Patna High Court
Ram Bahadur Nath Tiwary vs Kedar Nath Tiwari And Ors. on 25 March, 1976
Equivalent citations: AIR1977PAT59, AIR 1977 PATNA 59
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Birendra Prasad Sinha, J.
1. This is an appeal by the plaintiff. A suit for partition of one-third share in the properties described in the schedule attached to the plaint has been dismissed.
2. It will be relevant to give the genealogy of the family as given by the plaintiff. One Madho Nath Tiwari had five sons, viz., Gobind Nath Tiwari, Ram-lochan Nath Tiwari, Baldeo Nath Tiwari, Hardeo Nath Tiwari and Mahanand Nath Tiwari. Mahanand died issueless and his line became extinct. Hardeo died leaving behind a widow Jagrani Kuer. It was stated that some lands of the joint family were given to Jagrani Kuer for her maintenance which after her death devolved upon the three remaining brothers, viz., Gobind Nath Tiwari, Ramlochan Nath Tiwari and Baldeo Nath Tiwari. Gobind Nath Tiwari left behind a son Gokul Nath Tiwari and the letter's son Ram Bahadur Nath Tiwari is the plaintiff-appellant. Ramlochan Nath Tiwari had a son named Ramgan Nath Tiwari who died leaving behind him his widow Mt. Fulohra Kuer and a daughter Asharfi Kuer. Ramchan-dra Tiwari (defendant No. 7) is said to be the son of Asharfi Kuer. Baldeo Nath Tiwari died leaving behind four sons, Ramakant Nath Tiwari, Radhakant Nath Tiwari, Jagat Nath Tiwari and Jagdish Nath Tiwari. Jagat Nath Tiwari and Jag-dish Nath Tiwari are defendants Nos. 1 and 2, respectively. Ramakant Nath Tiwari died leaving behind him two sons, Ram Nath Tiwari and Kailash Nath Tiwari who are defendants Nos. 5 and 6, respectively. Radhakant Nath Tiwari died leaving behind him two sons Bijoy Nath Tiwari and Chuman Tiwari, who are defendants Nos. 3 and 4, respectively. This genealogy was disputed by defendants Nos. 1 to 6. According to them, Ramchandra Tiwari (defendant No. 7) was nobody and was unnecessarily made a party to the suit. Further, Gokul Nath Tiwari, father of the plaintiff, died leaving behind two sons, viz., Ram Bahadur (plaintiff) and Ramdeo alias Banka and four daughers, viz., Mt. Asharfi, Motia, Tilia and Jalia, and Ramgan Nath Tiwari died issueless leaving behind his widow Fulahara Kuer. It appears that defendant No. 8 Mt. Lachhminia Devi and defendant No. 9 Mt. Nagesara Kuer were Later added as parties to the suit. Defendant No. 10 Dipnarain Misra son of Ramgan Nath Tiwari's daughter and defendant No. 11 Ramdeo Nath Tiwari became intervenor defendants.
3. The case of the plaintiff, in short, was that the properties described in the schedule attached to the plaint were the ancestral properties of the parties to the suit and that the plaintiff had one-third share, defendants Nos. 1 to 6 had one-third share and defendant No. 7 also had one-third share in the properties. According to the plaintiff, the three branches of the family had been coming on in separate possession of the property in question but no partition had been effected by metes and bounds.
4. Defendants Nos. 8 and 9 did not enter appearance. Defendant No. 7 Ramchandra Tiwari appeared and filed a written statement supporting the case of defendants Nos. 1 to 6 and disclaiming his right of inheritance as well to the properties in suit. Defendant No. 11 filed written statement, his main defence being that Asharfi Kuer was not the daughter of Ramgan Nath Tiwari who had a daughter named Maharani whose son is defendant No. 10, Dipnarain Misra. Defendant No. 10, Dipnarain Misra filed a written statement but subsequently he put in an application after the close of the case disowning and withdrawing his case and praying to dismiss his claim without costs.
5. The contest was put up by defendants Nos. 1 to 6. Their case, inter alia, was that the suit was not maintainable, that the plaintiff had no cause of action and that there was no unity of title and possession. They further pleaded that defendant No. 7, Ramchandra Tiwari was nobody and was an unnecessary party to the suit. Ramakant Nath Tiwari and Radha Kant Nath Tiwary died after 1937. They also gave a geneological table at the foot of their written statement. According to them, the properties had been partitioned amongst the three brothers, viz., Gobind Nath Tiwari, Ramlochan Nath Tiwari and Baldeo Nath Tiwari, before the revisional survey and they got separate possession over their respective shares, and were recorded in the Khewat and Khatian. Some property was left ijmal which also was partitioned after the revisional survey. The parties have been coming on in separate possession and dealing with the properties with other persons as well as inter se. After the death of Fulahara Kuer, widow of Ramgan Nath Tiwari, her property came in possession of defendants Nos. 1 and 2, they being her nearest agnates. Ramgan Nath Tiwari had died issueless and defendant No. 7 was the son of Lachhmi Tiwari and not the nati of Ramgan Nath Tiwari.
6. The Court below, on a consideration of the evidence on record, found that there was no unity of title and possession and that partition had already been effected as alleged by defendants Nos. 1 to 6. It further found that Ramgan Nath Tiwari and Mt. Fulahara died issueless; that defendant No. 7 Ramchandra Tiwari was a stranger to the family and that defendants Nos. 1 and 2 being the nearest agnates of Ramgan Nath Tiwari, succeeded to his share in the property. It was further found that defendant No. 11 Ramdeo Nath Tiwari was not the son of Ramakant Tiwari. On these findings, the suit was dismissed with costs.
7. Shri Kailash Roy, learned Counsel appearing on behalf of the plaintiff-appellant, at the very outset stated that he would confine his arguments only in respect of the properties which, according to the defendants, were said to have been partitioned after the survey. As regards the properties claimed by the defendants to have been partitioned before the survey, Shri Roy very frankly submitted that he was unable to press the plaintiff's claim for partition.
8. The properties in suit are situated in four villages, viz., Chitakhal, Kelharue, Odikol and Kalyani. Chitakhal properties appertain to Khata Nos. 40 to 45, 50, 55 to 57, 71, 366 and 451, having a total area of 2l bighas 11 kathas 2 dhurs; Kelharua properties appertain to Khata Nos. 66, 96, 155, 199, 200 and 201, the area being 4 bighas 8 kathas 14 dhurs; Odikol properties appertain to Khata No. 173, having an area of 2 bighas 8 kathas 13 dhurs and that of Kalyani appertain to Khata No. 42, having an area of 5 kathas 8 dhurs. Thus, the total area of land in all the four villages comes to about 28 bighas 13 kathas and 17 dhurs. Shri Kailash Roy gave a figure of the lands said to have been partitioned before the survey. According to that the plaintiff was allotted 6 bighas, 19 kathas, 11 dhurs; defendants Nos. 1 to 6, 7 bighas 2 kathas 19 dhurs and Ramgan Nath Tiwari, 6 bighas 1 katha 14 dhurs in the three villages, namely, Chitakhal, Kelharua and Odikol. According to this, the total area said to have been partitioned before the survey comes to 20 bighas 4 kathas and 4 dhurs. This fact was not disputed by Shri Kamlapati Singh, learned Counsel appearing on behalf of defendants Nos. 1 to 6, respondents. According to Shri Roy, therefore, on the case of the defendants themselves an area of 8 bighas 9 kathas 13 dhurs remained to be partitioned after the survey, and remained ijmal between the parties. The defendants have claimed that this was also partitioned after the survey between the different branches. Shri Roy has further given us a break-up of the lands which are said to have remained ijmal after the survey. According to him, there remained 4 bighas 14 kathas 11 dhurs in Chitakhal under the Khata Nos. 45, 50, 55. 56, 57 and 451; 2 bighas 12 kathas 4 dhurs in Kelharua under Khata Nos. 16 and 96; 17 kathas 19 dhurs in Odikol under Khata No. 173 and 5 kathas 8 dhurs in Kalyani under Khata No. 42.
9. Shri Kailash Roy has submitted that the defendants have failed to prove their case of partition after the survey in respect of 8 bighas and odd lands and in that view of the matter, the suit ought to have been decreed at least in respect of the said lands. According to Shri Roy, where the properties remained joint and no ouster was pleaded, there was a presumption that the properties were joint and, even if the parties separately possessed certain lands, it would not defeat the claim for partition.
10. In support of his case, the plaintiff examined only himself. In his evidence, he stated that no partition had ever taken place with respect to the properties" in suit either before or after the revisional survey. He further stated that some of the lands in suit were cultivated separately by the parties for the sake of convenience and some of the lands were ijmal which were cultivated jointly with joint funds and the produce was divided amongst themselves. In paragraph six of his deposition he stated that separate possession was only in respect of some of the lands of Chitakhal, but the lands of other villages and part of the lands of Chitakhal were jointly cultivated by the parties. It may be stated here that this assertion is contrary to the facts and figures given by Shri Roy, and as stated above. Shri Roy had frankly admitted that at least 20 bighas 4 kathas and 4 dhurs of land in villages Chitakhal, Kelharua and Odikol had been partitioned between the three branches before the survey and they were in separate possession. In cross-examination, the plaintiff admitted that he could not give the total area of the ijmal lands. The plaintiff admitted that he executed zerpeshgi deeds separately. He could not give the total area of the ijmal lands claimed by him. As stated above, no other witness was examined on his behalf to support any of the statements made by him.
11. Shri Kailash Roy referred us to paragraphs 18, 19, 20 and 21 of the written statement filed on behalf of defendants Nos. 1 to 6. In these paragraphs of the written statement it has been stated how some of the lands were dealt with after the survey. Shri Roy submitted that the defendants have not said how the remaining 8 bighas and odd lands were partitioned and which plots were allotted to the different branches. He further submitted that the manner of partition after the survey was also not stated with reference to the various plots. In this context Shri Roy drew our attention to the evidence of D. W. 22 (defendant No. 2). In paragraph 11, D. W. 22 stated that all the lands in suit were partitioned before the survey and the three branches got their separate Khewats. Thereafter, he stated, about 2 or 3 bighas were left joint which were partitioned after the survey. According to Shri Roy, this evidence is contradictory to the case made out in the written statement. According to the figures given above, 8 bighas and odd lands had remained unpartitioned after the survey but according to the evidence of D. W. 22 only 2 or 3 bighas were left joint amongst the parties. Shri Roy submitted that no evidence could be allowed against specific pleadings of the parties and when the defendants could not prove their case of partition of the 8 bighas and odd lands after the survey, the suit must be decreed. He relied upon a decision of the Supreme Court in Mohammad Baqar v. Naim-un-Nisa Bibi, (AIR 1956 SC 548). I find that this case has no application to the facts of the present case. In support of their case of partition, defendants Nos. 1 to 6 also examined D. Ws. 14, 15, 20 and 21. D. W. 14, a resident of village Odikol, stated that he had seen some of the lands of the parties in suit in his village which had already been partitioned. D. W. 15 is also a resident of village Odikol, He also stated that all the lands in suit had been partitioned. D. W. 20 stated that the parties were cultivating the lands separately according to their shares and they were dealing with the property by executing deeds. Similar is the statement of D. W. 21 who spoke about the partition of the lands of village Chitakhal. It is true that these witnesses admitted that the partition did not take place in their presence, but their evidence cannot be brushed aside simply for that reason. They are residents of different villages where the lands in suit are situate. Some of them are quite old and, being residents of the village, have had the occasion to see the respective possession of the parties as also how the parties were dealing with those lands.
12. Various documents were brought on record in this case. According to the Khewat and Khatian, it appears that the parties were separately recorded in respect of their properties according to their shares. The area shown against their names is almost equal with a little difference. From the said entries it also appears that there were mutual dealings between the parties inter se. From some of the entries, it is clear that Gokul Nath Tiwari, father of the plaintiff, had been executing zarpeshgi deeds in respect of the lands which stood recorded in his name in the Khewat and the Khatian. R.S. Plot No. 566 of Khata No. 42 of village Chitakhal had been given in zarpeshgi by him to Ramgan Nath Tiwari before the revisional survey. In the boundary of such lands the ancestors of the plaintiff and the defendants are mentioned. Similarly, the lands held by defendants Nos. 1 to 6 exclusively, may be found from some Khewats and Khatiana (Exhibits M (1) and N (1) series).
13. Now, I shall take up some of the documents which show inter-party dealings in respect of the lands in question. Exhibit I (4)-l is a mortgage deed executed by Ramgan Nath Tiwari in favour of Ramakant Nath Tiwari and others. It is dated the 15th of April, 1925. This mortgage deed was in respect of three plots including Plot No. 253 of Khata No. 45, area 11 kathas. According to the figures given by Shri Kailash Roy, Khata No. 45 of village Chitakhal had not been partitioned before the survey. The revisional survey had been done in the year 1919. It is apparent that one of the branches was dealing with the property in respect of a portion of this Khata by executing a mortgage deed in favour of another party to the suit and not to any stranger. It is also relevant to mention that in Exhibit I (4)-1 the name of the plaintiff is mentioned in the boundary. Khata No. 45 had been jointly recorded in the names of Ramgan, Gokhula, Ramakant and his brothers. But against revisional Survey Plot Nos. 16, 40 and 253 of Khata No. 45, there is an entry that one Kuber Narain Tiwari was the mortgagee on behalf of Ramakant, Radhakant, Jagatnath and Jagdish (defendants). Out of six plots of this Khata, three plots had been mortgaged by defendants. Plot No. 177 containing trees had been recorded in the possession of persons who were in possession of the trees. Plot No. 724 was exchanged with revisional Survey Plot. No. 5 of village Kalyani. This shows that the parties had started dealing with Khata No. 45 also even before the revisional survey. In point of time, another document is Exhibit I (1) which is dated the 2nd of March, 1926, executed by Nandkesra, Kuer, mother of the plaintiff, in favour of Ramakant Nath Tiwari and others, defendants Nos. 1 to 6. This relates to several plots including Khata No. 96, Plot No. 697, area 7 kathas 14 dhurs, of village Kalharua. The total area of Khata No. 96 was 2 bighas 7 kathas 2 dhurs which, according to the figures given above by Shri Roy, had not been partitioned before the survey. It is significant that a portion of this plot had been given in mortgage by the plaintiff's mother to the branch of defendants Nos. 1 to 6. Another document is Exhibit F (1) as also Exhibit F (1)-1 which were executed on the 23rd July, 1934. They are deeds of exchange. By Exhibit F (1), Ramakant Nath Tiwari and others gave plot No. 354 of Khata No. 15, village Chitakhal, to Fulahra Kuer, wife of Ramgan Nath Tiwari, in exchange for plot Nos. 896 and 897 of Khata No. 451, having an area of 3 kathas 4 1/2 dhurs. In token of this exchange, Fulahara Kuer executed another deed which is Exhibit F (1)-1. Khata No.451 having an area of 6 kathas 1 dhur is also said to have been not partitioned before the survey. These documents show that the parties were dealing with the properties to the extent of their shares in this Khata. It may be stated that, according to the case of the defendants, Ramgan Nath, husband of Fulahra Kuer, had two shares in this Khata, which works out to about a little more than three kathas. These deeds of exchange exactly fit in with the case of the defendants. Exhibit E (1) is a sale deed dated the 26th of July, 1944, executed by the plaintiff in favour of Ramakant Nath Tiwari and others in respect of one katha 12 dhurs and odd lands appertaining to Plot Nos. 896 and 897 of Khata No. 451, village Chitakhal, It is stated in this deed that the total area of this khata was 6 kathas 9 dhurs previously, in which the plaintiff had one-fourth share and the defendants had three-fourths share. It is further stated in this sale deed that the vendees, i. e., defendants Nos. 1 to 6, had constructed their pucca house on the entire land. This document also entirely supports the case of the defendants. It is admitted by the plaintiff that in this Khata he had only one share which he sold to the defendants. This shows that the parties were dealing separately in respect of the lands in their possession and according to their respective shares. Shri Kailash Roy has submitted that these documents only show that undivided shares had been conveyed under these deeds. According to him, the parties had definitely a share in the property which they could sell or mortgage and they do not show that there was also a partition. According to Shri Roy, in none of these documents, there wag any admission of partition. In the face of these documents, it is difficult to agree with the contention of Shri Roy. The suit was filed on the 4th of April, 1961, and from some of the documents it will appear that the parties had started dealing with the properties separately according to their shares right from the year 1921, vide Exhibit I (1)-1, dated the 8th of August, 1921, under which Khata No. 45, having an area of 10 kathas 4 dhurs had been mortgaged by Ramgan Nath Tiwari to Tirth Nath Tiwari, a stranger to the family.
14. Shri Kailash Roy submitted that there was a presumption that the properties were joint unless the same was rebutted by good and cogent evidence. According to him that presumption had not been destroyed by either of the documents. He again referred to some stray statements made by D. W. 22 wherein it was stated that only 2-4 bighas of land had been partitioned after the survey. In this connection, he referred to the various decisions reported in AIR 1954 SC 355 (Nathoo Lal v. Durga Pra-sad); AIR 1973 SC 1130 (Brij Kishore Prasad Singh v. Jaleshwar Prasad Singh) and AIR 1959 Pat 331 (Santan Narain v. Saran Narain). In the case of Nathoo Lal (AIR 1954 SC 355), in paragraph 12 of the judgment, it was observed that the law presumes in favour of continuity of possession. It was a suit for possession of a certain property. The Courts had found the plaintiff to be in possession of a house even during the lifetime of one Laxmi in whose favour a deed of gift had been executed. It was held that even if the tenant residing in the house had vacated it and the plaintiff did not lock it, his possession would be presumed to continue till he was dispossessed by some one. This decision has no application at all to the facts of the present case. The case reported in AIR 1973 SC 1130 (Brij Kishore Prasad Singh's case) is also on different facts. There a suit for partition had been compromised but no decree had been passed. It was held that a subsequent suit for recovery of Khas possession was not barred. The case of Santan Narain (reported in AIR 1959 Pat 331) was one in which the plaintiff's claim for partition of properties had been dismissed on the ground that the suit was barred by res judicata. The previous suit had been decreed on compromise and a preliminary decree had been drawn up in terms thereof. In the latter suit out of which appeal to the High Court was preferred, the plaintiff claimed that the parties continued in joint possession according to their shares and that there had been no change in his possession as the previous partition decree proved to be infructuous. The only question urged in that case was that the present suit was not barred and that there was evidence which proved that the previous partition had not been effected and the parties continued to remain in joint possession of the disputed land as cosharers. It was held by this Court on facts, relying upon the oral evidence adduced by the parties, that they continued to remain in possession as before and the allotments made to the parties by the final decree were not brought into effect. It was further held that a co-sharer had a right to seek partition if for some reason there had not been actual breaking up of the title and possession of the co-sharer by actual possession by each of them of the specific portion of the joint property said to have been allotted to them; but the position will be different where there has been actual breaking up of the title and possession of the co-sharer. In the present case, it is clear from the evidence on record that the parties to the suit have been exercising separate possession not only over the properties admitted by the plaintiff to have been partitioned before the survey, but also over the properties claimed by the plaintiff to have remained impartitioned after the survey. The separate dealings by the plaintiff as well as by the defendants in respect of their specific shares are ample proof of the above fact. The above decision, in my opinion, does not assist the appellant. In the present case, the defendants claimed that all the properties had been partitioned, some before the survey and some after the survey. The pre-survey partition was admitted by Shri Roy. As regards the post-survey partition, it has been shown above that the parties were not only exercising their respective possession over the property but were also during with it lay executing various documents in respect of their specific shares. Thus, it must be found that the defendants had proved their case of partition of the remaining lands after the survey. Separate transactions by members of a joint family may not by themselves establish separation, but mutual transactions between two members of a family stand on an entirely different footing and they furnish a very strong evidence of separation. In order to prove partition, it must be established that the parties altered and intended to alter their title to the property and that there was a definite and unambiguous indication by the members of the family to separate and to enjoy their respective shares in severalty. In the present case, there is definite and unambiguous indication of this fact getting back to the year 1921, at least forty years before the filing of the present suit. In face of such an indication, it is not open to the plaintiff-appellant to make up and say that some of the properties still remained joint, " The presumption of jointness had been sufficiently rebutted by good and cogent evidence in the present case. Having considered the facts and circumstances of this case and the evidence adduced on behalf of the parties, I have no hesitation in holding, in agreement with the trial Court, that the defendants have proved their case of partition of the suit properties.
15. The other findings arrived at by the Court below, namely, that Ramgan Nath Tiwari and Mt. Fulahra Kuer died issueless, that defendant No. 7 Ramchandra Tiwari was a stranger to the family and that defendants Nos. 1 and 2 being the nearest agnates of Ramgan Nath Tiwari succeeded to his share in the property, were not challenged by Shri Kai-lash Roy. By putting up defendant No. 7 as heir of Ramgan Nath, the plaintiff tried to make out a false case. These findings, therefore, are affirmed.
16. In the result, this appeal must fail and the same is dismissed with costs. The judgment and decree passed by the Court below are affirmed.
Lalit Mohan Sharma, J.
17. I agree.