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IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 14 of 1995 (R)

Bishwanath Prasad, son of Late Nathuni Chaudhuri, resident of

Mahalla Whitty Bazar, P.S.- Giridih (T), P.O. & Town- Giridih,

District- Giridih (Dead, Substituted vide order dated 29.08.2022)

1(a). Kamla Devi, Widow of Late Biswanath Prasad

1(b). Sulekha Devi, Widow of deceased son of appellant namely, Ajit

Prasad Jaiswal

1(c). Kumari Bhawna Jaiswal, W/o Sri Bhola Prasad Choudhary

1(d). Kumari Neha Jaiswal, W/o Sri Ranjeet Choudhary

1(e). Ritesh Kumar Jaiswal, S/o Late Ajit Prasad Jaiswal and grandson

of Late Bishwanath Prasad

All R/o Mohalla Whitty Bazar, P.S.- Giridih (T), P.O., Town and

District- Giridih

… … Plaintiffs/Respondents/Appellants

Versus

Dwarika Prasad Bhagat @ Dwarka Prasad Bhagat, son of Late Nathuni

Chaudhuri, resident of Mohalla Whitty Bazar, P.S.- Giridih (T), P.O. &

Town- Giridih, District- Giridih (Dead, Substituted vide order dated

29.08.2022)

1(a). Ranjeet Bhagat

1(b). Surendra Bhagat

1(c). Nagendra Bhagat (Dead, substituted v/o dated 10.11.2025)

1(c)(i). Munti Devi W/o Late Nagendra Bhagat, R/o Mohalla- Whitty

Bazar, P.O. & P.S.- Giridih, District- Giridih

1(c)(ii). Ankit Jaiswal, Adopted S/o Late Nagendra Bhagat, R/o

Mohalla-Whitty Bazar, P.O. & P.S.- Giridih, District- Giridih

1(d). Bijay Bhagat (Dead, Abated vide order dated 10.12.2024)

1(e). Raju Bhagat

All S/o Late Dwarika Prasad Bhagat, R/o Mohalla Whitty Bazar,

P.S.- Giridih (T), P.O., Town and District- Giridih

… … Defendants/Appellants/Respondents

---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

For the Appellants : Mr. R.N. Sahay, Advocate

: Mr. Kirtivardhan, Advocate

: Mr. Aditya Aman, Advocate

For the Respondents : Mr. Yogesh Modi, Advocate

---

Lastly heard on 11.11.2025 Pronounced on 29

th

January, 2026

1. This second appeal has been filed against the judgment and

decree dated 02.12.1994 (decree signed on 13.12.1994) passed by the

learned 2

nd

Additional District Judge, Giridih in Title Appeal No.24 of

1991 reversing the judgment and decree dated 10.05.1991 (decree

signed on 27.05.1991) passed by the learned Sub-Judge-III, Giridih in

Partition Suit No. 15 of 1989/08 of 1990.

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2. The judgment and decree passed by the learned trial court has

been reversed by the learned 1

st

appellate court and consequently, the

plaintiff is the appellant before this Court.

3. This appeal was admitted for hearing vide order dated

21.11.1995 on the following substantial questions of law: -

(i) Whether even after adoption of the defendant by Man Kumari,

Nathuni Chaudhuri and his two sons, namely, the plaintiff

and the defendant continued to be in occupation of the suit

premises as members of the Joint Hindu Family?

(ii) Whether the plaintiff is entitled to any share in the suit

property?

4. The partition suit was filed by the sole plaintiff-Bishwanath

Prasad seeking partition and half share of Schedule B property.

5. Arguments of the appellants (plaintiff)

A. The learned counsel for the appellants has placed the trial court’s

judgment and has given the factual background of the case. He

submits that the facts of the plaintiff and defendant case are

reflecting from the trial court’s judgment.

B. Foundational facts have been submitted as under: -

a. It has been submitted that Man Kumari and Khoshal Kumari

were full sisters.

b. Man Kumari was married to Kali Charan Bhagat;

c. Khoshal Kumari was married to Bhagwat Prasad Bhagat;

d. Kali Charan Bhagat had two wives, namely, Man Kumari and

one more, but the name of another wife has not been

mentioned. However, the descendants through another wife

have been mentioned;

e. Another wife had a daughter, namely, Jamuna Devi, who in

turn had 7 daughters including one Sabitri Devi;

f. Sabitri Devi was married to Nathuni Choudhary, who had

two sons, namely, Dwarika Prasad and Bishwanath Prasad;

g. Bishwanath Prasad is the plaintiff of the case;

h. Dwarika Prasad is the defendant of the case.

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Kali Charan Bhagat (Husband) Bhagwat Prasad Bhagat (Husband)

| |

| | Koshal Kumari

Man Kumari Another wife

|

Jamuna Devi (daughter)

|

(Sabitrai Devi & 6 other daughters)

|

Nathuni Choudhary (husband of Sabitri Devi)

|

Dwarika Prasad (defendant) and Biswanath Prasad (plaintiff)

C. The plaintiff-Bishwanath Prasad had filed the partition suit with

respect to Schedule-B property and the plaintiff claimed ½ share

of the property. Man Kumari was the owner of Schedule-B

property.

D. Further facts in connection with the defendant Dwarika Prasad is

that Man Kumari had adopted Dwarika Prasad by registered deed

of adoption way back in the year 1944. The adoption deed was

challenged by Bhagwat Prasad Bhagat, husband of Koshal

Kumari in Title Suit No. 18/1947, whereby the deed of adoption

was set-aside. However, the same was subject matter of appeal in

First Appeal No. 11/1949, which ended in a compromise.

Consequently, the defendant claimed that he was the exclusive

owner of the Schedule-B property by virtue of the fact that Man

Kumari had adopted the defendant, and therefore, the property

could not be subject matter of partition.

E. Learned counsel for the appellants has referred to paragraphs 13

and 14 of the plaint to submit that the adoption was never acted

upon and the suit property was thrown in the joint family property

of the parties. Paragraphs 13 and 14 of the plaint are quoted as

under: -

“13. That for all intent purposes the plaintiff and defendant

contested the said suit and the appeal with a clear and

mutual under-standing that each of the plaintiff and the

defendant shall be entitled equally to the subject matter of

the said suit and the appeal. In legal paralence the suit

property was thrown to the said joint family.

14. That the said appeal ended in compromise according to

which the land and premises schedule B below was given to

the defendant who accepted the same for and on behalf of

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the plaintiff as well and the plaintiff and the defendant

always treated the same as their joint property and both the

parties are residing therein.”

F. Learned counsel for the appellants has referred to paragraph 9 of

the trial court’s judgment and has submitted that the said finding

has been reversed by the learned 1

st

appellate court vide

paragraph 25 of the judgment without discussing the materials on

record. The learned counsel has then referred to Exhibit-G which

is the order passed in F.A. No.11 of 1949 and has submitted that

the appeal against the judgment passed in the earlier Title Suit

has been practically dismissed.

G. The learned counsel for the appellants has submitted that in the

Title Suit No.18 of 1947 filed by Bhagwat Prasad Bhagat against

four defendants Dwarka Prasad Bhagat, Most. Man Kumari,

Sudarshan Chakra Prasad Bhagat and Mahadeo Prasad Bhagat

and in the suit, the registered adoption deed was set aside. He

submits that the appeal was filed by defendant Nos.1 and 2 which

was numbered as F.A. No. 11 of 1949, which ended in a

compromise. The respondent Nos.2 and 3 in the F.A. No. 11 of

1949 were the co-defendants in the suit.

H. The learned counsel for the appellants has submitted that as per

the compromise petition, the plaintiff Bhagwat Prasad Bhagat

accepted that defendant No. 1 i.e. Dwarka Prasad Bhagat, was

the adopted son of Kali Charan Bhagat and further it was agreed

that all the right, claim and title of defendant No. 2 Most. Man

Kumari with respect to her property, which is Schedule B

property in the present case, will vest in defendant No.1 i.e.

Dwarka Prasad and also the plaintiff Bhagwat Prasad Bhagat. It

was further stipulated that the property of Man Kumari was

divided between Dwarka Prasad Bhagat and Bhagwat Prasad

Bhagat amongst themselves; a portion to the west fell in the share

of Dwarka Prasad Bhagat and the portion in the east fell to the

share of Bhagwat Prasad Bhagat; Bhagwat Prasad Bhagat

undertook to redeem mortgage bond of Rs. 550/- executed in

favour of Ram Chandra Sah by Dwarka Prasad Bhagat over the

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said house which fell into the share of Bhagwat Prasad Bhagat.

It was also agreed that the parties could get their names mutated

in the Municipal Register and neither parties will raise objection

with respect to each other’s share. The property was divided

between Bhagwat Prasad Bhagat and Dwarka Prasad upon

compromise.

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

compromise, the sole plaintiff Bhagwat Prasad Bhagat had

accepted that the defendant No.1 namely Dwarka Prasad Bhagat

was the adopted son to Kalicharan Bhagat and the same will have

no bearing on the finding recorded by the learned trial court that

the adoption was invalid in the eyes of law. The learned counsel

for the appellants submits that merely because the plaintiff of the

earlier title suit, who had challenged the deed of adoption, had

accepted during compromise in the said suit that there was

adoption, the same will not nullify the finding of the learned trial

court. As a sequel to the aforesaid argument, the learned counsel

has submitted that the effect of invalid adoption is that the status

of Dwarka Prasad Bhagat continued to be in his own family of

biological father and therefore, he cannot acquire any right, title

and interest in the property of Man Kumari by virtue of adoption.

J. The learned counsel has relied upon the 24

th

Edition of Principles

of Hindu Law by Mullah at page No. 713 which deals with the

effect of invalid adoption. The learned counsel submits that if the

adoption is invalid, then both the parties, the plaintiff and the

defendant were entitled to ½ share of the property.

6. Arguments of the Respondents

i. The learned counsel for the respondents has referred to 22

nd

Edition of Hindu Law by Mullah at page No. 707 and has

submitted that there the period of limitation to obtain a

declaration that the adoption is invalid, or never took place is six

years from the date on which the alleged adoption becomes

known to the plaintiff. The learned counsel submits that the

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registered deed of adoption in the present case has still not been

set aside.

ii. Learned counsel for the respondents has submitted that the

judgment of Title Suit No. 18 of 1947 is on record and marked as

Exhibit-10 and upon perusal of the said judgment, it appears that

Kalicharan Bhagat and Bhagwat Prasad Bhagat are also distantly

related and there was dispute of other properties also. The learned

counsel for the respondents has submitted that Bhagwat Prasad

Bhagat was the sole plaintiff in the earlier suit, who had

challenged the deed of adoption in the suit and at the stage of

compromise, he accepted the adoption as valid, and therefore, it

cannot be said that the adoption is invalid at any stage of the

matter or it was set aside by any court of law.

iii. The consequence of adoption has been mentioned in Sections 11

and 12 of the Hindu Adoption & Maintenance Act and as per this

provision, the adopted child acquires the status of child in the

adopted family. Learned counsel for the respondents has

submitted that as per Section 16 of the Hindu Adoption &

Maintenance Act, a registered deed of adoption is valid unless it

is proved to be invalid. He has also submitted that the adoption

deed is not under challenge in the present proceedings and the

present proceeding arises out of a partition suit. He has relied

upon the judgment passed by this Court in S.A. No. 493 of 2018

[Pawan Rout vs. Shanti Kumrain and Others] in which a

reference has been made to the judgment reported in (1969) 2

SCC 544 [Smt. Sitabai and another v. Ramchandra] and has

submitted that the consequence of adoption with respect to

Sections 11 and 12 Hindu Adoption & Maintenance Act has been

considered.

iv. The learned counsel for the respondents has submitted that the

adoption was valid, and therefore, the property devolved upon

the adopted son of Man Kumari namely Dwarika Prasad, and the

plaintiff in the present case had no right to seek partition with

respect to the property. He has further submitted that otherwise

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also as per the compromise, a portion was to go to Bhagwat

Prasad Bhagat, and the plaintiff is not claiming through Bhagwat

Prasad Bhagat. He has submitted that mere performance of last

rites of his biological father does not annul the adoption of

Dwarika Prasad by Man Kumari. The learned counsel for the

respondents has submitted that the plaintiff pleaded that there

were an adoption and the said fact stood admitted by the

defendant, and therefore, there is no question of challenging the

validity of adoption in the present proceedings, which is arising

out of a partition suit.

v. On the point of abatement with respect to deceased respondent

no.1(d), the learned counsel for the respondents has referred to

paragraph 12 of the judgement passed by the Hon’ble Supreme

Court reported in (2019) 11 SCC 787 (Sunkara

Lakshminarasamma vs. Sagi Subba Raju and Others) and

submitted that the effect of abatement has been duly dealt with in

the said judgement. The learned counsel submits that the

proceeding having abated in connection with respondent no.1 (d),

who is one of the substituted heirs of Dwarika Prasad Bhagat,

therefore, the right with respect to respondent no.1 (d) has

attained finality and the right of the other legal heirs and

successors of Dwarika Prasad Bhagat, who are on record that

cannot be affected, and therefore, the entire appeal has abated.

7. Rejoinder arguments of the Appellants

a) In response, the learned counsel for the appellants has submitted

that in the earlier title suit, read with the compromise, the

adoption was already held to be invalid. The learned counsel has

also submitted that the arguments advanced on behalf of the

respondents by referring to the judgment passed in the earlier title

suit have nothing to do with the present case and the respondents

have to stick to the written statement filed in the plaint.

b) The learned counsel for the appellants has further, in response,

submitted that non – substitution of respondent no.1 (d) has no

bearing in the present case as the case was filed against Dwarika

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Prasad Bhagat and it is his right, title and interest with respect to

the suit property, which was under challenge and his estate is

duly represented by the other respondents, who have been

substituted during the pendency of this case.

8. Case of the plaintiff

i. Man Kumari and Koshal Kumari were full sisters. Man Kumari

was married with Kali Charan Bhagat and Koshal Kumari was

married with Bhagwat Prasad Bhagat. Kali Charan Bhagat had

two wives. From the first wife, he had a daughter Jamuna Devi

and Jamuna Devi had a daughter Sabitri Devi. After death of the

first wife, Kali Charan took Man Kumari as his second wife. Man

Kumari was the owner of Schedule-A property.

ii. Sabitri Devi was married with Nathuni Choudhary and had two

sons, Dwarika Prasad Bhagat (the defendant) and Biswa Nath

Prasad (the plaintiff) and the father with two sons formed joint

Hindu Mitakshara family. Man Kumari had no issue and she

executed a registered deed of adoption, adopting the defendant

Dwarika Prasad Bhagat as her son in or about the year 1944.

iii. The said deed of adoption was challenged by said Bhagwat

Prasad Bhagat and the adoption deed was set aside by Sub-Judge,

Hazaribagh in Title Suit No.18 of 1947. Dwarika Prasad Bhagat

and his adoptive mother Man Kumari preferred F.A. No.11 of

1949 which ended in a compromise according to which, the

property mentioned in Schedule-A vested in Dwarika Prasad

Bhagat and Bhagwat Prasad Bhagat and out of Schedule-A

property, the Schedule-B property was allotted to the share of

Dwarika Prasad Bhagat. As a matter of fact, the said suit and

appeal arising therefrom were contested by Nathuni Choudhary

as karta of the joint family consisting of himself and his sons out

of the joint family income and the fund. While the said appeal

was pending in High Court, Nathuni Choudhary sold his

ancestral lands of his native Village Hazipur to meet the expenses

of the said appeal.

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iv. Even Man Kumari had every intention that Schedule-B property

of the present suit shall go to plaintiff and the defendant of this

suit in equal shares and even the defendant of this suit always

accepted such position and treated the Schedule-B property as

the joint family property of the plaintiff and the defendant of the

present suit. On 23.12.1948, Man Kumari and Dwarika Prasad

Bhagat (present defendant) executed an agreement accepting and

admitting the share of plaintiff and defendant of this suit in the

Schedule-B property to the extent of ½ and ½ and it was also

admitted that the plaintiff paid Rs.2,000/- towards the expenses

to be met against the said appeal before High Court. It was also

agreed in the compromise that whatever interest in the subject

matter of the litigation in High Court will be gained by the

defendant, the plaintiff and the defendant each shall have ½ and

½ interest thereon.

v. There were several letters written by the Sirista of the advocate

engaged on behalf of the defendant to Nathuni Choudhary, the

father of the defendant and plaintiff, which show that it was

Nathuni Choudhary, who was meeting the expenses of the said

appeal as karta of his joint family. Nathuni Choudhary used to

maintain accounts of the expenses of the suit and appeal which

were fully counter signed by Man Kumari. It was the case of the

plaintiff that for all intent purposes, the plaintiff and the

defendant of the present case contested the earlier suit and the

appeal with a clear and mutual understanding that each of them

shall be entitled equally to the subject matter of the said suit and

the appeal. It was the case of the plaintiff in this suit that the suit

property was thrown to the joint family stock.

vi. The said appeal ended in a compromise according to which the

land and premises of Schedule-B was given to the defendant,

who accepted the same for and on behalf of the plaintiff as well,

and the plaintiff and the defendant always treated the same as

their joint property and both the parties are residing therein. All

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the taxes including Municipal Taxes, ground rents and electric

charges are being met by the plaintiff and the defendant jointly.

vii. The plaintiff further stated that for last years, few differences

crept between the plaintiff and the defendant. The defendant

disconnects the electric supply off and on to the rooms in

occupation of the plaintiff. The defendant also gave out that the

holding in suit stands in his name and he will not give any share

in it to the plaintiff. The plaintiff having come to know about the

ill intention of the defendant demanded partition of the suit

property from the defendant in the month of March, 1989, but

the defendant did not agree to the same. Hence, the necessity for

the suit.

viii. The plaintiff stated that the cause of action for the suit arose in

the month of July, 1987 and in the month of March, 1989 and

thereafter day to day within the jurisdiction of the Court. The

plaintiff valued the suit property at Rs.31,000/- for the purposes

of jurisdiction and paid the fixed court fee of Rs.29.75 as a suit

for partition.

9. Case of the defendant

a) The suit is not maintainable, barred by limitation, waiver,

acquiescence and estoppel and the plaintiff has no cause of action

for the suit. The plaintiff is required to pay ad-valorem court fee

on the market value of the suit property which is not less than

Rs.10,00,000/- lacs, but the plaintiff has grossly undervalued the

suit property for ulterior motive.

b) The genealogy and the fact that Man Kumari was the owner of

the suit property as mentioned in paragraphs 1, 2, 3 and 4 was

not disputed. The defendant admitted that Man Kumari had

adopted the defendant as her son in the year 1944 and it was

added that after adoption, the defendant came and lived with Man

Kumari and Man Kumari transferred the said land and house

comprising of Holding No.315 of Ward No.3 of Giridih

Municipality to the defendant, who started all acts of possession

over the said properties as its exclusive owner. The defendant

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also admitted that the adoption deed was challenged by Bhagwat

Prasad Bhagat, the husband of Khoshal Kumari, and the adoption

was set aside in Title Suit No.18 of 1947. Thereafter, Dwarika

Prasad Bhagat and Man Kumari preferred an appeal being F.A.

No.11 of 1949 challenging the judgement passed in Title Suit

No.18 of 1947. The said first appeal was ultimately compromised

and accordingly the property of Schedule A vested in Dwarika

Prasad Bhagat and Bhagwat Prasad Bhagat and out of Schedule

A property, the property of Schedule B was allotted to the share

of Dwarika Prasad Bhagat.

c) The defendant stated that the joint family of Nathuni Choudhary

and the plaintiff (defendant had ceased to be a member after

adoption by Man Kumari) had nothing to do with the said suit or

appeal, nor Nathuni Choudhary or the joint family incurred a

single farthing in contesting the suit or appeal. No ancestral

land/native house of Nathuni Choudhary at Hazipur was sold to

meet the expenses of the said suit/appeal. It was stated that Man

Kumari herself transferred the said property to the defendant

alone, which itself shows her intention that she never desired to

give any interest to the plaintiff in the said property, nor the

defendant ever intended like that. He also denied execution of

any agreement on 23.12.1948 and stated that the plaintiff never

advanced Rs.2,000/- to meet the expenses of the appeal in the

Hon’ble High Court as the plaintiff was not at all capable to

advance a single farthing at that time and he had hardly passed

matriculation or had gone to Calcutta to study in college and he

was himself a dependent.

d) The defendant admitted that the appeal ended in compromise and

properties described in Schedule-B of the plaint was accepted to

have vested in the defendant, but denied that the defendant

accepted it on behalf of plaintiff also and the said property was

treated as joint properties of the parties.

e) He further stated that the plaintiff was never in joint possession

of the said properties, rather the plaintiff was in permissive

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possession of two room only on the first floor and the rest of the

house and land has been coming in open, adverse, exclusive and

peaceful possession of the defendant for more than twelve years.

f) The defendant denied that all municipal taxes, ground-rent,

electric charges were being paid by the plaintiff and asserted that

all papers concerning the said property stand in the name of the

defendant and stated that the plaintiff never paid a single

farthing, nor he could had paid a single farthing as he had/has no

interest in the said property. The defendant also stated that there

could be no occasion for demand of any partition in the suit

property by the plaintiff.

g) The defendant submitted that the natural father of the defendant

and the plaintiff Late Nathuni Choudhary was residing at

Hazipur and Patna and he was in service and had little time to

spend with the family. It was very difficult for him to provide

education to the plaintiff and hence, he requested Man Kumari

and the defendant to allow the plaintiff to live with them at

Giridih, so that he may be educated. The defendant and Man

Kumari agreed and the plaintiff resided at Giridih and was

educated. After matriculation, he went to Calcutta to study in

college. After about two-three years, he returned back in or about

1950-51 and was in search of some job. He was a partner in cloth

business with one Bishwanath Khandelwal for some period and

had dealt in money lending business also, for which he was

provided capital by Savitri Devi, who raised the fund after sale

of her house at Hazipur. The plaintiff and Savitri Devi were

provided accommodation in the first floor in two rooms, in which

the plaintiff was still residing. The possession of the plaintiff was

purely permissive and the plaintiff could not acquire any title or

interest therein.

h) The defendant further stated that he has been exercising all sorts

of acts of possession over the said properties since the date of

adoption and transfer of the said property by Man Kumari. He

got the map sanctioned in the municipality to construct the house

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and built it from his own fund, he raised money and capital for

business of his sons by pledging the said properties with the

bank, he has been contesting all matters relating to the said

properties, which clearly show that the defendant is the exclusive

owner of the said properties, and the plaintiff cannot have any

interest therein.

10. On the basis of the pleadings of the parties, the learned trial court

framed the following issues for consideration: -

I. Has the plaintiff got any valid cause of action for the suit?

II. Whether suit is maintainable in its present form?

III. Whether plaintiff is required to pay ad-valorem court fee

on the plaint?

IV. Whether the suit is barred under the law of limitation?

V. Whether T.S. No.18/47 and F.A. No.11/49 were contested

by Nathuni Choudhary and the plaintiff, to make Man

Kumari and defendant agreeable to share the fruits of the

said litigation half and half as shown in the agreement

dated 23.12.1948.

VI. Whether the said agreement is genuine and enforceable

under law?

VII. Whether Nathuni Choudhary and his sons form members

of Joint Hindu Mitakshara Family even after adoption of

defendant by Man Kumari?

VIII. Whether the plaintiff and defendant have been treating

and occupying the suit property as joint property or

whether the occupation of the plaintiff of two rooms only

on the first floor of the suit house is only permissive one?

IX. Whether plaintiff is entitled to have any share in the

property?

11. In course of trial, both the plaintiff and the defendant adduced

oral as well as documentary evidences.

Findings of the learned trial court

12. The learned trial court decided issue nos. V and VI in favour of

the plaintiff and held that the agreement i.e. Ext.-9 can be used as a

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strong piece of evidence regarding intention of Man Kumari that she

wanted to give half and half share to the plaintiff and the defendant.

The issue nos.VII and VIII have also been decided in favour of the

plaintiff by holding that even after adoption, Nathuni Choudhary (father

of plaintiff and defendant) and his sons i.e. plaintiff and defendant,

continued to be the member of joint Hindu family and both plaintiff and

defendant are treating and occupying the suit premises as joint property.

It has also been held that the defendant has not proved that the plaintiff

was in possession of suit premises on the basis of defendant’s

permission. The issue no. IV has also been decided in favour of the

plaintiff by holding that the suit was not barred by limitation. The other

issues were also consequently decided in favour of the plaintiff and the

suit was decreed by holding that the plaintiff was entitled to ½ share

over schedule B property. The learned trial court recorded its findings

in Paragraph Nos.7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17, whose

ultimate findings are as under:

“7. Issue No. V and VI: These two issues are taken together for

discussion for convenience. ………………………

Thus, on the basis of above discussed facts, circumstance

and evidence, I find and hold that the Title Suit No.18/1947 and

First Appeal 11/1949 were contested by Nathuni Chaudhary (father

of the plaintiff and defendant) and plaintiff Bishwanath Prasad as

well as Man Kumari and the defendant Dwarika Prasad Bhagat. In

the circumstance, I also find and hold that agreement i.e. Ext.-9 can

be used as a strong piece of evidence regarding intention of Man

Kumari that she wants to give half and half share to the plaintiff

and defendant. These two issues are accordingly disposed of.

8. Issue No. VII and VIII: These two issues are interconnected.

Therefore, these two issues are taken together for

consideration. ……………………………………..

15. On the basis of above discussed evidences I find and hold that

even after adoption, Nathuni Choudhary (father of plaintiff and

defendant) and his sons i.e. plaintiff and defendant continued to be

the member of joint Hindu family and both plaintiff and defendant

are treating and occupying the suit premises as joint property.

Further I also find and hold that defendant has not proved this fact

that plaintiff is in possession of suit premises on the basis of

defendant’s permission. These two issues are accordingly disposed

of.

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16. Issue No. IV: …………………On behalf of defendant, it has

been strongly argued that the plaintiff has filed this case to enforce

the agreement of year 1948 i.e. Ext.-9 in the year 1989 and

according to the defendant lawyers, the suit is time barred in view

of the article 54 of the limitation act. ……………….

Considering facts and circumstances of the case and

evidence already discussed, I also find and hold that this suit has

not been filed to enforce the agreement i.e. Ext.-9, rather it has been

used as a piece of evidence.

Thus, on the basis of above discussed fact, I find and hold

that argument advanced on behalf of defendant that suit is barred

by law of limitation is not fit to be accepted.

17. Issue No. I, II, III and IX: In view of my finding in respect of

all other issues, I find and hold that plaintiff suit in its present form

is maintainable and plaintiff has valid cause of action for the suit

and he is also entitled for half share in suit premises as claimed by

him.

13. On appeal by the defendant, the learned 1

st

appellate court framed

the following points for determination and decision in the title appeal:

(1) Whether any agreement was executed by Man Kumari and

Dwarka Pd. Bhagat (deft.-appellant) in favour of

Bishwanath Prasad (plaintiff-respondent) on 23.12.1948

and, if so, whether that agreement is enforceable under law?

(2) Whether plaintiff-respondent Bishwanath Prasad is entitled

to ½ share in the suit property?

Findings of the learned 1

st

appellate court

14. The learned 1

st

appellate court took both the points of

determination together and recorded the admitted facts of the case at

paragraph Nos. 20, 21, 22 and 23. The learned 1

st

appellate court

recorded its findings at paragraph Nos. 24 to 53 and the findings are

summarized as under: -

a. Plaintiff has neither questioned the validity of adoption of

defendant Dwarika Pd. Bhagat by Man Kumari way back in the

year 1944 nor he could have challenged as the challenge would

be rendered as time barred. Therefore, the evidence-both oral

and documentary brought on the record by the plaintiff on the

point of adoption could not be gone into considered and

appreciated.

2026:JHHC:2300

16

b. It is a settled principle of the Hindu Law that by adoption, the

boy is completely removed from his natural family as regards of

civil rights and obligations. The adopted son loses his rights in

the coparcenary property and his natural family cannot inherit

from him, nor is he liable for their debts. The plaintiff is

completely estopped from contending and agitating that even

after adoption defendant continued to be a member of his joint

family, the Karta of which was his father Nathuni Chaudhuri as

he has tried to make out a case in his plaint.

c. The plaintiff has made out a case in the plaint that as the earlier

suit/appeal remained pending, it was contested by his father

Nathuni Chaudhuri as Karta of the family consisting of himself

and his sons with the money out of the joint family fund and

income with clear and mutual understanding that the defendant

and the plaintiff of the present case shall be entitled equally to

the subject matter of the suit.

d. The 1

st

appellate court by detailed discussions of the materials

on record considered the inconsistency arising from the varying

contentions of the plaintiff and observed that the inconsistencies

clearly crippled the case of the plaintiff that he and his father

had contested the earlier litigation and spent money for the

same. The learned court recorded that such fact as pleaded in

the plaint could not be proved by the plaintiff and the oral and

documentary evidences placed on record were rejected and the

learned court also recorded that the plaintiff could not prove the

sale of property in the village to finance the earlier litigation.

e. The learned 1

st

appellate court also considered the further case

of the plaintiff that even Man Kumari had every intention that

the suit property shall go to the plaintiff and the defendant in

equal share and even the defendant always accepted that

position and treated the suit property as the joint property of the

plaintiff and the defendant and for that purpose on 23.12.1948

Man Kumari and the present plaintiff and defendant executed

an agreement accepting and admitting the share of the plaintiff

and the defendant in the suit property to the extent of ½ and ½

2026:JHHC:2300

17

share and also considered the plea of the plaintiff that it was

also admitted that the plaintiff paid Rs.2000/- towards the

expenses of the earlier appeal which ended in compromise and

the parties always treated the suit property as their joint

property. The learned 1

st

appellate court rejected the aforesaid

contention of the plaintiff by discussing the materials on record

and held that even the agreement dated 23.12.1948 (Exhibit-9)

was forged and fabricated. The agreement is dated 23.12.1948

and it contains inter alia both the old Holding no.224 as well as

the New Holding No.315 of the suit property although the New

Holding No.315 of the suit property came into being

subsequently in the year 1949-50.

f. The court recorded that the plaintiff (P.W.7) has stated in his

evidence that the said agreement was executed by the defendant

and Man Kumari in his presence but also stated that he learnt

about the said agreement in the year 1977 after the death of his

mother. The court recorded that the fatal inconsistency arising

out of the said two statements of the plaintiff left no room for

doubt that the agreement dated 23.12.1948 (exhibit-9) is entirely

an ingenuine document and it is completely unacceptable and

unbelievable.

g. The plea of the plaintiff having paid Rs.2000/- for the expenses

on the earlier litigation was also rejected by citing reasons based

on materials on record.

h. The court also recorded that the admitted position is that the

plaintiff-respondent (P.W.7) has been in occupation and

possession of only two rooms of the suit house standing in the

suit premises and he does not claim to be in possession of any

other part of the suit property and the court observed that the

plaintiff has not made out a case of the joint possession of the

entire suit property by the parties including himself.

i. The court held that in view of the suit property being vested in

defendant after his adoption by Man Kumari, there was no room

or scope for a case of unity of title to the suit property between

the parties.

2026:JHHC:2300

18

j. The court also recorded that it was remarkable that the plaintiff

has not stated either in his plaint or in his evidence as to when

he came in occupation and possession of the said two rooms and

he does not claim to be a trespasser nor does he assert a hostile

title. Since there is no unity of title, he cannot claim occupation

and possession of the said rooms as a title-holder of the suit

property. The learned court held that in facts and circumstances

of the case, the occupation and possession of the said two rooms

by the plaintiff could not be anything else save and except a

permissive possession which was evidently the case of the

defendant as per his written statement.

k. The learned 1

st

appellate court ultimately observed that there

was no dispute that prior to the adoption in question the suit

property stood in the name of Man Kumari and that ever since

the said adoption, all documents and papers stand in the name

of the defendant. The municipal receipts produced by the

plaintiff were considered and it was held that all of them stood

in the name of either Man Kumari or the defendant except

exhibit 1, which disclosed that the plaintiff had paid the

municipal tax on 26.05.89, that is, after institution of the suit by

him on 11.05.89. The learned court observed that if the plaintiff

had paid all the other municipal taxes, all the remaining

municipal tax receipts too must have disclosed the same as is

disclosed by the said ext.1 and held that by merely producing

the municipal tax receipts, the plaintiff cannot create and claim

title in himself in respect of the suit property.

l. The 1

st

appellate court has completely rejected the plea of the

plaintiff that the property in question was thrown into the family

of the plaintiff, defendant and their biological father.

m. The learned 1

st

appellate court ultimately held as under: -

“52. Thus, on the basis of the detailed discussions

made above, I find and hold as follows: -

(1) That the plaintiff has not been able to prove that

Man Kumari and Dwarka Pd. Bhagat (deft-

appellant) had executed any agreement in favour of

plaintiff Bishwanath Prasad on 23.12.1948.

2026:JHHC:2300

19

(2) That agreement (Ext.-9) brought on the record by

the plaintiff is not a genuine document and hence not

enforceable under law.

(3) That plaintiff Bishwanath Prasad is not entitled

to any share in the suit property.

53. Therefore, in view of the aforesaid detailed

discussions both the points referred to above are

decided and determined in favour of the defendant

and against the plaintiff.”

15. Thus, the learned 1

st

appellate court set aside and reversed the

judgment and decree passed by the learned trial court and allowed the

title appeal on contest.

Findings of this Court

On the point of abetment of appeal due to non-substitution of the

one of the legal heirs of the deceased defendant [respondent no.

1(d)]

16. It has been argued by the learned counsel for the respondents that

deceased respondent no.1 (d) has not been substituted, and therefore,

the proceeding has abated in connection with respondent no.1 (d). It has

also been argued that the entire appeal has abated. It has been further

argued that the rights with respect to respondent no.1 (d) have attained

finality and the rights of the other legal heirs and successors of the sole

defendant in the suit cannot be affected, as the entire appeal has abated.

Reliance has been placed on the judgement reported in (2019) 11 SCC

787 (supra), Paragraph 12 which is quoted as under:

“12. Order 22 Rule 4 CPC lays down that where within the time

limited by law, no application is made to implead the legal

representatives of a deceased defendant, the suit shall abate as

against a deceased defendant. This rule does not provide that

by the omission to implead the legal representative of a

defendant, the suit will abate as a whole. If the interests of the

co-defendants are separate, as in the case of co-owners, the suit

will abate only as regards the particular interest of the

deceased party. In such a situation, the question of the

abatement of the appeal in its entirety that has arisen in this

case depends upon general principles. If the case is of such a

nature that the absence of the legal representatives of the

deceased respondent prevents the court from hearing the

appeal as against the other respondents, then the appeal abates

2026:JHHC:2300

20

in toto. Otherwise, the abatement takes place only in respect of

the interest of the respondent who has died. The test often

adopted in such cases is whether in the event of the appeal

being allowed as against the remaining respondents there

would or would not be two contradictory decrees in the same

suit with respect to the same subject-matter. The court cannot

be called upon to make two inconsistent decrees about the same

property, and in order to avoid conflicting decrees the court has

no alternative but to dismiss the appeal as a whole. If on the

other hand, the success of the appeal would not lead to

conflicting decrees, then there is no valid reason why the court

should not hear the appeal and adjudicate upon the dispute

between the parties.”

17. The said plea has been opposed by the learned counsel for the

appellants by submitting that the suit was filed against the sole

defendant, who was duly substituted and merely because one of the

substituted respondent, that is, respondent no.1 (d) has not been

substituted, the same will not have the effect of abatement of the entire

appeal as his estate is duly represented by the brothers of deceased

respondent no.1 (d).

18. This Court finds that the suit was filed seeking partition with

respect to Schedule B property and the original plaintiff claimed ½

share and the sole defendant opposed the suit by claiming to be the

exclusive owner of the suit property on the strength of his adoption by

the owner of the suit property Man Kumari way back in the year 1944.

In the suit, the legality and validity of the deed of adoption was not

under challenge. It was simply a suit for partition and the specific case

of the plaintiff was that the property which was acquired by the sole

defendant from Man Kumari was thrown into the joint family property

consisting of himself, his biological father and his biological full

brother.

19. Consequently, the suit involved in the present case, if decided in

favour of the appellants-the plaintiff, it would result in conferring ½

share of the suit property jointly in favour of legal heirs and successors

of the original plaintiff and ½ share in favour of the legal heirs of the

original defendant; if this appeal is dismissed, then the entire suit

property of Schedule B would not be subject to partition and would go

2026:JHHC:2300

21

jointly to the legal heirs and successors of the original defendant. The

impugned judgement passed by the 1

st

appellate court allowed the 1

st

appeal and consequently dismissed the suit seeking partition after

holding that there was no unity of title and unity of possession between

the original plaintiff and the original defendant. Both the original

plaintiff and the original defendant have deceased and have been

substituted and in the present case. One of the legal heirs of the

deceased defendant, respondent no. 1 (d) has also expired during the

pendency of this second appeal and has not been substituted. It is not a

case where one of the defendants has not been substituted but it is a

case where one of the legal heirs who died after substitution has not

been substituted upon his death.

20. This Court is of the considered view that the estate of the

deceased sole defendant is sufficiently represented by the other

heirs/legal representatives on record and hence there will be no

abetment at all. For this, reference may be made to the judgement

passed by the Hon’ble Supreme Court in the case of Kishorilal (D)

through L.R and others versus Gopal and others in Civil Appeal

No.172 of 2026 and 173 of 2026 reported in 2026 INSC 48. The

Hon’ble Supreme Court has observed that there is a clear distinction

between non-substitution of deceased party and non-substitution of a

legal heir of a deceased party, in the latter, if the interest of the deceased

party is sufficiently represented by other legal heirs on record, there

will be no abetment. Para 38 (1) and 40 are quoted as under: -

“38. Upon consideration of the decisions cited by both sides,

the legal principles deducible therefrom, and relevant to the

issue in hand, are summarized below:

(1) Before declaring a suit or proceeding to have abated

on ground of non-substitution of the heirs/ legal

representatives of a deceased party, the Court must

examine whether the interest of the deceased party qua

the subject matter of the proceeding is sufficiently

represented by other parties already on record. If the

interest of the deceased party is sufficiently represented

by other parties already on record, and the decree/order

eventually passed in the suit or proceeding would not be

rendered non executable for absence of that party, the

suit or proceeding would not abate.

2026:JHHC:2300

22

2…

40. The decision in Dwarka Prasad (supra), relied by the

learned counsel for respondents, in our view, is not of

much help to the respondents because in that case the

vendor’s interest was not represented at all. Whereas in

the present case, three out of four legal heirs of

Kishorilal (i.e., the vendor) were already on record. In

our view, there is a clear distinction between non-

substitution of the legal representatives/ legal heirs of a

deceased party and non-substitution of one of the heirs of

a deceased party. In the latter, if the interest of the

deceased party is sufficiently represented by other heirs/

legal representatives on record, there will be no

abatement as was held in Mahabir Prasad (supra) and

Bhurey Khan (supra). Therefore, in our view, Dwarka

Prasad’s decision is distinguishable on facts.”

21. This Court is of the considered view that there is no likelihood

of any conflicting decree if the appeal is allowed, at best, the original

plaintiff being represented through his legal heirs and representatives

and the original defendant also represented through his legal heirs and

representatives would be entitled to ½ and ½ share and on account of

non-substitution of one of the legal heirs of the deceased defendant, that

is respondent no. 1(d) there will be no abetment as the estate of the

deceased defendant is duly represented by the other legal heirs already

on record, who are the three full brothers of respondent no. 1(d).

22. This point is accordingly decided in favour of the appellants

and against the respondents.

Substantial Questions of Law No.(i)

Whether even after adoption of the defendant by Man Kumari,

Nathuni Chaudhuri and his two sons, namely, the plaintiff and the

defendant continued to be in occupation of the suit premises as

members of the Joint Hindu Family?

Substantial Questions of Law No.(ii)

Whether the plaintiff is entitled to any share in the suit property?

Both the questions being related are taken up together.

23. The perusal of the plaint and the written statement reveals that

the plaintiff and the defendant had same biological father namely

Nathuni Choudhary and the defendant was given in adoption to Man

2026:JHHC:2300

23

Kumari by a deed of adoption as back as in the year 1944. The plaintiff

in the plaint has not questioned the legality and validity of the adoption

of the defendant by Man Kumari. Further, the learned 1

st

appellate court

has rightly observed that even if he would have questioned the

adoption, the same would have been barred by limitation.

24. This Court is of the view that the learned 1

st

appellate court has

rightly taken note of the aforesaid fact and rightly come to a conclusion

that the point of adoption of the defendant by Man Kumari could not be

gone into in the present suit. It is further not in dispute that the Schedule

A property belonged to Man Kumari, who had adopted the defendant

by registered deed of adoption in the year 1944. However, the deed of

adoption itself was challenged by Bhagwat Prasad Bhagat, who had

married the sister of Man Kumari.

25. The aforesaid genealogy reveals that Kali Charan Bhagat had

two wives one of them was Man Kumari, who had no issue and another

wife had a daughter Jamuna Devi, who in turn had seven daughters

including Sabitri Devi and Sabitri Devi was married to Nathuni

Choudhary and both the defendant and the plaintiff were the sons of

Sabitri Devi and Nathuni Choudhary.

26. The property of Man Kumari i.e. Schedule A property of the

present suit during her lifetime was allocated to Bhagwat Prasad Bhagat

and Dwarika Prasad, and the Schedule B property of the present case

was allocated only to Dwarika Prasad as per compromise decree.

Consequently, during her lifetime, Man Kumari was totally divested of

her property contained in Schedule A and admittedly the Schedule B

property in the present case is a part of Schedule A property. In such

circumstances, the Schedule B property became the exclusive property

of Dwarika Prasad, who acquired the same in the capacity of the

adopted son of Man Kumari during the life time of Man Kumari.

Otherwise also, the property of Man Kumari, would have devolved only

upon the defendant being her adopted son and not upon the plaintiff and

it is nobody’s case that the property in the hand of Man Kumari was

joint family property. The property of Man Kumari cannot devolve

upon children born through another wife of husband of Man Kumari.

2026:JHHC:2300

24

Further, another wife had no sons and only had a daughter, who in turn

had a number of daughters and Nathuni Choudhary (biological father

of the defendant and also the plaintiff) was grandson through one of the

daughter’s daughters. This Court is of the considered view that the

property of Man Kumari, cannot be said to be joint family property of

Nathuni Choudhary and his two sons, the plaintiff and the defendant

and the property was the exclusive property of the defendant, who was

given in adoption to Man Kumari to the extent it related to Schedule B

of the plaint and the remaining portion of the property of Man Kumari

was allocated to the husband of her sister in the compromise arising out

of earlier suit which was compromised at the 1

st

appellate stage between

the present defendant, Man kumari and husband of the sister of Man

Kumari.

27. Thereafter, the learned 1

st

appellate court examined the

agreement dated 23.12.1948, marked Exhibit 9, which contained both

the old holding no.224 and the new holding no.315 of the suit property.

The court recorded that the plaintiff had categorically stated at

paragraph 34 of his evidence that the new holding no.315 of the suit

property came into being in the year 1949-50. The court further

observed that the mention of new holding number in the recital of the

alleged agreement, as back as on 23.12.1948, clearly proved that the

agreement dated 23.12.1948 was a colorable and tainted document

devoid of any credibility.

28. The 1

st

appellate court further scrutinized the agreement in the

light of the deposition of the plaintiff, who was examined as P.W. 7. He

deposed that the agreement was executed by Dwarika Prasad Bhagat

and Man Kumari in his presence. However, at the same time, during his

cross-examination, he has deposed that he came to know about the

agreement in the year 1977, after the death of his mother (Sabitri Devi).

The court observed that such evidence of P.W. 7 was inconsistent,

which also makes the agreement completely unacceptable and

unbelievable. The court ultimately held that, on the basis of said

agreement, the entire case of the plaintiff for his half share in the suit

property is not acceptable.

2026:JHHC:2300

25

29. The court also considered the case of the plaintiff that he had

contributed a sum of Rs.2,000/- to meet the expenses of litigation of the

previous suit and the appeal. The court rejected such plea by recording

a finding that the plaintiff himself was dependent from the year 1948 to

1954-55 and was penniless and he could not have contributed any

amount in the litigation as claimed by him. The court thereafter

observed that the plaintiff claimed that he was in occupation and

possession of only two rooms of the suit house standing on the suit

premises and has stated so in his evidence also. The court observed that

the plaintiff did not claim possession over any other portion of the suit

property and held that the plaintiff had not made out a case of joint

possession of the entire suit property by the parties including himself.

The court then held that in view of the suit property being vested in the

defendant Dwarika Prasad Bhagat after his adoption by Man Kumari,

there was no room or scope for a case of unity of title to the suit property

between the parties.

30. The court also observed that the plaintiff had not stated in his

plaint as to when he came in occupation and possession of the two

rooms. The court held that since there was no unity of title, the plaintiff

could not claim occupation and possession of the two rooms as a title

holder of the suit property. The court ultimately held that the plaintiff

was merely in permissive possession of the suit property as claimed by

the defendant in the written statement. The court also observed that

there is no dispute that prior to adoption in question, the suit property

stood in the name of Man Kumari, which stood admitted by the plaintiff

in his evidence and ever since the said adoption, all documents and

papers had stood in the name of the defendant Dwarika Prasad Bhagat.

The court also observed that no doubt the plaintiff has produced a

number of municipal tax receipts with respect to the suit property all of

which stood in the name of either Man Kumari or in the name of

Dwarika Prasad Bhagat and none of these municipal receipts save and

except Exhibit 1 disclosed that the plaintiff had paid the municipal taxes

in question. While referring to Exhibit 1, the court observed that it

revealed that the municipal tax was paid through the plaintiff on

2026:JHHC:2300

26

26.05.1989 i.e. after the institution of the suit by him. The court held

that the municipal receipts could not create any claim of title in favour

of the plaintiff with respect to the suit property.

31. The learned 1

st

appellate court recorded a finding that the suit

property was not joint Hindu family property. The 1

st

appellate court

held that there were no unity of title and no unity of possession with

respect to the suit property between the parties, and the plaintiff never

claimed to be in joint possession of the entire suit property, rather he

was in possession of only two rooms. The learned 1

st

appellate court

has recorded a finding of fact that the plaintiff was in permissive

possession of said two rooms.

32. Admittedly, the suit property belonged to Man Kumari, who was

married to Kali Charan Bhagat as his 2

nd

wife after death of his 1

st

wife.

The full sister of Man Kumari was married with Bhagwat Prasad

Bhagat. From the first wife, Kali Charan Bhagat had a daughter namely,

Jamuna Devi and Jamuna Devi, inter alia, had a daughter namely,

Sabitri Devi married to Nathuni Choudhary and they had two sons, the

plaintiff and the defendant. The son of Nathuni Choudhary was given

in adoption to Man Kumari by registered deed of gift way back in the

year 1944 and the deed of adoption was challenged by the husband of

the sister of Man Kumari in T.S. No.18 of 1947, which was decreed,

against which, F.A. No. 11 of 1949, was filed which ended in a

compromise and the terms of compromise as recorded in the impugned

judgement passed by the learned 1

st

appellate court reveals that the

plaintiff of the said suit accepted that the defendant of the present suit

was adopted and in the said compromise, the schedule A property was

allocated jointly to the husband of the sister of Man Kumari and to the

adopted son of Man Kumari – the defendant of the present suit and out

schedule A property, the schedule B property was allotted only to the

defendant of the present suit-the adopted son.

33. This Court finds that the specific case of the plaintiff was that the

plaintiff had incurred huge expenses in conducting the previous suit and

the suit property (Schedule B) was thrown in the joint family

comprising of the plaintiff, the defendant and their biological father

2026:JHHC:2300

27

(Nathuni Choudhari) for which the plaintiff heavily relied upon the

agreement – Exhibit-9, and therefore, the property in the suit was

claimed to be partitioned ½ and ½ between the biological brothers, the

plaintiff and the defendant. However, at the same time, the adoption

deed of the year 1944 of the defendant by Man Kumari was not under

challenge.

34. Thus, in 1944, Man Kumari adopted the great-grandson of her

husband's second wife, born through the daughter of that second wife.

The genealogical table is as under: -

Kali Charan Bhagat (Husband) Bhagwat Prasad Bhagat (Husband)

| |

| | Koshal Kumari

Man Kumari Another wife

|

Jamuna Devi (daughter)

|

(Sabitrai Devi & 6 other daughters)

|

Nathuni Choudhary (husband of Sabitri Devi)

|

Dwarika Prasad (defendant) and Biswanath Prasad (plaintiff)

35. This Court is of considered view that Schedule B property

belonging to Man Kumari having been allotted to the defendant of the

present case in the compromise decree in which Man Kumari as well as

the defendant were also parties and admittedly the defendant of the

present case was the adopted son of Man Kumari, the said property

became the exclusive property of the defendant of the present case.

Since the defendant of the present case was the adopted son of Man

Kumari, the relationship of the defendant with his biological father, as

father and son, stood completely severed, and under such

circumstances, it cannot be said that the defendant of the present case

formed a joint family with his biological father and his biological

brother (the plaintiff).

36. The plea of the plaintiff that the property was thrown in the joint

family by the defendant and that the plaintiff had incurred expenses

with respect to the previous litigation concerning the suit property, and

the reliance on the agreement dated 23.12.1948, have been rejected by

the learned 1

st

appellate court by citing numerous reasons. Further, the

learned 1

st

appellate court has also recorded that even the plaintiff did

2026:JHHC:2300

28

not claim joint possession of the entire schedule B property. The

learned 1

st

appellate court has held that there was no unity of title and

unity of possession with respect to the suit property (Schedule B). The

findings of the learned 1

st

appellate court have been summarized above.

This Court finds no perversity in the matter of appreciation of evidences

placed on record by the learned 1

st

appellate court and this Court also

finds that the judgment has been passed by the learned 1

st

appellate

court in accordance with law after taking into consideration every

aspect of the matter.

37. As a cumulative effect of the aforesaid findings, the substantial

question of law no. (i) is answered against the appellants (plaintiff) and

in favour of the respondents (defendant) by holding that even after

adoption of the defendant by Man Kumari, Nathuni Chaudhuri

(biological father of the defendant) and his two biological sons, namely,

the plaintiff and the defendant cannot be said to constitute a joint Hindu

family and hence cannot be said to be in occupation of joint family

property. The defendant got separated in all respects from the family of

his biological father upon his adoption by Man Kumari (his nani’s step

mother).

38. Further, while answering the 2

nd

substantial question of law

against the appellants (plaintiff) and in favour of the respondents

(defendant), it is held that the Schedule B property was the exclusive

property of the defendant and the plaintiff is not entitled to half share

of the same as prayed for in the title suit.

39. Accordingly, this appeal is dismissed.

40. Pending interlocutory application, if any, is closed.

41. There shall be no order as to costs.

42. The office is to prepare decree accordingly.

43. Let a copy of this Judgment be communicated to the concerned

court through Fax/E-mail.

Pronounced on 29.01.2026

Saurav/- (Anubha Rawat Choudhary, J.)

Uploaded on 29.01.2026