JHARKHAND HIGH COURT ISSUES ORDER FOR AJOY BHANDARI V/S KINKAR BHANDARI AND ORS.

RANCHI, India, Sept. 9 -- Jharkhand High Court issued the following order on July 8:

1. Heard the learned counsel appearing on behalf of the parties.

2. This second appeal has been filed against the judgment dated 27.01.1993 and decree dated 17.02.1993 passed by learned 1st Additional District Judge, Dumka in Title Appeal No. 35/87/5/91 reversing the judgment dated 27th May 1987 and decree dated 12.06.1987 passed by learned Sub-ordinate Judge-III, Jamtara in Title Suit No. 17 of 1982/130 of 1986.

3. This appeal was admitted for final hearing vide order dated 09.03.1994 on the following substantial questions of law:

"Whether the finding of the learned appellate court is vitiated for making out a third case beyond the pleadings of the parties and the reasons assigned by the appellate court in reversing the judgment of the trial court are not tenable in law."

4. Learned counsel for the appellant, while giving the background of the case, has submitted that the suit was originally filed by Patu Bala Dasi claiming half share of the suit property. However, during the pendency of the case, she expired and Ajoy Bhandari was substituted as adopted son. The adoption was by way of registered deed of adoption dated 21.10.1981 (Exhibit-2) which was prior to filing of the suit and the suit was filed in the year 1982.

5. Learned counsel for the appellant has further submitted that before the learned trial court, a plea was raised that Patu Bala Dasi was not the legally married wife of Gurupada Alias Mangal Bhandari and therefore, the adopted son also did not acquire any right over the suit property. He has submitted that the registered deed of adoption was also challenged. He has further submitted that the learned trial court framed the following issues for consideration:

"1. Is the suit as framed maintainable?

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

3. Was Patu Bala Dasi or Nomita Bhandarin legally married wife of Mangal Bhandari?

4. Is Ajoy Bhandari legally adopted son of Patu Bala Dasi?

5. Is there unity of title and possession between the parties over the suit lands?

6. Is the plaintiff entitled to half share in the suit properties? 7. To what other relief, if any, is the plaintiff entitled?"

6. Issue no. 1 was not pressed and the learned trial court found no defect in the frame of the suit. All other issues, as framed by the learned trial court, were decided in favour of the plaintiff by holding that Ajoy Bhandari (the substituted plaintiff) was entitled to half share in the properties described in Schedule A, B and C of the plaint.

7. The learned counsel submits that the finding with regard to the marriage of Patu Bala Dasi with Mangal Bhandari has been recorded in paragraphs 4 and 5 of the trial court's judgment and the ultimate finding is recorded in paragraph

8. The defendants failed to prove that Nomita was the wife of Mangal Bhandari and there was enough evidence on record to show that Patu Bala Dasi and Mangal Bhandari were living as husband and wife. He further submits that the witnesses who had seen the marriage were P.W. 9, 10 and 11 and P.W. 11 was the son of the priest who had performed the marriage of Patu Bala Dasi with Mangal Bhandari. The learned counsel submits that the trial court decreed the suit in favour of the plaintiff.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=GWFLvJcsCcaCuP2ZVXdouoxePPpXJ8DlwZxSpQgruSYhwK2knKAxyOo%2FoA5Rtbnh&caseno=SA/9900184/1993&cCode=1&cino=JHHC010016651993&state_code=7&appFlag=)

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