Patna High Court
Ganesh Singh And Ors vs Prabhunath Singh & Ors on 25 June, 2010
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No.562 OF 1977
Against the judgment and decree dated 16.05.1977
passed by Sri Dinesh Narain Dwibedi IVth Additional Sub
Judge- Chapra in Partition Suit No. 166 of 1968.
Sita Devi & Ors. ...............Defendants/appellants.
-Versus-
Prabhunath Singh & Ors. ......... (Plaintiffs/respondents)
For the appellants : M/s Ram Suresh Rai, Sr. Advocate
Mr. Kamala Prasad Rai, Advocate
For the respondents: Mr. P.K. Shahi, Sr. Advocate
Mr. Purnendu Singh
Mr. Pronoti Singh, Advocate
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar This First Appeal has been filed by the defendants/appellants against
Sahoo, J.
the judgment and decree dated 16.05.1977 passed by Sri Dinesh Narain .
Dwibedi, the learned IVth Additional Sub Judge-Chapra in Partition Suit No. 166 of 1968 decreeing the plaintiffs/respondents suit for partition to the extent of their half share in the property mentioned in detail in schedule-I and II to the plaint.
2. The plaintiffs/respondents filed the aforesaid suit for partition on the facts which may be stated in brief that Harnam Rai, the common ancestor had two sons; Kashi Rai & Krishna Rai. Kashi Rai had two sons; Ramavtar Rai & Parichhan Rai. Parichhan died issueless, as such, his line 2 extinct. Ramavtar had two sons; Sanga Rai & Gati Rai. Sanga Rai had three sons, namely, Hargovind Rai, Ramshubhag Rai & Mahadeo Rai. The second son of Ramavtar Rai, namely, Gati Rao had only one son, RamKrit Rai whose son is defendant No. 1, Ganesh Rai. The defendant No. 2, 3 & 4 are the sons of Ganesh Rai, the defendant No. 1.
3. The first son of Sanga Rai, namely, Hargovind had one son, Ram Nagina Rai whose two sons are the plaintiffs/respondents. Ramshubhag Rai, the second son of Sanga died issueless leaving behind his widow, Gulabo who also died subsequently. The third son of Sanga Rai, namely, Mahadeo died prior to 1935 leaving behind a son, Ramjatan Rai who is defendant No. 5. The defendants No. 6, 7, 8 & 9 are the sons of defendant No. 5. It may be mentioned here that the property described in schedule I to the plaint is the property of Ramshubhag Rai, the second son of Sanga. The property described in schedule-II to the plaint belonged to the branch of Krishna Rai, the second son of Harnam Rai. The said Krishna Rai had one son, namely, Bhishma Rai who had two sons; Saudagar Rai & Jhanak Rai. Saudagar Rai had only one son, Jaigovind, who died issueless, as such, his line extinct. Jhanak Rai died leaving behind two sons; Rajgovind Rai and Singer Rai. Rajgoving Rai had only one son, Rampukar Rai who died issueless in 1933 leaving behind his widow, Nanhaka @ Deosundara who is defendant No. 10. It is the case of the plaintiffs that this Nanhaka Kunwar @ Deosundara re-married in 1935 with Chhedi Singh and from Chhedi Singh she had one son, aged about 28 years and one daughter, aged about 22 years on the date of filing of the Partition Suit. The second son of Jhanak Rai, namely, Singer Rai died issueless leaving behind Most. Bahura Kunwar, his widow who also died in the year, 1968 prior to institution of the suit for 3 partition. Accordingly, Rampukar Rai was the last male holder of the land of the family of Krishna Rai. For better appreciation of the genealogy table, the same is reproduced hereinbelow.
4. The further case of the plaintiffs is that Rampukar died issueless in 1933 leaving behind no issue. His widow , the defendant No. 10 was young, so she married in 1935 with Chhedi as a result of which she met with her civil death regarding the family of Rampukar and the property of Rampukar were jointly inherited equally by Ramkrit , Ramshubhag & Hargovind Singh who were agnates of equal degrees because Mahadeo had already died prior to 1935 & was not alive in 1935 when the succession to property of Rampukar opened. The property of Rampukar has been described in schedule-II of the plaint. The further case of the plaintiffs is that on the death of Hargovind, his son, Ram Nagina and on his death, the plaintiffs 4 succeeded to the properties of their grandfather, Hargovind. Ramshubhag Rai, the second son of Sanga died issueless leaving behind widow, Gulabo who also died subsequently. Therefore, the properties of Ramshubhag were divided half and half between Ram Nagina, the father of plaintiffs and Ramjatan, the defendant No. 5. In view of these facts, the plaintiffs claim that in the properties of Rampukar as described in detail in the schedule-II of the plaint, they have got half share. The defendants No. 1 to 4 have got 1/3rd share and the defendants No. 5 to 9 have got 1/6th share. Likewise, so far property of Ramshubhag described in detail in schedule-I of the plaint was claimed to be inherited by Nagina, father of plaintiffs and defendant No. 5 after death of Gulabo to the extent of half and half. Therefore, the plaintiffs claimed half share in schedule-I also.
5. The plaintiffs further case is that the defendants No. 1 & 5 obtained some illegal sale deeds said to have been executed by defendant No. 10 in the name of their relation, namely, Ramjanam & Ramjatan Rai of Fateh Rai Ke Tola. The said two persons never came in possession of schedule-II lands. Transaction was sham transaction. Subsequently, the defendants No. 1 & 5 obtained sale deeds in their names from the aforesaid two persons of Fateh Rai Ke Tola. The further case is that the said defendant No. 1 & 5 obtained collusive sale deeds in the name of Ram Nagina Singh, the father of the plaintiffs without the knowledge of Ram Nagina for the purpose of creating evidence. The said sale deed was never acted upon and therefore, neither the father of plaintiffs nor the plantiffs further claim any possession of schedule-II lands as purchaser. According to the plaintiffs, they claim in joint possession of schedule-II lands by inheritance after remarriage of defendant No. 10 who has been living in Deoriya with her husband, Chhedi Singh since 5 after her marriage in 1935. On these grounds, the plaintiffs prayed for the reliefs of partition as aforesaid.
6. The defendant No. 10 filed written statement supporting the plaintiffs case. The defendant Nos. 1, 2 and 5 to 7 flied a joint contesting written statement. From perusal of the written statement, it appears that the main defence is that after death of Ram Pukar, his widow Nanhka came in possession of his properties till 1942. In 1942, she sold the entire properties to RamJatan & Ramjanam of Feteh Rai Ke Tola, for Rs 2,000/- and put them in possession. After selling the property as aforesaid, she went to her Naihar, Sobat and since then she is living there. The vendees of Fateh Rai Ka Tols sold nine bighas of land to defendant No. 1 in August, 1944, five bighas land to defendant No. 5 in 1944 and three bighas land to Ram Nagina , father of the plaintiff in March, 1945 and the vendees accordingly, came in possession of their purchased lands. They were mutated and were and are paying rent after mutation. The case of joint inheritance as pleaded by the plaintiffs regarding the land of Rampukar was denied. Subsequently, they divided the lands of Rampukar according to their purchase and came in separate possession for more than 12 years openly and adversely as such, they have prescribed title by adverse possession.
7. So far the lands of Ramshubhag Singh as described in detail in schedule-I to the plaint, the case of the defendants is that Ramshubhag Singh executed a will in September, 1941 in respect of his entire properties in favour of defendant No. 6, Sukhdeo stipulating therein that till the lifetime of Gulabo Kunwar, she will remain in possession and after her death the defendant No. 6, Sukhdeo Rai will inherit the property and accordingly, on the death of Gulabo, defendant No. 6 became absolute owner of property of 6 Ramshubhag and is in possession. The plaintiffs have no share so far schedule-I land is concerned.
8. The further case is that the two persons of Fateh Rai Ke Tola had no relation with these defendants and that on partition, the lands mentioned in schedule-I to W.S. was allotted in favour of the father of plaintiff. The lands described in schedule-II of the W.S. was allotted to defendant No. 1 and the lands of schedule-III of W.S. were allotted to defendant No. 5 and accordingly, they are coming in separate possession. The father of plaintiff, namely, Ram Nagina himself purchased the lands from the two persons of Fateh Rai Ke Tola after payment of consideration. After the death of Ram Nagina, the plaintiffs are coming in possession on the purchased land.
9. The further case of the defendant is that, Nanhka Kunwar, the widow of Rampukar never remarried and she never lived unchaste life. Besides these main pleadings, the defendants have also raised various legal pleas and on these grounds, the defendants/appellants prayed for dismissal of the suit.
10. On the basis of the pleadings of the parties, the learned court below framed as many as nine issues. After trial, by the impugned judgment and decree, the learned court below came to conclusion that Nanhka Kunwar remarried Chhedi of village, Deoriya in 1935 as a result of which she met with her civil death and the entire properties of her husband , Rampukar were inherited by Ramkrit Singh, Ramshubhag Rai and Hargovind Singh as nearest agnates of equal degrees. The learned court below so far schedule-I property is concerned, found that the plaintiffs are entitled to 1/4th share in Plot No. 595 of Khata No. 343. In rest property, detailed in schedule-I, the plaintiffs are entitled to half share. While deciding the share of plaintiffs 7 regarding schedule-I property belonging to Ramshubhag Rai, the learned court below did not rely upon the will on the ground that it was not probated.
11. It may be mentioned here that at the time of hearing of this First Appeal, it was pointed out that an application under Order 41 rule 27 has been filed on behalf of the appellants for adducing additional evidence to bring on record the judgment and decree passed in the Probate case filed by the defendant, Sukhdeo Rai. The respondents submitted that against the said judgment and decree granting probate, the defendants have filed First Appeal No. 102 of 1980. On the joint prayer of the parties, therefore, the said First Appeal No. 102 of 1980 was also heard alongwith this First Appeal. The Claim of the plaintiff in the Partition Suit regarding schedule-I property is contested by the defendants on the basis of this will and therefore, the decision on the question i.e. the decision in the first appeal 102 of 1980 will decide the controversy between the parties regarding the properties of Ramshubhag Rai as described in schedule-I to the plaint. In view of the fact that the appeal arising out of the judgment and decree sought to be brought on record as additional evidence is being heard alongwith this appeal, the defendants/appellants did not press the application for additional evidence.
12. The learned senior counsel, Mr. Rai appearing on behalf of the appellants submitted that the learned court below has misread the pleadings of the parties. According to him, although there was denial in the written statement, that Nanhka Kunwar has got no alias name as Deosundara Devi, but the learned court below committed an error of record by saying that the defendants have admitted the alias name of Nanhka. Mr. Rai further submitted that Nanhka Kunwar & wife of Chhedi namely, Deosundara Devi are different persons but the learned court below proceeded to decide the 8 case as if they are same person and has wrongly given much emphasis on Ext-6, the so-called Pariwarik Pustika. According to him, this Ext-6 is not admissible in evidence. The learned senior counsel further submitted that while discussing the issues regarding re-marriage of Nanhka in 1935, the learned court below has discussed only the oral evidences and ignored the documentary evidences. According to the learned counsel, the three Jarpeshagi deeds dated 13.11.1937 (Ext-L/5), dated 13.7.1939 (Ext-L/2) and dated 8.3.1941 (Ext-L/4) which are registered documents falsify the story of re-marriage of Nanhka in 1935. The learned counsel further submitted that as widow of Rampukar, Nanhka Kunwar executed the said Jarpeshagi deeds in favour of strangers to the family but the learned court below ignored the effect of those documents. The learned counsel further submitted that said Nanhka Kunwar executed sale deeds in favour of Ramjanam & Ramjatan of Fateh Rai Ka Tola in 1942 as widow of Rampukar and unless the said sale deeds are avoided within the prescribed period, the plaintiffs cannot get any relief because according to the learned counsel the sale deeds are not void ab initio. The learned counsel further submitted that the defendants/appellants have made specific case that widow of Rampukar never re-married and she after selling the property went to her Naihar and since then, she is living there but the learned court below wrongly found to the contrary to the effect that she married in 1935 with Chhedi.
13. The learned senior counsel further submitted that the simple suit for partition was not maintainable and the suit was time barred but the learned court below held wrongly that question of limitation was not pressed. According to the learned counsel, even if the question of limitation was not raised, then also according to section 3 of the Limitation Act, it was the duty 9 of the court to have dismissed the suit as it was time barred because the sale deeds sought to be avoided are of the year 1942, 1944 & 1945. A detail written argument has been filed on behalf of the appellants elaborating the submissions of the learned counsel.
14. On the other hand, the learned senior counsel Mr. Shahi appearing for the plaintiffs/respondents submitted that the learned court below has meticulously examined the oral as well as documentary evidences and has rightly found that widow of Rampukar Nanhka Kunwar ra-married in 1935. Mr. Shahi further submitted that Nanhka Kunwar , the widow of Rampukar who is defendant No. 10 in the suit herself, has admitted the case of the plaintiffs. According to Mr. Shahi, she admitted her remarriage with Chhedi Singh in her pleading as well as in evidence and in Ext-5, she admitted her alias name as Deosundara Kunwar. Mr. Shahi further submitted that Ext-6 is a public document which was marked as exhibit without objection and therefore, before this appellate court, the appellant cannot object the admissibility of the documents. Mr. Shahi further submitted that there are overwhelming evidences on record in support of the re-marriage of Nanhka Kunwar with Chhedi Singh in 1935 and relying on those evidences, the learned court below has rightly found that she re-married in 1935 with Chhedi Singh. On the basis of this, the learned senior counsel, Mr. Shahi submitted that once it is held that Nanhka @ Deosundara remarried in 1935, then after 1935, she had no right to execute either Jarpeshagi deeds or the sale deeds in favour of anyone. Since she had no right, she could not convey any title to anybody and therefore, the documents are void documents. According to Mr. Shahi, the void documents are not required to be set aside by instituting a separate suit. On these grounds, the 10 respondents submitted that the appeal is liable to be dismissed.
15. In view of the above contentions of the parties, the following points arise for consideration in this appeal:-
( i ) Whether the plaintiffs/respondents are entitled to a share as claimed by them with respect to schedule-I property and whether the learned court below has rightly found so? ( ii ) Whether the plaintiffs/respondents are entitled to a share as claimed by them in respect to schedule-II property and the finding of the learned court below on this point is correct?
FINDINGS
16. Point No.I: So far the property mentioned in schedule-I to the plaint is concerned, according to the plaintiffs, the schedule-I property belonged to Ramshubhag Rai who died issueless leaving behind his widow Gulabo. On the death of Gulabo, the property was partitioned half and half between the plaintiff's father and defendant No. 5. On the contrary, according to the defefndants, during his lifetime, Ramshubhag Rai had exdecuted a will in favour of his widow and Sukhdeo Rai, the first son of defendant No. 5. In the will, it was mentioned that after his death, the widow will remain in possession of the property and on her death, the property will devolve on Sukhdeo Rai. A Probate Case was filed by Sukhdeo Rai. The Probate Case was pending when the Partition Suit was decided. Therefore, the learned court below did not look to the will in view of provision as contained in section 213 of the Indian Succession Act. During the pendency of this first appeal, the Probate Case was allowed and the will was probated in favour of Sukhdeo Rai, the 11 defendant No. 6. Agaist the said judgment and order, the plaintiffs/respondents herein filed first appeal No. 102/1980 before this court. As stated above, while hearing this first appeal, on the prayer of both the parties, said first appeal No. 102/1980 was also heard with this first appeal because the defence of the defendants/appellants of this first appeal regarding schedule-I property is the same as made out in the Probate Case by defendant No. 6. In other words, so far schedule-I property is concerned, the written statement of this Partition Suit is same as that of Probate Application in the Probate Case. I heard both the first appeals together and judgment is being delivered one after the other. After hearing the parties, I have already dismissed the first appeal No. 102/1980 and therefore, now the fact remains that so far property of Ramshubhag Rai is concerned as mentioned in detail in schedule-I , the will has been probated in favour of Sukhdeo Rai, Therefore, I find that so far the property of Ramshubhag Rai is concerned, the defendant No. 6 is the absolute owner according to will and the plaintiffs have got no share in the property of Ramshubhag Rai and they cannot claim partition. The findings of the learned court below on this point are, therefore, reversed and the judgment and decree so far it relates to the property of Ramshubhag Rai is concerned, are set aside.
17. Point No.II: According to the plaintiffs case, the widow of Rampukar remarried in 1935 with Chhedi Singh and she is living with him at Deoriya. She has one son, Chandrama aged about 28 years and one daughter, aged about 22 years from Chhedi Singh. Further since she remarried in 1935, she met civil death so far Rajkumar's family is concerned and after her remarriage, the property of Rampukar was inherited by Ramkrit Rai, Ramshubhag Rai and Hargoving Singh jointly being the nearest agnates of 12 equal degree. On the contrary, according to the defendants, Nanhka Kunwar , the widoe of Rampukar never remarried with Chhedi Singh. According to them, she sold the entire lands of Rampukar to Ramjanam & Ramjatan of Fatehpur Ke Tola in 1942 and she went to her Naihar and is living there. Subsequently, the said Ramjanam and Ramjatan of Fatehpur Ke Tola sold the properties by three registered sale deeds in favour of RamNagina, the father of plaintiffs, Ramjatan, the defendant No. 5 and Ganesh the defendant No. 1 in 1945 and 1944 respectively. Now therefore the question arises is as to whether Nanhka Kunwar, the widow of Rampukar remarried in 1935 or not? If it is found that she remarried with Chhedi Singh in 1935, then she had no right, title, interest or possession over the properties of Rampukar as she met her civil death and therefore, she could not transfer any right, or title to the transferee in 1942. If it is found that she had not remarried, she lived in her Naihar as pleaded by defendants, then the case of the defendants is bound to be accepted because before the court there is only two versions, one pleaded by the plaintiff i.e. she married in 1935 & the other pleaded by the defendants i.e. she never remarried with Chhedi Singh. In view of the above facts, the court has to find out as to which version is correct and the court cannot make a third case. To prove their respective case, the parties have adduced oral as well as documentary evidences.
18. Before entering into the evidences, it may be mentioned here that in Paeragraph-4 of the plaint, it is specifically pleaded that the widow of Rampukar , i.e. Nanhka Kunwar has alias name as Deosundara. In the genealogy table given in detail in the plaint also, her name has been described as Nanhka Kunwar @ Deosundara Kunwar. In Paragraph-10 of the W.S. the defendants/appellants have not at all denied this pleading 13 regarding the alias name.
19. The learned counsel for the appellants submitted that in Paragraph-8 of the W.S. it is specifically pleaded that the description and address of defendant No. 10 has been wrongly mentioned which means that the case of the plaintiff has been denied. In my opinion, this pleading in the W.S. of the contesting defendants is neither here nor there. On the basis of this pleading, it cannot be said that the defendants have denied that Nanhka Kunwar has no alias name. Except this, there is no other statement in the pleading of the contesting defendants. From perusal of the evidences, it appears that P.W. 1 Arjun Singh who is one of the plaintiffs, at Paragraph-10 has clearly stated that Nanhka Kunwar was known as Deosundara Kunwar also. There is no denial on the part of the defendants to this evidence. The defendants have not at all adduced any evidence denying the alias name of Nanhka Kunwar as Deosundara Kunwar. In the plaint, she has been described as wife of Chhedi Singh and is made defendant No. 10. In the genealogical table also, same description has been given. So far pleading in Paragraph-8 of W.S. is concerned; there is denial to the effect that the description is wrong. Likewise, the address of defendant No. 10 has been given which has been denied in Paragraph-8 of the W.S. to the effect that the address is wrong. Therefore, so far alias name of Nanhka Kunwar as Deosundara Kunwar is neither denied in the written statement nor in the evidence of the defendants. In my opinion, therefore, the said facts stand admitted. I, therefore, find no force on the submission of the learned counsel appearing for the appellant that Deosundara Kunwar and Nanhka Kunwar are different persons.
20. The next question is as to whether Nanhka Kunwar remarried in 1935 with Chhedi Singh or not?
14
21. P.W. 1 Arjun Singh is one of the plaintiffs. At Paragraph-9 of his evidence, he has clearly stated that Rampukar died in the year, 1340 Fasli and in 1342 Fasli, Nanhka Kunwar re-married with Chhedi Singh of Deoriya. She has a son and a daughter. The learned counsel for the appellant submitted that this witness is incompetent to say about the marriage of Nanhka Kunwar with Chhedi Singh in 1935 because he was aged about 36 years on the date of deposition. So far this submission is concerned, also I find no force because at Paragraph-24, he has stated that he had learnt this fact from his father Ram Nagina and (defendant No. 5), Ram Jatan Singh. Moreover, the defendant No. 10 Nanhka Kunwar herself has been examined as P.W.3 in this case who has fully supported the plaintiffs case and has stated that she married with Chhedi Singh two years after death of Ram Pukar. She has given the age of her son as about 40 years on the date of her deposition, i.e. in the year, 1977. P.W. 2 has also stated that Nanhka remarried with Chhedi and they have a son, Chandrama and a daughter. From perusal of the evidence of P.W.1 at Paragraph-24 and P.W.2 in cross- examination, I find that they have got special means of knowledge about the relationship and therefore, their evidence is admissible. P.W. 4 at Paragraphs-4 & 11 and P.W. 7 at Paragraph-7 have stated about the remarriage of Nanhka Kunwar with Chhedi Singh at Deoriya. P.W. 8, Ghural Rai of Deoriya village has also stated that Nanhka Kunwar remarried with Chhedi Singh and he used to give milk to the family of Chhedi Singh. P.W.-14 is also resident of Deoriya. He has stated that he participated in the marriage of Nanhka Kunwar with Chhedi Singh in 1935. He has also stated that they have a son, Chandrama and a daughter. Chandrama and their daughter were addressing Chhedi Singh as "Babujee" and Nanhka Kunwar as "Maa". From 15 this evidence also, it appears that his evidence is according to Section 50/60 of the Evidence Act and is admissible.
22. The plaintiffs have proved Ext-5, a sale-deed dated 22.06.1969 said to have been executed by Deosundara Kunwar describing herself to be the widow of Chhedi Singh and Kaushar Singh, s/O Gariba Singh in favour of Dudhnath Mahto. As stated above, Deosundara Kunwar is the alias name of Nanhka Kunwar.
22. Ext-6 is Pariwarik Pustika which has been marked as Exhibit without objection. Moreover, it is a public document prepared under Bihar Panchayat Rules, 1959 in discharge of official duty. In the said Ext-6, Deosundara Kunwar has been shown to be the wife of Chhedi Singh.
23. The learned counsel for the appellant submitted that the Ext-6 cannot be relied upon because it is inadmissible in evidence. The maker of the Ext-6 has not been examined. So far this submission is concerned; I find no force because as stated above, it is a public document. It is prepared in discharge of the official duty in the Panchayat. In the said Ext-6, Deosundara Kunwar has been described as wife of Chhedi Singh. In other words, in the family of Chhedi Singh, the name of Deosundara Kunwar and their son Chandrama and daughter's name appeared. The learned counsel for the appellant further submitted that the age mentioned in the Ext-6 is different than the case of the plaintiff. So far this submission is concerned, it may be mentioned that on the basis of the inconsistency regarding age only the relationship cannot be disbelieved.
24. On the otherhand, the defendants have examined witnesses who have denied that Deosundara Kunwar married with Chhedi Singh. D.W.-2 Ujjain Singh denied the remarriage of Nanhka Kunwar with Chhedi Singh but in the 16 cross-examination, at Paragraph-25, he has stated that he cannot say as to whether after two years of death of Ramkpukar, she remarried Chhedi Singh of Deoriya. He has also stated that he cannot say whether she has a son and daughter. D.W.-3 has also denied remarriage but in cross-examinations at Paragraph-18, he has stated that he never heard the name of Chhedi Singh. He, never, visited the house of any person named Chhedi Singh. He has also stated that he never talked with any person named Chhedi Singh. Likewise, D.W.-6 has also denied remarriage. In cross-examination at Paragraph-14, he has stated that he never made inquiries of remarriage or children of Nanhka Kunwar. Such is the evidence of D.W.-8, Jainarayan. It appears that both these witnesses, i.e. D.Ws.-6 & 8 are the resident of Naihar village of Nanhka Kunwar. D.W.4 in his evidence stated that the house of Ram Pukar collapsed and since after earthquake, he had not seen Nanhka Kunwar coming to house of Ram Pukar in the village. It may be mentioned here that earthquake occurred in 1934. Therefore, indirectly it can be said that this witness has admitted the fact that after 1934, Nanhka Kunwar never came to the village to the house of Ram Pukar which collapsed.
25. D.W. 12 has stated that in the house of Chhedi Singh, no woman named as Nanhka Kunwar or Deosundara Kunwar or Chandrama Rai, son of Chhedi Singh or Rajmati Devi, daughter of Chhedi Singh used to live. The persons named as above, are non-existent. D.W. 15 who is defendant No. 1 himself has denied remarriage. In the cross-examination, he has stated that he had never gone to Deoriya. He has also stated that he never inquired from anyone as to whether Nanhka Kunwar remarried or not with Chhedi Singh. He has also stated that he does not know anything about Chhedi Singh.
26. D.W. 20 is defendant No. 5, Ramjatan Singh himself. He has denied 17 remarriage of Nanhka Kunwar with Chhedi Singh and also denied about children out of their wedlock. He admitted his ignorance about any person named Chhedi Singh and his brother Kaushar. Therefore, from perusal of the oral evidence of the defendants, it appears that the defendants have adduced evidence in negative. The witnesses have only denied about remarriage with Chhedi Singh and about existence of son and daughter of Chhedi Singh and Nanhka Kunwar. This is their negative evidence and negative cannot be proved.
27. The learned counsel for the appellant submitted that there are overwhelming documents adduced by the defendants which will clearly indicate that Nanhka Kunwar never remarried with Chhedi Singh. The learned senior counsel, Mr. Rai gave much emphasis on the three Jarpeshagi deeds. Ext-L/2 is Jarpeshagi dated 13.07.1939 executed by Nanhka Kunwar and Bahura in favour of Sabhapati Singh. The redemption note on this Jarpeshagi is Ext-C/3. Ext-L/4 is Jarpeshagi deed dated 08.03.1941 and Ext-L/5 is Jarpeshagi deed dated 13.11.1937. Both these Jarpeshagi deeds were executed by Nanhka Kunwar in favour of Gurucharan and the redemption notes are Ext-C/1 and Ext-C respectively. The learned counsel Mr. Rai further submitted that P.W.1 in Paragraph-72 has admitted that they jointly redeemed the Jarpeshagi deeds and, therefore, all these facts disapprove the case of the plaintiffs that Nanhka Kunwar remarried with Chhedi Singh. So far this submission is concerned; also I find no force because from these deeds and redemption notes, it cannot be presumed that Nanhka Kunwar had not remarried Chhedi Singh. It can at best be said that during these periods also, Nanhka Kunwar was dealing with the property of Rampukar. Moreover, these Jarpeshagi deeds show that Nanhka Kunwar had only not executed the 18 Jarpeshagi deeds but with her Most. Bahua also joined. Admittedly, Most. Bahura was also maintenance holder. The other documents relied upon by Mr. Rai are Ext-D series. Ext-D/1 is the sale deed dated 25.4.1942 executed by Nanhka Kunwar in favour of Ramjanam and Ramjatan of Fateh Rai Ke Tola. According to the defendants in 1942, Nanhka Kunwar sold the entire property of Ram Pukar by this registered sale deed in favour of two persons named above of Fateh Rai Ke Tola. It may be mentioned here that only because she executed the sale deed, it cannot be presumed that she was living in the house of Ram Pukar in the village and had not remarried. It is the specific case of the plaintiff that defendant No. 1 and defendant No. 5 got the sale deed executed in favour of the said two persons and the sale deed is a sham transaction. One of the transferees has been examined as D.W.13. In Paragraph-12, he has stated that he had never seen the purchased lands. P.W. 3 Nanhka Kunwar who is defendant No. 10 in her evidence has specifically stated that Ganesh and Ram Jatan Singh, the defendant Nos. 1 & 5 got the sale deed executed and did not pay anything and fled away. Therefore, from these evidences it appears that the purchaser had not even seen the lands of Ram Pukar. Moreover, on the basis of these deeds, it cannot be said that Nanhka Kunwar never remarried with Chhedi Singh.
28. Ext-D is the sale deed dated 19.3.1945 executed by the said two persons of Fateh Rai Ke Tola in favour of Ram Nagina Singh, the father of the plaintiff. So far this deed is concerned, the plaintiffs have pleaded in the plaint that their father never purchased the lands and the defendants got the sale deed executed from the said two persons only to create evidence. It may be mentioned here that this sale deed in original has been produced from the custody of the defendants. Likewise, Ext-D/4 is dated 14.11.1944 executed by 19 the said two persons in favour of defendant No. 5 and defendant No. 1 respectively. From these sale deeds, it appears that the said two transferees from Nanhka Kunwar transferred the entire lands to the plaintiff's father and the defendant No. 1 & 5 in 1944 & 1945. On the basis of these sale deeds or the sale deed said to have been executed by Nanhka Kunwar, no presumption can be made that Nanhka Kunwar did not remarry Chhedi Singh.
29. As discussed above, the plaintiffs have adduced cogent and reliance evidence as well as documentary evidence. In Ext-5, the sale deed , the brother of Chhedi Singh also joined with Nanhka Kunwar @ Deosundara Kunwar. The witnesses as discussed above have clearly stated that Nanhka Kunwar @ Deosundara Kunwar remarried with Chhedi Singh. Nanhka Kunwar herself has been examined as P.W.-3 who has clearly admitted the fact. These evidenced adduced on behalf of the plaintiffs/respondents are positive evidence. The defendants have failed to prove their case by leading cogent evidence that Nanhka Kunwar is living in her Naihar and she never remarried. Their evidence is only denial about remarriage. The documents produced only shows that some transactions were made by her.
30. In view of the above discussions of the oral as well as documentary evidences adduced by the parties, I find that the plaintiffs have been able to prove the fact that Nanhka Kunwar @ Deosundara Kunwar remarried with Chhedi Singh.
31. So far remarriage in 1935 is concerned, it may be mentioned here that the death of Ram Pukar in the year 1933 has not been denied either in the pleading or in the evidence by the defendants. P.W. 1 in his evidence specifically stated that Ram Pukar did in 1340 Fasli and Nanhka Kunwar remarried in 1342 Fasli which corresponds to 1933 & 1935 respectively. 20 Nanhka Kunwar herself as P.W. 3 has stated that two years after death of Ram Pukar Singh she remarried with Chhedi Singh. It is specific case of the plaintiff that Chandrama Singh was aged about 28 years on the date of institution of suit in the year, 1968. In her evidence, Nanhka Kunwar, P.W. 3 has also stated that the age of her son is about 40 years on the date of her deposition in 1977. She has also specifically stated in her evidence that she remarried 40-41 years ago with Chhedi Singh. On the otherhand, there is no denial evidence about the age of Chandrama. The evidence adduced is only denial of remarriage. Therefore, the pleading pleaded by the plaintiff and the evidences adduced by the plaintiffs in support of the remarriage in 1935 is un- rebutted. The only case pleaded by the defendant and the witnesses examined are to the effect that there was no remarriage.
32. In view of the above discussions of the evidence, I find that the plaintiffs have been able to prove the fact that Nanhka Kunwar remarried with Chhedi Singh in 1935. The findings of the learned court below, on these points, are hereby confirmed.
33. In view of the finding that Nanhka Kunwar @ Deosundara Kunwar, the widow of Ram Pukar Rai remarried with Chhedi Singh in 1935, she met with civil death so far the property of Ram Pukar Rai was concerned and therefore, after remarriage in 1935, she had no right, title or interest to execute any documents conveying any right, title or interest in favour of anyone. It is well settled principles of law that if a person had no right, title or interest in the property, he cannot transfer anything which he himself; was not possessing. In other words, if she had no right, title or interest, she could not have transferred the right, title or interest regarding the property of Ram Pukar as after remarriage, she became the stranger to the family. Therefore, 21 by the sale deeds executed in favour of Ram Janam and Ram Jatan of Fateh Rai Ke Tola, no title or possession was transferred to them and in turn because they had not derived any right, title & interest or possession, they could not have transferred in favour of the defendant No. 1, the defendant No. 5 & father of the plaintiff. All these sale deeds are executed by a person having no right, title, interest or possession. Therefore, in my opinion, these sale deeds are void sale deeds and it is not necessary to institute a suit for setting aside them or for declaring them as void documents. In a suit, the plaintiffs can prove the same to be the void documents. In the present case, as discussed above, the plaintiffs have been able to prove that Nanhka Kunwar had no right, title, interest or possession over the property of Ram Pukar. Therefore, any sale deeds executed by her, are void. In such view of the matter, the argument of the learned counsel for the appellant that the simple suit for partition is not maintainable and the plaintiffs suit cannot succeed unless he prays for setting aside the sale deeds, has got no force.
34. On the death of Ram Pukar as has been found Nanhka Kunwar @ Deosundara Kunwar remarried with Chhedi Singh in 1935. Therefore, the property of Ram Pukar devolved upon Hargovind, Ramshubhag and Ramkrit because Mahadeo had already pre-deceased prior to 1935. All the said persons inherited the property being the nearest agnates of equal degree and they came in joint possession as co-tenants. There is no evidence regarding ouster and adverse possession adduced by the defendants. The plaintiff is required to prove his title only. It is for the defendants to prove ouster and adverse possession but they have failed to do so because there is no evidence to that effect. It is well settled principles of law that pleading is not the proof of the fact stated. To prove the fact, the evidence is necessary. I, 22 therefore, find no force in the argument of the learned counsel for the appellant that the defendants have prescribed title by adverse possession.
35. As pleaded by the plaintiffs, the property was inherited jointly as co- tenants by Hargoving, Ramkrit and Ramshubhag after remarriage of Nanhka. On the contrary, the case of the defendants/appellants is that Nanhka Kunwar sold the property to the persons of Fateh Rai Ke Tola who in turn sold the same by Ext-D series i.e. Exts-D, D/4 and D/5 as discussed above. We have seen that by these sale deeds, no title or possession has been validly conveyed. Now therefore the facts remains that there had been no partition according to their share regarding the property of Ram Pukar with respect to schedule-II property. So far respective share is concerned, there is no dispute between the parties and no challenge has been made on this point regarding the finding of the learned court below with respect to schedule-II property. In view of my above discussion, I find that the plaintiffs are entitled to decree for partition as claimed by them with respect to schedule-II property and therefore, the learned court below has rightly decreed the plaintiffs suit regarding schedule-II property. The finding of the learned court below on these points, therefore, needs no interference.
36. In the result, this First Appeal is allowed in part. So far the property of Ramshubhag Rai as described in schedule-I to the plaint and decreed by the impugned judgment and decree by the learned court below is concerned that part of the judgment and decree are hereby set aside. The plaintiffs/respondents partition suit regarding schedule-I is thus dismissed. So far the plaintiffs suit regarding the property of Ram Pukar as described in detail in schedule-II to the plaint and decreed by the learned court below by 23 the impugned judgment and decree is concerned, the plaintiff/respondents are held to be entitled for the partition of their share as decreed by the court below. The findings and that part of the judgment and decree of the learned court below are confirmed. The plaintiffs/respondents suit for partition is Patna High decreed regarding schedule-II property only. Court Dated the 25 th day of June, 2010
37. In the facts and circumstances of the case, the parties shall bear their AKV/AFR own costs.
(Mungeshwar Sahoo,J.)