1. This appeal has been filed against the judgement dated 05.07.2023 (decree dated 18.07.2023) passed by learned District Judge I, Palamau at Daltonganj in Partition Appeal No.26 of 2010 affirming the judgement and decree dated 23.04.2010 (decree signed on 12.05.2010) passed by learned Sub-judge II, Palamau at Daltonganj in Partition Suit No.117/2004.

2. The learned counsel for the appellants has submitted that the appellants were the defendants in the suit and, though they filed written statements (except defendant no. 4), they did not lead any evidence before the court. Consequently, the court proceeded under Order VIII Rule 10 of Code of Civil Procedure and the suit was decreed.

3. The learned counsel submits that the specific case of the plaintiffs was that the entire suit property was owned by Thakur Sao, who had a wife, namely, Moti Devi, and the defendants are the descendants through Moti Devi. Their further case was that upon the death of Moti Devi, Thakur Sao married Shivrani Devi in the year 1955 and the plaintiffs claimed that they are the descendants of Thakur Sao through Shivrani Devi.

4. The learned counsel has submitted that the suit was partly decreed only in connection with part of the suit property to the extent of 2.25 acres, as the plaintiffs could produce documents regarding ownership of the property in the name of Thakur Sao only to that extent. He submits that though the defendants did not adduce any evidence, but as per the written statement, Shivrani Devi was not the wife of Thakur Sao and, consequently, the plaintiffs were not born out of a wedlock between Shivrani Devi and Thakur Sao. It was their further case that Shivrani Devi was the wife of one Kauleshwar Ram. He has submitted that in the written statement at paragraph 12, a specific statement was made to prove that Shivrani Devi was the wife of Kauleshwar Ram and that she had purchased a property in the year 1957 in which the name of her husband was shown as Kauleshwar Ram. He submits that as per the case of the plaintiffs, Thakur Sao had died in the year 1986.

5. The learned counsel submits that the case of the plaintiffs was that Shivrani Devi had married Thakur Sao in the year 1955. He has also submitted that the documents which have been considered by the learned trial court to decree the suit are the voter list, ration Card and school transfer certificate, which could not be said to be documents to show that Shivrani Devi was the wife of Thakur Sao.

I.A. No.317 of 2026

6. The learned counsel for the appellants has submitted that I.A. No.317 of 2026 has been filed seeking to adduce additional evidence before the 2nd appellate court by bringing on record a copy of sale deed no.5775 dated 16.02.1957 executed by Ramchandra Ram in favour of Smt. Shivrani Devi, wife of Kauleshwar Ram. A photocopy of the said document has been annexed with the interlocutory application. He submits that in ground no.11 of the memo of appeal, it has been stated that a separate petition under Order XLI Rule 27 is to be filed for additional evidence.

7. During the course of hearing and upon perusal of the interlocutory application, the learned counsel for the appellants is not in a position to explain as to why the defendants failed to participate in the trial and further in spite of filing appeal before the 1st appellate court, why no steps were taken for adducing additional evidence.

8. In paragraph 4 of the interlocutory application, it is stated that Brahmdeo Prasad Agrawal, who was appellant no.2 in Partition Appeal No.26 of 2020, died on 25.06.2023 and after his death, his legal heirs searched his box and came across sale deed no.5775 dated 16.02.1957 and thereafter they showed the document to the advocate and ultimately the interlocutory application was filed.

9. The learned counsel for the appellants has produced a copy of the written statement wherein, though it is mentioned that Shivrani Kaharin had purchased certain property, but the details of such property have not been disclosed in the written statement also.

10. This Court is of the considered view that in the written statement as produced by the learned counsel for the appellants during the course of hearing, there is no specific details with regard to the sale deed, that is, date and number mentioned in the written statement which is sought to be adduced as additional evidence at this 2nd appellate stage through I.A. No.317 of 2026. It is also important to note that the plaintiffs had produced enough oral and documentary evidence to show that they were sons of Thakur Sao and it is not in dispute that their mother was Shivrani Devi. In the aforesaid circumstances, no useful purpose will be served by allowing the additional evidence. Further, there is no cogent explanation as to why the defendants did not participate in the trial and did not adduce any evidence, either oral or documentary.

11. In view of the aforesaid facts and circumstances, I.A. No.317 of 2026 is hereby rejected.

12. So far as the main appeal is concerned, this Court finds that the suit was filed seeking a preliminary decree for partition claiming 2/7 share in favour of the plaintiffs with respect to the suit properties. The learned trial court recorded that defendant nos.1 to 3 and 5 to 9 had appeared and filed written statement on 09.03.2005, but they left pairvi from 25.01.2006 and in the meantime the case was running for appearance of defendant no.4, who did not appear in spite of repeated opportunities. Repeated opportunities were granted to the defendants, but they did not turn up, and the trial was undertaken under the provision of Order VIII Rule 10 of Code of Civil Procedure. Consequently, defendant nos.1 to 3 and 5 to 9 had not come before the court to support the pleadings of their written statement.

13. The trial court also recorded that from bare reading of the written statement, it appeared that they denied the relationship with the plaintiffs and also denied that the plaintiffs were members of the joint family. The trial court framed the points for decision as follows:

                  “1. Whether there is unity of title and unity of possession to the suit land between the parties?

                  2. Whether the plaintiffs are entitled to get 2/7th share in the suit property?”

14. The learned trial court, after considering the oral and documentary evidence, ultimately decreed the suit by holding that the parties had unity of title and unity of possession, only to the extent of 2.25 acres of land. The court also recorded that the plaintiffs pleaded and adduced evidence to prove that Thakur Sao had married two wives and 1st wife was Moti Devi, who died in 1952-53 and from the wedlock of Thakur Sao and Moti Devi five sons were born and they are the defendants and from the second wife Smt. Shivrani Devi, the plaintiffs were born.

15. The trial court also referred to the documentary evidences placed on record including the election identity card of the plaintiffs showing that they were the sons of Thakur Sao; transfer certificate issued by the Headmaster of Ganesh Lal Agarwal Vidyalaya, Daltonganj dated 08.07.1976, in which Thakur Sao was mentioned as the father of plaintiff no.1, which was marked as Exhibit 2; and the ration card indicating that the plaintiffs were the sons of Thakur Sao. The court further observed that there was no document on record to disbelieve these documents establishing the relationship between the plaintiffs and Thakur Sao. Apparently, there was no dispute that the mother of the plaintiffs was Shivrani Devi. The trial court held that the plaintiffs had proved that the plaintiffs and the defendants constituted joint family and there was unity of title and unity of possession with respect to a portion of the suit property for which documents were produced by the plaintiffs. Ultimately, the trial court held that plaintiff no.1 had 1/7th share, plaintiff no.2 had 1/7th share, and decreed the suit with respect to 2.25 acres of land for which documents were produced to show that the property belonged to Thakur Sao. The trial court held as follows:-

                  “15. So, far the share of the plaintiffs is concerned, according to the oral evidence of plaintiffs that title holder for the part suit land i.e. 2.25 acres. Thakur Sao died leaving behind six sons and one daughter wife of the Thakur Sao also died. So, according to law plaintiff no.1 has 1/7th share and plaintiff no.2 have also 1/7th share i.e. plaintiffs have 2/7th share. In the part land of suit land i.e. 2.25 acres. There is unity of title and unity of possession over the part area of suit land i.e. 2.25 acres of the parties. It is joint property. There is no evidence before the court to disbelieve the jointness of the parties. Therefore, it is ordered that a preliminary decree of partition with respect to part land of suit land i.e. 2.25 acres is given to the plaintiffs to the extent of 2/7th share with contest. Plaintiffs are entitled to get further relief as to cost of the suit.”

16. The defendants were the appellants before the learned 1st appellate court, and the learned 1st appellate court also gave a concurrent finding after formulating the point for determination as to whether the judgement and decree of the trial court suffer from any illegality or irregularity or was bad due to any defects of law and was fit to be set aside.

17. However, the learned 1st appellate court has corrected the error committed by the learned trial court so far as defendant no.4 is concerned. The appeal was dismissed with modification in the trial court’s judgment declaring 2/7th share of the plaintiffs and that the decree was against the contesting defendants no.1 to 3 and 5 to 9 and ex parte against defendant no.4. The 1st appellate court found and held the proceeding against defendant no.4 was ex parte.

18. This Court finds that the learned courts have passed the judgement based on the materials on record, which does not suffer from any illegality. The relationship of the plaintiffs with their father Thakur Sao was duly proved based on both oral and documentary evidences placed on record. No perversity has been pointed out by the learned counsel of the appellants in the matter of appreciation of evidences by the court. No question of law, much less any substantial question of law is involved in this case. This Court finds no merit in this appeal, which is accordingly dismissed.

19. Let a soft copy of this order be communicated to the court concerned through FAX/email.