Patna High Court
Ramdeni Singh And Ors. vs Kailash Singh And Anr. on 27 April, 1984
Equivalent citations: AIR1985PAT146, AIR 1985 PATNA 146, (1985) BLJ 347
JUDGMENT Ashwini Kumar Sinha, J.
1. This appeal is by the plaintiffs against a judgment of affirmation. The plaintiffs brought a suit for partition claiming 1/2 share in the suit properties described at the foot of the plaint. It involved lands of Khatas Nos. 580, 308 and 354 only situate in village Ajan.
2. The suit was not for partition of the lands appertaining to Khata No. 221. The plaintiffs did not make any averment in the plaint with regard to the lands of Khata No. 221.
3. In short the plaintiffs' case was that the lands of Khatas Nos. 580. 308 and 354 were still joint, and there was unity of title and possession with regard to these Khatas and the plaintiffs were entitled to 1/2 share in the land of these Khatas.
4. The other details about the case pleaded by the plaintiffs are not needed for the purpose of deciding the present appeal.
5. The suit was contested by defendant No. 2 (Kailash Singh). The defendant pleaded, Kailash Singh A. I. R. that there was no unity of title and possession with regard to the lands of the three Khatas sought to be partitioned by the plaintiffs, and, hence, according to the contesting defendants, the suit was not maintainable.
6. The contesting defendant came up with a story in his written statement that there was a family arrangement in or about 1925 amongst Mitbharan Singh, Basdeo Singh and Dubri Singh on the one side and Jagdeo Singh and Deo Narain Singh on the other. It is desirable to note here that Jagdeo Singh was the father of the plaintiff. According to the defendant lands of Khata No, 221 measuring 4.93 acres were recorded in the cadestral survey record of right in the name of Nanhak Singh (son of Baijnath Singh). The defendant pleaded that Nanhak Singh died issueless immediately after the cadestral survey and Mitbharan Singh and Nasib Singh being the close heirs of Nanhak Singh inherited the lands of Khata No. 221 and the lands of Khata No, 221 came in exclusive possession of Mitbharan Singh and Nasib Singh. The contesting defendant in his written statement stated as follows : --
That to sum up, Babu Jagdeo Singh and his branch under the aforesaid faimly arrangement got only the lands of Khata No. 221 and a portion of ancestral house under plot No. 2478, toward south. He since the aforesaid family arrangement had no right in, title to, concern with and possession over the lands of Khatas Nos. 354 and 308 and he had never any right, title, concern with and possession over the lands of khata No. 580.' (Para 21).
Again in para 24 of the written statement the defendant pleaded that Jagdeo Singh got the lands of khata No. 221 allotted to him exclusively in the aforesaid family arrangement and again the same was reiterated in para 31 of the written statement.
7. The trial court dismissed the suit It held that there was a family arrangement in which lands of khata No. 221 were allotted exclusively to Jagdeo Singh. It further held that there was no unity of title and possession between the parties over the suit lands. With this finding the trial Court dismissed the suit.
8. The plaintiff preferred an appeal against the judgment and decree of the trial Court The Court of appeal below dismissed the plaintiffs appeal though it held that the suit lands appertaining to said khatas were still joint property of the parties and there was unity of title between them. Further the Court of appeal below held that there was unity of title and possession between the parties with regard to the suit lands appertaining to suit khatas. It also held that there was no family arrangement in or about 1925 and the defendant had failed to prove the story of family arrangement.
9. Vhus the Court of appeal below categorically held that there was unity of title and possession between the parties with regard tm the suit lands appertaining to suit khatas. But still the court of appeal below non-suited the plaintiff on the ground that the plaintiff had not asked for partition of the land of khata No. 221 and suit for partial partition was not maintainable. It is pertinent to mention here with regard to khata No. 221 that the court of appeal below held that Nanhak Singh did not give his land to Jagdeo Singh. It further held as follows :--
'Under the circumstances, the lands of khata No. 221 belonging to Nanhak singh must have gone to Mittarbhan Singh and Nasib who were then alive and who being the sons of Bodhi Singh, cousin of Nanhak Singh, were the nearest heirs of Nanhak Singh.' So defendant's case that lands of khata No. 221 belonging to Nanhak singh were inherited by Mittarbhan Singh and Nasib Singh seems to be accepted. It also held thus : --
'Commutation of the rental of khata No. 221 in the name of Jagdeo Singh and subsequent grant of rent receipts in his name go to show that Mittarbhan Singh and Nasib Singh had brought the lands of khata No. 221 inherited by them into the hotchpot of the joint family property and so the lands appertaining to khata No. 221 also became joint family property.'
10. The court of appeal below having held as just quoted above came to the conclusion that the plaintiff had not included the lands appertaining to khata No. 221 in the suit property and had not sought partition regarding the same, and the plaintiff and the defendant were coparceners. In that view of the matter, the court of appeal below held that suit for partition brought by a coparcener against the other must embrace the whole of the family property so that there can be a complete and final partition. The court of appeal below held that suit for partial partition was against the general rule and as such the suit was not maintainable
11. The court of appeal below held that there was unity of title and possession with regard to the suit lands appertaining to suit khatas. From the discussion given above it is clear that it was nobody's case that lands of khata No. 221 were still joint. It was the defendant who introduced the story of family arrangement and according to the family arrangement the defendant pleaded that lands of khata No. 221 were given exclusively to the plaintiff. The defendant never pleaded that lands of khata No. 221 remained joint. The plaintiff has also not stated as such in his plaint. The defendant in his written statement has nowhere said that the lands of khata No. 221 were thrown in general hotchpotch of the family and therefore it became joint. Learned counsel for the appellant in the ends of justice, has not only taken me through the judgment of the trial court and the court of appeal below in detail but also took me through the plaint and the written statement. I am satisfied, on perusal of the written statement, that it was not the defendant's case that the lands of khata No. 221 were brought into the hotchpotch of the joint family property and that the lands appertaining to khata No. 221 also became joint family property. Such a case has not been pleaded by the defendant, I fail to understand, if this was nobody's case how could the court of appeal below make out a new case for the parties. It was not within the competence of the court of appeal below to make out a third case and non-suit the plaintiff on a case never pleaded by either of the parties. On a careful perusal of the judgment of the court of appeal below I am satisfied that the finding to the effect that the lands of khata No. 221 were brought in the joint family property is only an inference drawn by the court of appeal below on a misconstruction of a few paragraphs of the written statement. Having thus misconstrued the case of the parties and having made a third case which was never pleaded by the parties, the court of appeal below could not non-suit the plaintiff on a new case. Yes, if the defendant had pleaded that the lands of khata No. 221 also were joint and the plaintiff having not sought for partition of those lands, the suit was not maintainable the matter would have been different. But as I have already stated above, it was not pleaded as such by the defendant. Thus, in my opinion, the findings recorded by the court of appeal below on point No. 5 was not in accordance with law and I further hold that the finding on point No. 5 is unreasonable and perverse.
12. On the finding of the court of appeal below that the plaintiff had proved unity of title and possession with regard to the suit lands appertaining to suit khatas, the suit should have been decreed. However, as the court of appeal below has gone into point No. 5 i.e. about the maintainability of the suit (even though this issue was not pressed by the defendant in the trial court) and as I have already held above that the finding recorded by the court of appeal below on point No. 5 was not in accordance with law, the matter needs to be gone into afresh by the final court of fact.
13. In the result, this appeal is allowed and the judgment and decree of the court of appeal below are set aside. The case is sent back to the court of appeal below for a fresh decision, after hearing the parties on the materials already on the record. It is expected that the court of appeal below will decide the appeal in accordance with law.
14. Learned counsel appearing for the appellant submitted that the plaintiff be directed to file an application for amendment of plaint. As the case is remitted back to the court of appeal below, it will be for the court of appeal below to deal with the application for amendment of the plaint in accordance with law, if filed by the plaintiff.
15. Nobody has appeared for defendant respondent. In the circumstances, there will be no order as to cost.