Jharkhand High Court
Vijay Kumar Sharma Son Of Late Om Prakash ... vs Bodhraj Sharma Son Of Shri Om Prakash ... on 14 March, 2018
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
F.A.53 of 2004 and 19 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.53 of 2004
With
F.A. No.19 of 2012
------
Vijay Kumar Sharma Son of Late Om Prakash Sharma, resident of Nawabrai Lane, Indrapuri, Road No. 1, P.S. Sukhdeo Nagar, P.O. Hehal, District- Ranchi .... .... .... Appellant (in both cases) Versus Bodhraj Sharma Son of Shri Om Prakash Sharma, resident of Indra Puri Road No.1, Ratu Road, P.O. Hehal P.S. Sukhdeo Nagar, District-
Ranchi .... .... ... Respondent (in both cases)
------
For the Appellant : Mr. Sanjay Kr. Dwiwedi, Advocate
For Respondent : Mr. Amresh Kr., Advocate
------
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------
By Court:. Heard the parties.
2. The defendant-appellant has preferred First Appeal No.53 of 2004 against the judgment and decree dated 21.07.2004 passed by the Subordinate Judge-II, Ranchi in Partition Suit No.153/2000 whereby and where under the learned court below has decreed the suit on contest and has ordered that a preliminary decree showing half share of the plaintiff in suit properties be prepared and while carving out the share of the parties the pleader commissioner shall take into consideration that minimum inconvenience is caused to the parties. The defendant- appellant has preferred the First Appeal No.19 of 2012 against the final decree dated 25.11.2011 passed by the Subordinate Judge-II, Ranchi in the said Partition Suit No.153/2000.
3. The case of the plaintiff in brief is that the plaintiff and defendant are full brothers. They are Hindu by religion and are governed by Mitakshra School of Hindu Law. The plaintiff and defendant through two registered sale deeds dated 12.07.1977 marked as Ext. 1 and the sale deed dated 12.10.1990 marked as Ext.1/A, purchased two properties in their joint name. Property purchased by sale deed dated 12.07.1977 is Schedule 1 F.A.53 of 2004 and 19 of 2012 '1' property of the plaint and property purchased by sale deed dated 12.10.1990 is Schedule '2' property of the plaint. It is the further case of the plaintiff that plaintiff and defendant contributed equal amount for Schedule '1' and Schedule '2' property of the plaint and thereafter they constructed building by making equal contribution and they are in the joint possession of the properties and there has not been any partition between the parties. The plaintiff requested the defendant to amicably partition the suit property but the same was not accepted by the defendant, hence, this suit has been filed by the plaintiff.
4. The case of the defendant on the other hand is that the defendant has alone paid the consideration amount for purchase of the said two properties but the plaintiff is the younger brother of the defendant hence his name has been shown in the sale deed. It is also the case of the defendant that the suit property has already been partitioned between the parties in the year 1992 and the property has been divided in equal shares between the parties by oral partition. On the first floor of the building, the parties are residing in separate blocks in their respective shares and the plaintiff is enjoying the western portion while the defendant is enjoying the eastern portion. It is further the case of the defendant that only stair case of the building has been kept for enjoyment of both the parties and that the plaintiff did nothing towards the acquisition of the properties or construction of the building but the defendant being the elder brother and considering the fact that the plaintiff is residing with him, has already given equal share to the plaintiff. It is also the case of the defendant that the plaintiff after partition is doing separate business at Lah Kothi, Ratu Road and defendant is doing separate business as Piska More Itki Road, Ranchi under the name and style of Prakash Engineering Works. Previously the plaintiff and the defendant were doing partnership business which was dissolved and plaintiff took all his shares in cash and share by executing necessary documents in this regard. It is further the case of the defendant that the plaintiff took Rs.33,000/- from the defendant for the shop situated at Itki Road.
5. On the basis of the pleadings of parties the following eight issues were framed:-
2F.A.53 of 2004 and 19 of 2012
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff valid cause of action for the suit?
(iii) Is the suit barred by adverse possession and ouster?
(iv) Has the suit been properly valued and is the court fee paid sufficient?
(v) Is their unity at title and possession between the parties to the suit?
(vi) Whether there has been a previous Partition in the year 1992 as alleged by the defendant?
(vii) Is the plaintiff entitled to a decree of Partition with respect to half share in the properties in the suit as claimed by him?
(viii) To what other relief or reliefs if any is the plaintiff is entitled to?
6. In support of its case, the plaintiff besides Ext.1 and 1/A being the sale deeds has also proved Ext.2 and 2/A being the carbon copy of the ledger and Ext.3 is the carbon copy of the Balance-sheet. The plaintiff also examined 5 witnesses including him.
7. The defendant proved the Panchnama marked Ext. A, declaration made by the defendant marked Ext. B, declaration made by the plaintiff marked Ext. C and other documents. The defendant also examined seven witnesses including him.
8. After taking into consideration both the oral and documentary evidences adduced by the parties, learned court below answered the issue nos. 1,2,5 and 7 in affirmative and issue nos. 3,6 and 8 in negative and decreed the suit as indicated above.
9. Mr. Sanjay Kr. Dwiwedi, the learned counsel for the appellant submitted that the learned court below failed to properly appreciate the evidence in the record and ignored the fact that the plaintiff has neither included the other joint property between the parties in the suit nor they have impleaded the other members of the family and basing on the evidence on record, the learned court below ought to have held that there was prior partition between the plaintiff and the defendant. It is further submitted by the learned counsel for the appellant that the advocate commissioner erred by including the room constructed on the second 3 F.A.53 of 2004 and 19 of 2012 floor on the eastern portion of the building in the measurement as the same is not the subject matter of suit between the parties. Hence, it is submitted that the advocate commissioner erroneously came to the conclusion that the defendant is in occupation of more portion of the property in terms of the carpet area than that of the plaintiff and the advocate commissioner has ignored the fact that the respondent has constructed a separate stair case for going to the first floor and has not mentioned the same in his report. Hence, it is submitted that the impugned judgment and preliminary decree as well as the final decree passed by the learned court below in Partition Suit No.153/2000 be set aside and this appeal be allowed.
10. Mr. Amresh Kumar the learned counsel for the respondent on the other hand, defended the impugned judgment passed by the learned court below and submitted that there is no illegality committed by the learned court below and the learned court below has considered the evidence in the record in right perspective. It is further submitted that though a detailed objection was filed by the defendant in the learned court below against the report submitted by the advocate commissioner but nowhere it was mentioned in that objection that the advocate commissioner has excluded construction of any separate stair case by the plaintiff respondent and having not done so it is not open for the defendant-appellant to raise a new fact for the first time at the stage of final hearing of this appeal without seeking any prior permission of this Court. Hence, it is submitted that this appeal being without any merit be dismissed.
11. After hearing learned counsel for both the parties and after perusing the record the following two points for determination crop up for consideration in these appeals:-
(i) Whether the learned court below has properly appreciated the evidence in the record?
(ii) Whether the learned court below was proper in accepting the report submitted by the advocate commissioner basing upon which the final decree has been passed?
12. Out of the five witnesses examined by the plaintiff, P.W.1- Vinod 4 F.A.53 of 2004 and 19 of 2012 Kumar, P.W.2- Mahendra Singh and P.W.3- Ajay Kumar Pandey, have stated that the suit property was joint between the parties and there has not been any partition between the parties to the suit, oral or otherwise.
13. P.W.4- Gagan Kumar Sahu is a formal witness and he has proved the sale deed which has been marked Ext.1 and 1/A.
14. P.W.5- is the plaintiff himself. P.W.5 besides having corroborating the averments made in his plaint has also proved the documents which have been marked Ext.2, 2/A, 3 and 3/A.
15. From the side of defence, D.W.1- Arun Kumar has stated that the parties are residing in their separate portion of the property.
16. D.W.2- Sunil Sharma in para-3 has stated that there has been written partition between the parties in which the Eastern portion was allotted to his father being the defendant and Western portion was allotted to the plaintiff. As per the partition, they are in respective possession of their property. He has also proved the documents which have been marked as Exhibit D/1 (money receipt) , D/2 (signature of the plaintiff) and D/3 (endorsement made by the plaintiff on the money receipt). P.W.5 has also proved the documents which have been marked as Exhibit A (panchnama), B (declaration made by the defendant and C (declaration made by the plaintiff).
17. D.W.3- Sunil Malhotra has stated that parties are living separately in their respective share in the house and they are having separate mess and they are also collecting rent from their respective tenants.
18. D.W.4- Sanjiv Sharma has also stated that the plaintiff and defendant are living in their respective share of the house and the stair is in joint possession.
19. D.W.5- Kamlesh Kumar Singh in para-1 has stated that there was a written partition between the parties and a list was prepared in respect of the property after a Panchayati. On being proved by him his signature on the said Panchayti, has been marked as Ext. D/4 and in view of the said Panchayati, the parties are living separately in their respective shares of the property.
20. D.W.6- Vijay Kumar Sharma is the defendant himself, besides 5 F.A.53 of 2004 and 19 of 2012 corroborating the averments made in his written statement, he has also stated that his father purchased a shop at Pathankot in the district of Gurudaspur which is in the name of his mother and his father is alive.
21. D.W.7- Umesh Kumar Srivastav has stated that there was an oral partition in respect of the property and the parties are having separate mess and the talk of the partition took place in his presence but he does not know whether the parties have kept the separate tenants in the property or not.
22. The first point of determination So far as the contention of the plaintiff-appellant regarding improper appreciation of the evidence by the learned court below is concerned on perusal of the record I find that the D.W.6- Vijay Kumar Sharma in paragraph-26 has admitted that the property at Ranchi was purchased out of the income of the family and in paragraphs -24 and 25 he has stated that he has no other income except the income from the family. This indicates that the properties were jointly purchased. It is a settled principle of law that, it is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily, because the law presumes that the members of a Hindu family are joint as has been held by the Hon'ble Supreme Court of India in paragraph- 15 in the case of Indranarayan v. Roop Narayan and another reported in AIR 1971 SC 1962. Needless to mention that in this case the defendant pleads prior oral partition; hence it is for the defendant to prove partition. The basic aspects that are required to be stated and proved in relation to partition are, the composition of the joint family or coparcenary that is, the members comprising of it, the existence of the properties that are held by it, the shares that are allotted to various coparceners and in particular, the person pleading the partition. In this case the plaint does not contain these aspects. It is pertinent to mention here that though it is the case of the defendant that there was an oral partition but the defendant has not pleaded the exact amount of property apportioned to the parties in the said oral partition nor any specific date or month of the said oral partition has been pleaded.
23. Now coming to the evidence of the defendant regarding partition, 6 F.A.53 of 2004 and 19 of 2012 though the case of the defendant is that there was an oral partition but D.W.2- Sunil Kumar has deposed that the properties were partitioned on the basis of panchnama but in para-33 he admitted the fact that the partition of house, share and lands are not shown in the panchnama. D.W.4- Sanjiv Sharma, in para-3, 4 and 5 of his cross-examination has deposed that the papers of the partition were prepared and Plot No. and Khata No. are also shown in that paper and the same has been filed. The D.W.1- Arun Kumar in para-7 failed to state the boundary of the disputed plot and in para-9 he failed to say the name of the tenants. D.W.3- Sunil Malhotra in para-7 has stated that he has not seen the partition documents. D.W.5- Kamlesh Kumar Singh in para-14 has stated that the documents showing partition of the house and shop was prepared and the same has been filed in the court.
24. In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Ambadas Bukate, 1996 (6) SCC 373, the Hon'ble Supreme Court of India reiterated that if the parties to an oral partition reduce the transaction to a formal document which was intended to be evidence of partition such document is compulsorily required to be registered and observed as under :
" partition, specially among the coparceners, would be a "Transfer" for purposes of Registration Act, 1908 or not has been considered in Nani Bai v. Gita Bai Kom Rama Gunge (AIR 1958 SC 706) and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would fall within the mischief of S. 17(1)(b) of the Registration Act under which the document is compulsorily registrable."
25. In this case it is not the case of the defendant that the panchnama marked Ext.A is a formal document which was intended to be evidence of partition, though as already indicated above the witnesses of the defendant deposed as if the panchnama marked Ext.A is a formal document which was intended to be evidence of partition. So inter alia in the absence of such pleading and it being not a registered document panchnama marked Ext.A cannot be treated to be the evidence of partition 7 F.A.53 of 2004 and 19 of 2012 between the parties to the suit.
26. Hence, taking into consideration the evidence in the record, I have no hesitation in holding that the evidence in the record is insufficient to indicate that there was a partition of the admitted joint suit property between the parties by metes and bounds and the evidence in the record as already discussed above is sufficient to show that the suit property is the joint property of the parties to the suit and the learned court below has rightly appreciated the evidence in the record. So, the first point of determination is answered in affirmative. Hence, the plaintiff is entitled to a decree for partition of half of the share. Therefore, the judgment dated 21.07.2004 passed in Partition Suit No.153/2000 and the preliminary decree made on its basis of, is confirmed.
27. The Second point of determination So far as the second point of determination, as to whether the learned court below was proper in accepting the report submitted by the advocate commissioner basing upon which the final decree has been passed is concerned, the objection regarding the report submitted by the advocate commissioner is mainly that the advocate commissioner erred by including the room constructed on the second floor on the eastern portion of the building in the measurement as the same is not the subject matter of suit between the parties. It is submitted that the advocate commissioner erroneously came to the conclusion that the defendant is in occupation of more portion of the property in terms of the carpet area than that of the plaintiff and the advocate commissioner has ignored the fact that the respondent has constructed a separate stair case for going to the first floor and has not mentioned the same in his report. After going through the detailed objection filed by defendant in respect of the said report in the court below, I find that though a detailed objection was filed by the defendant in the learned court below against the report submitted by the advocate commissioner and considering the report and objection thereto filed by the defendant the learned court below accepted the report of the Advocate Commissioner but nowhere it was mentioned in that objection that the advocate commissioner has excluded construction of any separate stair case by the plaintiff respondent. There is neither any 8 F.A.53 of 2004 and 19 of 2012 pleading nor any evidence in the record to the effect that the construction of the second floor on the portion of the property in possession of the defendant was constructed after filing of the suit. The defendant has not raised any objection in respect of the construction of any stair case by the plaintiff in the land in his possession. In the absence of that I have no hesitation in holding that the report of the Advocate Commissioner was considered by the learned court below in right perspective by accepting the second floor construction to be the suit property and has been taken into consideration for the partition in course of preparation of final decree. I also find that keeping in view the facts and circumstances of the case; the final decree has properly been prepared in terms of the report of the Advocate Commissioner deputed for the said purpose. I do not find any discrepancy or any illegality in either the report submitted by the Advocate Commissioner or in the final decree prepared there on. So, the second point of determination is also answered in the affirmative.
28. Accordingly, the final decree dated 25.11.2011 passed by the Subordinate Judge-II, Ranchi in Partition Suit No.153/2000 is also confirmed and these appeals being without any merit is dismissed but in the circumstances without any costs.
29. Let the lower court record be sent back to the learned court below with a copy of this judgment.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th March, 2018 AFR/ Animesh 9