SULO DEVI Vs. SITANATH MAHTO

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree dated 26.7.1999 passed by learned IInd Additional Judicial Commissioner, Khunti in Title Appeal No. 89 of 1996 dismissing the appeal filed by the appellant, and also the judgment and decree dated 17.10.1996 passed by learned Munsif, Khunti, Ranchi in Partition Suit No. 4 of 1987.

(2.) ON 27.4.2001, the following substantial question of law was

(3.) ON the other hand Mr. R. R. Tiwary, learned counsel appearing for the contesting defendants -respondents supported the judgments under appeal. He submitted that no such question of law arises in this second appeal at all. He further submitted that Tileshwari Devi was the original plaintiff no. 1 and the appellant was plaintiff no. 2. Tileshwari Devi got herself transposed as defendant no. 21 on her request, during pendency of the suit, leaving the appellant as the sole plaintiff. Then Tileshwari Devi filed her written statement denying and disputing the claim of the appellant based on the sale deed (Exhibit 1) that she never executed sale deed in favour of the appellant, rather the same was got executed by the appellant and her husband by practicing fraud, as she was given to understand that she was executing only a mortgage deed. She affirmed the sale made in favour of the contesting defendants. In such position, it was absolutely necessary for the appellant to amend her plaint if she wanted to make out a case of partition of her share on the basis of Exhibit 1 by clearly stating and proving that she derived title by Exhibit 1 and it was acted upon. He further submitted that for this reason the trial court had to say that it was not possible to decide the validity of Exhibit 1 in the present suit in the absence of necessary pleadings and evidences from the side of the appellant. He also submitted that the lower appellate court has gone to the extent that issue no. ix i.e., whether Exhibit 1 was legal, genuine and binding on the defendants; should not have been framed at all by the trial court in the absence of pleadings and evidences. He further submitted that it is pertinent to note that defendant no. 1 Sitanath Mahto is husband of the appellant.