for

confirmation of possession and if found dispossessed, for recovery of

possession based on his title. In the body of the plaint the plaintiff also

challenged the registered Batwarnama of 1946 executed by his mother

being his guardian as the plaintiff was minor at that point of time and

it is alleged that his mother made false recitals to alienate the ½ share

of the property to his two uterine brothers (defendant no. 1 and 2) and

the plaintiff asserted that registered Batwarnama of 1946 was void

and not binding upon him.

39. This Court finds that the case of the plaintiff was that the

plaintiff being the biological son of Nirsi Devi and Ganesh Mahto (2

nd

husband of Nirsi Devi) and the property admittedly belonging to

Ganesh Mahto, has completely denied the title of the defendant nos. 1

and 2 through succession upon death of Ganesh Mahto on account of

the fact that the defendant nos. 1 and 2 were the sons of Nirsi Devi

through her 1

st

husband. Thus, the plaintiff on the one hand and

defendant nos. 1 and 2 on the other hand, were uterine brothers and

the plaintiff claimed that the property of his biological father could not

have devolved upon his uterine brothers as they did not belong to the

common male ancestor. The specific case was that property of the

father of the plaintiff could not have been allocated to his uterine

brothers, defendant nos. 1 and 2 through the alleged registered

Batwarnama of 1946 and hence the defendant no.1 and 2 had no title

over the suit property to pass to the defendant no.3 while executing the

two sale-deeds involved in the present case.

40. On the other hand, the defendant nos. 1 and 2 claimed that they

were duly adopted by their step father and therefore, they also had

equal rights as that of the plaintiff and they have rightly executed the

sale-deeds and they also claimed that challenge to the sale-deeds was

2026:JHHC:16061

50

barred by limitation. The defendant no. 1 and 2 claimed exclusive title

and possession over the ½ share of the property, which included the

suit property, on the basis of registered Batwarnama of 1946 whereby

½ share of the property belonging to the biological father of the

plaintiff was allocated to the defendant nos. 1 and 2 by the mother,

Nirsi Devi. The defendant nos. 1 to 3 in their written statement took a

stand that the defendant no. 3 was in adverse possession of the suit

land as he has been cultivating the land since 1973 – the date of

execution of the 1

st

sale-deed by defendant nos. 1 and 2 in his favour

and prior to this the defendant no. 1 and 2 were in exclusive

possession by virtue of registered Batwarnama of 1946. It was their

specific case that defendant nos. 1 and 2 were adopted as sons by

Ganesh Mahto – the biological father of the plaintiff. It was their

further case that after death of Ganesh Mahto, the plaintiff along with

defendant nos. 1 and 2 jointly succeeded to the property of Ganesh

Mahato and continued in possession till their mother Nirsi Devi

partitioned the land amongst them by registered Batwarnama of 1946

in the ratio of half-and-half between the plaintiff on the one hand and

defendant nos. 1 and 2 on the other.

41. Thus, the defendant no. 1 and 2 and hence defendant no.3 also

claimed adverse possession as the plaintiff had remained dispossessed

from the suit property and also on account of certain conduct of the

plaintiff while selling the properties other than the suit property. The

suit property was only a portion of the ½ share of the property of

Ganesh Mahato allocated to defendant no. 1 and 2 through registered

Batwaranama of the year 1946.

42. This court finds that the plaintiff had completely denied title of

the defendant no. 1 and 2 and took a stand that no property could have

been allocated to defendant nos. 1 and 2 through registered

Batwaranama of the year 1946 by the mother of plaintiff and the

defendant no. 1 and 2. The plaintiff had also challenged the transfer

through registered Batwaranama of the year 1946 as null and void in

the body of the plaint by asserting that the mother of the plaintiff made

2026:JHHC:16061

51

false recitals in the registered Batwarnama of 1946 and the plaintiff

also claimed recovery of possession of the suit property based on his

title from defendant no.3 as the same was sold to defendant no. 3 by

the defendant no. 1 and 2 by virtue of registered sale deeds of the year

1973 and 1976, alleging that same were null and void.

43. The learned trial court rejected the story of adoption put forth

by the defendant nos. 1 and 2 and held that the defendant nos. 1 and 2

had not derived any title and as such had no power to transfer the

property to defendant no. 3 through sale-deeds dated 07.05.1976 and

21.02.1973 and the sale-deeds were not binding upon the plaintiff. It

was also observed by the learned trial court that the plaintiff was not a

party to the sale-deeds and therefore, it could not be cancelled by the

plaintiff, but he could get a declaration that it is not binding on him

being void.

44. The trial court also observed that the suit in essence and

substance was one for recovery of possession of immovable property

based on title and Article 65 of the Limitation Act would apply and

not Article 59. The trial court held that the suit for recovery of

possession of immovable property based on title will be governed by

Article 65 of the Limitation Act which prescribes a period of 12 years.

The learned Court further observed that the suit was filed within 12

years from the execution of the sale-deeds dated 21.02.1973 and

07.05.1976 as it was filed on 17.06.1980 and held that the suit was not

barred by limitation. The learned trial court also discarded the claim of

the defendants that they were in possession and therefore, held that the

defendants did not produce any credible documents to show their

adverse possession over the suit land.

45. So far as the learned 1

st

appellate court is concerned, the

learned 1

st

appellate court agreed with the learned trial court that

Article 59 of the Limitation Act would not apply and the suit will be

governed by Article 65 of the Limitation Act. Further, the court was of

the view that since the plaintiff was seeking a declaration that the two

sale-deeds dated 21.02.1973 and 07.05.1976 were void, therefore,

2026:JHHC:16061

52

Article 58 of the Limitation Act would apply and held that the suit

having been filed beyond three years from the date of execution of

sale-deeds, the suit seeking declaration that the two sale-deeds were

void, was barred by limitation.

46. However, the learned 1

st

appellate court proceeded further with

regard to applicability of Article 65 of Limitation Act and observed

that for recovery of possession based on title, 12 years limitation was

prescribed and, in that light, discussed the case of the defendants that

the suit was barred by law of limitation on account of adverse

possession of the defendants. The 1

st

appellate Court, after considering

the materials on record, held that the registered partition deed of 1946

was clearly a transfer deed which was required to be challenged within

three years from 1950 when the minor attained majority and referred

to Article 60 of the Limitation Act to hold that the suit was barred

under Article 60 of the Limitation Act. The Court also recorded that

the defendant nos. 1 and 2 were put in possession of ½ share of the

property of Ganesh Mahto by virtue of registered Batwarnama of

1946 and while doing so, the court also took into consideration the

conduct of the parties. The court recorded a clear finding that the

defendant nos. 1 and 2 came in possession of the suit property in the

year 1946 by virtue of the registered Batwarnama of 1946 even

adversely to the interest of the plaintiff and they remained in

possession for more than 12 years and acquired valid title.

Consequently, the point of limitation/adverse possession was

ultimately decided in favour of the defendants and the judgment and

decree of the learned trial court was set-aside.

47. This Court finds that the suit in the present form seeking

declaration and also recovery of possession on the basis of title had

questions related to adverse possession, as claimed from the side of

the defendant nos. 1 and 2, and these questions were decided by the

learned trial court as well as by the learned 1

st

appellate court. The

learned 1

st

appellate court, while reversing the finding of the learned

trial court, clearly held that the plaintiff was dispossessed from the suit

2026:JHHC:16061

53

property [which was part of ½ share of the property of Ganesh Mahto]

way back in the year 1946 by virtue of registered Batwaranama of the

year 1946 and that the defendant nos. 1 and 2 and hence defendant

no.3 acquired title through adverse possession.

48. This court is of the considered view that the suit in the

present form seeking declaration that the sale deeds of the year 1973

and 1976 were null and void and seeking recovery of possession

based on title was certainly having a question related to adverse

possession as claimed from the side of defendant nos. 1 and 2 as the

plaintiff himself claimed that the ½ share of the property of his

biological father Ganesh Mahto was illegally alienated by his

mother by making false recitals through registered Batwaranama of

the year 1946 in favour of the defendant no. 1 and 2. The 1

st

substantial question of law is accordingly decided against the

appellants( plaintiff) and in favour of the respondents (defendant

no. 1 to 3) .

Substantial question of law no. (ii)

Whether the plaintiff’s suit would suffer due to his non-

filing of declaration against the defendant nos. 1 and 2

challenging the Batwaranama of 1946 on attainment of his

majority within three years after 1950?

49. The Hon’ble Supreme Court in the case of Prem

Singh v. Birbal, (2006) 5 SCC 353, discussed the position of law as to

when Article 59 of the Limitation Act, 1963 would apply and also if a

deed was executed by the plaintiff when he was a minor and it was

thereby void then the minor had two options to file a suit to get the

property conveyed thereunder i.e., he could either file the suit within

12 years of the deed or within 3 years of attaining majority. The

observation with regards to rights of a minor and the time stipulated is

certainly referrable to Articles 60 and 65 of the Limitation Act.

50. Article 59, 60 and 65 of the Limitation Act are quoted as under:

Article 59 and 60

Part IV- Suits Relating to Decrees and Instruments

2026:JHHC:16061

54

Description of suit Period of limitation Time from which period

begins to run

59. To cancel or set aside

an instrument or decree or

for the rescission of a

contract.

Three years When the facts entitling

the plaintiff to have the

instrument or decree

cancelled or set aside or

the contract rescinded

first become known to

him.

60. To set aside a transfer

of property made by the

guardian of a ward-

(a) by the ward who has

attained majority

(b) by the ward’s legal

representative-

(i) when the ward dies

within three years from

the date of attaining

majority,

(ii) when the ward dies

before attaining majority.

Three years

Three years

Three years

When the ward attains

majority.

When the ward attains

majority.

When the ward dies.

Article 65

Part V- Suits Relating to Immovable Property

Description of suit Period of

limitation

Time from which period

begins to run

65. For possession of immovable

property or any interest therein

based on title.

Explanation.—For the purposes of

this article—

(a)where the suit is by a

remainderman, a reversioner

(other than a landlord) or a

devisee, the possession of the

defendant shall be deemed to

become adverse only when the

estate of the remainderman,

reversioner or devisee, as the case

may be, falls into possession;

(b) where the suit is by a Hindu or

Muslim entitled to the possession of

immovable property on the death of

a Hindu or Muslim female, the

possession of the defendant shall

be deemed to become adverse only

when the female dies;

Twelve

years

When the possession of the

defendant becomes adverse to

the plaintiff.

2026:JHHC:16061

55

(c)where the suit is by a purchaser

at a sale in execution of a decree

when the judgment debtor was out

of possession at the date of the

sale, the purchaser shall be

deemed to be a representative of

the judgment-debtor who was out

of possession.

51. The judgement passed by the Hon’ble Supreme Court in the

case of Prem Singh v. Birbal, (2006) 5 SCC 353 has been

summarized, quoted and considered in the recent judgement of the

Hon’ble Supreme Court reported in 2025 SCC On Line 1961 (supra)

in the following manner: -

“29. This court in Prem Singh v. Birbal, (2006) 5 SCC 353,

discussed the position of law as to when Article 59 of the

Limitation Act, 1963 would apply and opined as follows: -

i. First, that Article 59 of the Limitation Act, 1963 would only

encompass within its fold fraudulent transactions which are

‘voidable’ transactions and not those that are ‘void’. In other words,

Article 59 would apply only where an instrument is prima facie valid

and not to those instruments which are presumptively invalid.

ii. Secondly, that when the document in question is void ab initio/or

void, a decree for setting aside the same would not be necessary

since such a transaction would be non-est in the eyes of law, owing

to it being a nullity.

iii. Thirdly, a fine distinction was drawn between fraudulent

misrepresentation as regards the ‘character of the document’ and

fraudulent misrepresentation as regards the ‘contents of a

document’. It is only in the former situation that the instrument

would be void and, in the latter, it would remain voidable. To put it

simply, Article 59 would not govern the period of limitation in

respect of a void transaction.

iv. Lastly, that if a deed was executed by the plaintiff when he was a

minor and it was thereby void, he had two options to file a suit to get

the property conveyed thereunder i.e., he could either file the suit

within 12 years of the deed or within 3 years of attaining majority.

The relevant observations are reproduced as under:

“13. Article 59 of the Limitation Act applies specially when a relief is

claimed on the ground of fraud or mistake. It only encompasses within its

fold fraudulent transactions which are voidable transactions.

-xxx-

16. When a document is valid, no question arises of its cancellation.

When a document is void ab initio, a decree for setting aside the same

would not be necessary as the same is non est in the eye of the law, as it

would be a nullity.

2026:JHHC:16061

56

17. Once, however, a suit is filed by a plaintiff for cancellation of a

transaction, it would be governed by Article 59. Even if Article 59 is not

attracted, the residuary article would be.

18. Article 59 would be attracted when coercion, undue influence,

misappropriation or fraud which the plaintiff asserts is required to be

proved. Article 59 would apply to the case of such instruments. It would,

therefore, apply where a document is prima facie valid. It would not

apply only to instruments which are presumptively invalid.

(See Unni v. Kunchi Amma [ILR (1891) 14 Mad 26] and Sheo Shankar

Gir v. Ram Shewak Chowdhri [ILR (1897) 24 Cal 77].)

-xxx-

21. Respondent 1 has not alleged that fraudulent misrepresentation was

made to him as regards the character of the document. According to him,

there had been a fraudulent misrepresentation as regards its contents.

22. In Ningawwa v. Byrappa [(1968) 2 SCR 797 : AIR 1968 SC 956] this

Court held that the fraudulent misrepresentation as regards character of

a document is void but fraudulent misrepresentation as regards contents

of a document is voidable stating:

“The legal position will be different if there is a

fraudulent misrepresentation not merely as to the

contents of the document but as to its character. The

authorities make a clear distinction between

fraudulent misrepresentation as to the character of

the document and fraudulent misrepresentation as to

the contents thereof. With reference to the former, it

has been held that the transaction is void, while in

the case of the latter, it is merely voidable.”

In that case, a fraud was found to have been played and it was held that

as the suit was instituted within a few days after the appellant therein

came to know of the fraud practised on her, the same was void. It was,

however, held:

“Article 91 of the Limitation Act provides that a suit

to set aside an instrument not otherwise provided for

(and no other provision of the Act applies to the

circumstances of the case) shall be subject to a three

years' limitation which begins to run when the facts

entitling the plaintiff to have the instrument

cancelled or set aside are known to him. In the

present case, the trial court has found, upon

examination of the evidence, that at the very time of

the execution of the gift deed, Ext. 45 the appellant

knew that her husband prevailed upon her to convey

Surveys Plots Nos. 407/1 and 409/1 of Tadavalga

village to him by undue influence. The finding of the

trial court is based upon the admission of the

appellant herself in the course of her evidence. In

view of this finding of the trial court it is manifest

that the suit of the appellant is barred under Article

91 of the Limitation Act so far as Plots Nos. 407/1

and 409/1 of Tadavalga village are concerned.”

-xxx-

28. If a deed was executed by the plaintiff when he was a minor and it

was void, he had two options to file a suit to get the property purportedly

2026:JHHC:16061

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conveyed thereunder. He could either file the suit within 12 years of the

deed or within 3 years of attaining majority. Here, the plaintiff did not

either sue within 12 years of the deed or within 3 years of attaining

majority. Therefore, the suit was rightly held to be barred by limitation

by the trial court.”

52. The Hon’ble Supreme Court in 2025 SCC On Line 1961

(supra) referred to the earlier decision in the case of Hussain Ahmed

Choudhury v. Habibur Rahman, 2025 SCC OnLine SC 892 and

observed as follows: -

“30. In the decision of this Court in Hussain Ahmed Choudhury v. Habibur

Rahman, 2025 SCC OnLine SC 892, where one of us, J.B. Pardiwala J.,

was a member of the Bench, it was reiterated that a person who is not a

party to an instrument would not be obliged in law to seek its cancellation.

The reason being that such an instrument would neither be likely to affect

his title nor be binding on him. However, such a plaintiff must at least seek

a declaration that the said instrument is not binding on him or that is

invalid insofar as he is concerned. The relevant observations are

reproduced hereinbelow:

“30. As observed aforesaid, a plaintiff who is not a party to a

decree or a document, is not obligated to sue for its cancellation.

This is because such an instrument would neither be likely to affect

the title of the plaintiff nor be binding on him. We have to our

advantage two very old erudite judgments of the Madras High

Court and one of the Privy Council on the subject.

31. In Unni v. Kunchi Amma, 1890 SCC OnLine Mad 5, the legal position

has been thus explained:

“If a person not having authority to execute a deed or having such

authority under certain circumstances which did not exist, executes

a deed, it is not necessary for persons who are not bound by it, to

sue to set it aside for it cannot be used against them. They may treat

it as nonexistent and sue for their right as if it did not exist.”

32. The same principle has been distinctly laid down by the Privy Council

in Bijoy Gopal Mukerji v. Krishna Mahishi Debi, 1907 SCC OnLine PC 1,

where the jural basis underlying such transactions was pointed out. In that

case, the reversioner sued for a declaration that a lease granted by the

widow of the last male owner was not binding on him and also for khas

possession. It was objected that the omission to set aside the lease by a suit

instituted within the time limit prescribed by Article 91 of the Indian

Limitation Act, 1877 was fatal to the suit. The following observations

which are equally applicable to the case at hand, are apposite:

“A Hindu widow is not a tenant for life, but is owner of her

husband's property subject to certain restrictions on alienation and

subject to its devolving upon her husband's heirs upon her death.

But she may alienate it subject to certain conditions being

complied with. Her alienation is not, therefore, absolutely void, but

it is prima facie voidable at the election of the reversionary heir.

He may think fit to affirm it, or he may at his pleasure treat it as a

nullity without the intervention of any Court, and he shows his

election to do the latter by commencing an action to recover

possession of the property. There is, in fact, nothing for the Court

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58

either to set aside or cancel as a condition precedent to the right of

action of the reversionary heir. It is true that the appellants prayed

by their plaint for a declaration that the ijara was inoperative as

against them, as leading up to their prayer for delivery to them of

khas possession. But it was not necessary for them to do so, and

they might have merely claimed possession, leaving it to the

defendants to plead and (if they could) prove the circumstances,

which they relied on, for showing that the ijara of any derivative

dealings with the property were not in fact voidable, but were

binding on the reversionary heirs.”

33. In fact, it is logically impossible for a person who is not a party to a

document or to a decree to ask for its cancellation. This is clearly

explained by Wadsworth, J., in the decision rendered in Vellayya Konar

(Died) v. Ramaswami Konar, 1939 SCC OnLine Mad 149, thus:

“When, the plaintiff seeks to establish a title in himself and cannot

establish that title without removing an insuperable obstruction

such as a decree to which he has been a party or a deed to which

he has been a party, then quite clearly he must get that decree or

deed cancelled or declared void ‘in toto’, and his suit is in

substance a suit for the cancellation of the decree or deed even

though it be framed as a suit for declaration. But when he is

seeking to establish a title and finds himself threatened by a decree

or a transaction between third parties, he Is not in a position to get

that decree or that deed cancelled ‘in toto’. That is a thing which

can only be done by parties to the decree or deed or their

representatives. His proper remedy therefore in order to clear the

way with a view to establish his title, is to get a declaration that the

decree or deed is invalid so far as he himself is concerned and he

must therefore sue for such a declaration and not for the

cancellation of the decree or deed.”

34. Therefore, filing a suit for cancellation of a sale deed and seeking a

declaration that a particular document is inoperative as against the

plaintiff are two distinct, separate suits. The plaintiff in the present case,

not being the executant of the sale deed dated 05.05.1997 executed in

favour of the respondent no. 1 (original defendant no. 14), was therefore,

not obligated to sue for its cancellation under Section 31 of the Act, 1963.”

53. The Hon’ble Supreme Court in 2025 SCC On Line 1961

(supra) with respect to the facts of the case at hand applied the law

laid down in the case of Prem Singh v. Birbal, (2006) 5 SCC 353 and

held that since the sale deed in the said case was not executed by the

plaintiff as it was proved to be not her thumb impression on the sale

deed , the deed was held to be void / void ab initio and therefore the

plaintiff was not required to challenge the same and Article 59 of the

Limitation Act , 1963 was found to have no applicability to the case.

It was also observed in the facts of the said case that the sale deed was

void on account of the fact that the consideration was not paid and the

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59

plaintiff would not be required to seek its cancellation and therefore,

Article 59 of the Limitation Act, 1963 could not be said to be

applicable to the facts of the case. It has been held that in the aforesaid

circumstances the plaintiff could indeed have maintained an action to

obtain possession of the property on the basis of her title and file the

same within the period of 12 years from the date of knowledge that the

possession of the defendant was adverse to that of the plaintiff. The

court further observed that even if the date of execution of the sale

deed, i.e., 14.06.1973 was considered, the suit having been filed on

28.02.1984, i.e., almost 11 years later, could be said to be well within

limitation as stipulated under Article 65 of the Limitation Act, 1963.

The paragraphs/ portions of the paragraphs relevant for the purposes

of the present case are quoted as under: -

31. As per the dictum in Prem Singh (supra), this Court, in order to

ascertain whether Article 65 of the Limitation Act, 1963 would

apply to the present factual scenario, has to first determine whether

the fraud was alleged as regards the contents of the sale deed dated

14.06.1973 or the character of such sale deed. Both the First

Appellate Court as well as the High Court have arrived at the

finding that the plaintiff had never executed the said sale deed in

the first place as it was proved that it was not her thumb

impression that was affixed therein. Therefore, this finding goes to

the character of the sale deed and thereby, renders it void/void ab

initio. Hence, as per this decision, there remained no reason for the

plaintiff to seek for its cancellation. The original sale deed also was

not produced before the Trial Court by the defendants in order to

rebut the doubt cast upon the veracity of the said sale deed.

Consequently, Article 59 of the Limitation Act, 1963 would find no

application to the case in hand.

32. In Hussain Ahmed Choudhury (supra), it was clearly opined

that a plaintiff who is not a party to the instrument in question need

not seek its cancellation. We are not oblivious to the fact that in a

situation where the plaintiff was not a party to the instrument, the

said decision laid down a requirement that a declaration must be

sought to the effect that the said instrument was not binding on the

plaintiff. However, the said decision clarified that whether the

plaintiff has sought such a declaration or not could be culled out

from a holistic reading of the plaint along with the relief(s) sought.

In cases where the character of the sale deed is assailed as being

fraudulent, this requirement is implicitly satisfied since the very

averment that the sale deed was fraudulent or a sham and bogus

transaction by itself indicates that the plaintiff did not intend to be

bound by it. Therefore, this requirement too, could be said to have

been satisfied by the plaintiff in the present case.

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60

33. Further, as per State of Maharashtra (supra), it would be of no

consequence even the plaintiff in one of his prayers, seeks a

declaration that the sale deed is a nullity or invalid insofar as he is

concerned, since such an instrument would anyway be void owing

to it being fraudulent. Therefore, the period of limitation for a suit

for possession based on title would continue to be governed by

Article 65. In other words, the addition of such a prayer would not

influence the period of limitation within which such a suit must be

filed.

38. …………………………………………………………………………

………. Therefore, the averment of the plaintiff in the plaint, that

she had not received the sale consideration, had not been otherwise

proven as false. In such circumstances as well, i.e., in the absence

of the sale consideration being tendered, the sale deed would be

void and the plaintiff would not be required to seek its cancellation.

Therefore, Article 59 of the Limitation Act, 1963 could not be said

to be applicable to the present facts.

39. The First Appellate Court had rightly observed that the plaintiff

had claimed the relief of joint possession. It had also arrived at the

finding that the transaction in question was void. To put it simply,

in the eyes of the law, the plaintiff could not be said to have

executed the sale deed. Therefore, the plaintiff could indeed have

maintained an action to obtain possession of the property on the

basis of her title and filed the same within the period of 12 years

from the date of knowledge that the possession of the defendant

was adverse to that of the plaintiff. Even if the date of execution of

the sale deed, i.e., 14.06.1973 is considered, the suit having been

filed on 28.02.1984, i.e., almost 11 years later, could be said to be

well within limitation as stipulated under Article 65.”

54. It is also relevant to refer to the earlier judgement of the

Hon’ble Supreme Court passed in Murugan v. Kesava Gounder,

(2019) 20 SCC 633: 2019 SCC OnLine SC 270, paragraph 28 and

29, where it has been held that the Limitation Act contemplates suit to

set aside a transfer of property made by the guardian of a ward for

which limitation is contemplated as three years. Article 60 of the

Limitation Act although provides for a limitation of a suit but also

clearly indicates that to set aside a transfer of property made by the

guardian of a ward a suit is contemplated. Paragraph 28 and 29 of the

aforesaid judgement is quoted as under: -

“28. This Court time and again held that setting aside of a sale

which is voidable under Section 8(3) is necessary for avoiding a

registered sale deed. We may, however, not to be understood that

we are holding that in all cases where minor has to avoid disposal

of immovable property, it is necessary to bring a suit. There may be

creation of charge or lease of immovable property which may not

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61

be by registered document. It may depend on facts of each case as

to whether it is necessary to bring a suit for avoiding disposal of

the immovable property or it can be done in any other manner. We,

in the present case, are concerned with disposal of immovable

property by natural guardian of minor by a registered sale deed,

hence, we are confining our consideration and discussion only with

respect to transfer of immovable property by a registered deed by a

natural guardian of minor.

29. The Limitation Act, 1963 has been enacted by Parliament after

the enactment of the Hindu Minority and Guardianship Act, 1956.

Article 60 of the Limitation Act, 1963 provides for limitation of

“suits relating to decrees and instruments”. The Limitation Act

contemplates suit to set aside a transfer of property made by the

guardian of a ward for which limitation is contemplated as three

years. Article 60 of the Limitation Act although provides for a

limitation of a suit but also clearly indicates that to set aside a

transfer of property made by the guardian of a ward a suit is

contemplated.”

55. It was the specific case of the plaintiff that after death of

Ganesh Mahto, Nirsi Devi began to be pressurized by defendant Nos.1

and 2 to give them some lands for their maintenance lest they feared

that plaintiff, after he comes to age, may not allow them to share an

inch of land out of Khata No.11. It was the case of the plaintiff that

Nirsi Devi , without any right or authority in law to do so, executed a

deed of so-called partition amongst the plaintiff and defendant No.1

and 2 on 29.01.1946 acting as guardian of the then minor plaintiff in

spite of knowing fully well that defendant Nos.1 and 2 neither had

any right nor had any title in the lands of Khata No. 11 nor could they

have demanded partition. It is alleged that Nirsi Devi purportedly

allotted 8/- annas share, jointly to defendant No.1 and 2, and 8/- annas

share to the plaintiff by making a false recital that such an

arrangement had been made by her 2

nd

husband, Ganesh Mahto

himself, during his life time. It was the case of the plaintiff that though

the document dated 09.01.1946 was with nomenclature ‘deed of

partition’ but it did not partake the nature of partition. It simply

purported to define the share of plaintiff and defendant Nos.1 and 2. It

has been alleged that this was a mere paper transaction which did not

become operative nor could bind the plaintiff, who was a minor at that

time and had no knowledge or idea about such a document which was

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62

kept a close secret. It was also his case that the defendants No.1 and 2

also never disclosed this fact to any known relative or to any person in

the village until they claimed a right in the lands of khata No. 11 in the

year 1973. It was the case of the plaintiff that he remained in

possession of the property right from 1950 when he became major.

However, the plaintiff claimed confirmation of possession of the

property and also prayed for recovery of possession of the suit

property from defendant no.3 if the plaintiff was found dispossessed

as the defendant no. 1 and 2 sold the suit property to defendant no. 3

vide two registered sale deeds of the year 1973 and 1976 and a prayer

was made seeking declaration of the two sale deeds as void on the

ground that the defendant no. 1 and 2 had no title to pass to the

defendant no.3.

56. The reading of the plaint revealed that the plaintiff did not pray

in the prayer portion that the registered Batwarnama of 1946 was null

and void but in the body of the plaint the plaintiff had challenged the

registered Batwarnama of 1946 by stating that that the mother, Nirsi

Devi , made false recitals in the registered Batwarnama of 1946

(exhibit-H) in order to alienate the property of the minor plaintiff

which devolved upon him on death of his father, to his two uterine

brothers in the name of partition deed but the deed was not a partition

deed, rather in effect it was a transfer. The registered Batwarnama of

1946 was not specifically challenged in the prayer but was challenged

in the body of the plaint and asserting that it was a void transaction by

making false recitals as the uterine brothers were not the coparceners

of the plaintiff in the matter of inheritance and the property of the

biological father of the plaintiff could not have been subject matter of

partition through registered Batwarnama of 1946 as defendant no. 1

and 2 had not inherited the property. The plaintiff had challenged the

correctness of the recitals made by the mother of the plaintiff in the

registered Batwarnama of 1946.

57. The law is well settled, as held by the Hon’ble Supreme Court,

that the legal position will be different if there is a fraudulent

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63

misrepresentation not merely as to the contents of the document but as

to its character. The authorities make a clear distinction between

fraudulent misrepresentation as to the character of the document and

fraudulent misrepresentation as to the contents thereof. With reference

to the former, it has been held that the transaction is void, while in the

case of the latter, it is merely voidable. [(1968) 2 SCR 797 : AIR 1968

SC 956 also referred in 2025 SCC On Line 1961 (supra)]

58. In the present case, the allegation of the plaintiff with respect to

registered Batwaranama of 1946 is of misrepresentation not only as to

the contents of the document but also as to its character. It has been

alleged that the mother of the plaintiff being the guardian of the

plaintiff had made false statement in the registered Batwarnama of

1946 to partition the property between the plaintiff on one hand and

defendant no. 1 and 2 on the other hand and in fact had alienated

/transferred the ½ share of the property to the defendant no. 1 and 2 in

the name of partition.

59. Considering the nature of allegation made with respect to

registered Batwarnama of 1946 which relates to misrepresentation

with respect to the content and also the character of the document, the

registered Batwarnama of 1946 was voidable and not void ab initio

document and accordingly the same could not be avoided without

challenging the same in accordance with law and within the period of

limitation.

60. As per the case of the plaintiff, he attained majority in the year

1950 and there is finding of the learned 1

st

appellate court that the

plaintiff was dispossessed from the property in the year 1946 by

virtue of registered Batwarnama of 1946 executed by his mother in

the capacity of his natural guardian, and since the document was

voidable as held above , the plaintiff ought to have challenged the

registered Batwarnama of 1946 [by which ½ of his property was

alleged to have been alienated by his mother in the capacity of the

guardian of the plaintiff in favour of defendant no. 1 and 2] within 3

years of attaining majority. The learned 1

st

appellate court has

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64

recorded a finding of fact that the plaintiff was dispossessed and the

defendant no.1 and 2 came in possession of the ½ share of property of

Ganesh Mahto by virtue of registered Batwaranama of 1946 and this

findings of fact has attained finality. Having failed to challenge

registered Batwaranama of 1946 within 3 years of attaining majority

in the year 1950 the plaintiff’s suit would suffer due to his non-filing

of suit seeking declaration against the defendant nos. 1 and 2

challenging the registered Batwaranama of 1946. Mere challenging

the registered Batwaranama of 1946 in the body of the plaint as void

and not binding upon the plaintiff was not sufficient as the

registered Batwaranama of 1946 was a voidable document and not

void document. The substantial question of law no. (ii) is

accordingly answered against the plaintiff (appellants) and in favour

of the defendant no. 1 to 3(respondents).

61. In view of the answers to the substantial question of law nos. (i)

and (ii) against the plaintiff (appellants) and in favour of the defendant

no. 1 to 3 (respondents), this 2

nd

appeal is dismissed.

62. Pending interlocutory application, if any, are dismissed as not

pressed.

63. Let the records received from the learned court concerned be

sent back forthwith.

64. Let this order be communicated to the learned court concerned

through ‘FAX/email’.

(Anubha Rawat Choudhary, J.)

Date of Judgment: 03.06.2026

Pankaj/Rakesh/-

Date of Uploading: 04.06.2026