Patna High Court
Bhuthur Rai & Ors vs Mahadeo Rai & Ors on 1 May, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No. 765 of 1978
Against the judgment and decree dated 8.7.1978 passed by Sri Sankatha
Prasad, 6th Additional Subordinate Judge, Motihari, East Champaran in
Partition Suit No. 113 of 1975/ 25 of 1977.
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Jai Krishna Rai & Ors
.... .... Defendant 2nd Party/Appellants
Versus
Bharath Rai & Ors
.... .... Plaintiffs/Respondents
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Appearance :
For the Appellants : Mr. Kumar Udai Singh, Advocate.
Mr. Vijay Shankar Srivastava, Advocate.
For the Respondents : Mr. S. K. Majoomdar, Sr. Advocate.
Mr. Sunil Kumar Tiwary, Advocate
with him.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 01-05-2012
Mungeshwar 1. The defendants 2nd set have filed this first appeal against a
Sahoo, J.
part of the judgment and decree dated 8.7.1978 passed by Sri
Sankatha Prasad, the learned 6th Additional Subordinate Judge,
Motihari, East Champaran in partition Suit No. 113 of 1975/ 25 of
1977 decreeing in part the plaintiff's suit.
2. The original plaintiff Mahadeo Rai filed the aforesaid suit
claiming for declaration that the sale deed dated 2.12.1919 executed
Patna High Court FA No.765 of 1978 dt.01-05-2012 2
by Ram Lal Rai and Dayal Rai is forged and fabricated document
which is not binding on the plaintiff and for partition of the suit
property to the extent of 3 ½ Ana share in Schedule 2 lands and 8
Ana share in schedule 3 land.
3. The plaintiff's case in short is that the lands of Khata No.
47 of village Deopur Parsa originally belonged to Shankar Rai who is
the ancestor of the parties. Shankar Rai had two sons namely Sri
Narayan Rai and Mukun Rai. Sri Narayan Rai had three sons namely
Ramdhari Rai, Dhanushdhari Rai and Shyam Lal Rai. Ram Dhari had
two sons Makhan Rai and Nathuni Rai. Makhan Rai had four sons
and Nathuni Rai had three sons. The second son of Sri Narayan Rai
namely Bhiku and Sukhani died issueless. Hiraman is the third son
who had a son named Munshi. The line of Shyam Lal Rai extinct.
This branch of Sri Narayan Rai are the defendant 2nd set appellants.
The second son of Shankar Rai namely Mukun Rai had three sons
namely Deoraj Rai, Suba Rai and Sumiran Rai. Sumiran Rai died
issueless. Deoraj Rai had two sons Lakhu and Ram Lagan. Their sons
and grand sons are defendants 1st set. Suba Rai had three sons namely
Ram Lal, Debilal @ Dayal and Deni. Ram Lal and Deni died
issueless. Mahadeo Rai is the only son of Dayal Rai who is original
plaintiff. It may be mentioned here that plaintiff also died during the
pendency of this appeal and his legal representatives have already
Patna High Court FA No.765 of 1978 dt.01-05-2012 3
been substituted.
4. According to the plaintiffs both the sons of Shankar Rai
separated in mess prior to cadastral survey. They also partitioned the
movable properties but the lands were not partitioned by metes and
bounds. Both the branches have been cultivating separately according
to their convenience and the lands are joint. One Mushar Ahir was
Bhagina of the parties who was maintained and brought up by the
parties therefore, 2 ana share was given to him in the ancestral
property. The plaintiff and the defendant 1st set have got 7 Anna share
whereas the defendant 2nd set have got 7 Ana shares in the ancestral
properties i.e. Khata No. 47 mentioned in detail in Schedule 2 of the
plaint. According to the share of the parties in the cadastral survey
record of right (1902) the shares were specified i.e. 7 anas share in
the share of Sri Narain, 3.5 ana shares in the name of Deoraj and 3.5
share in the name of Suba whereas 2 ana share in the name of Mushar
in Khata No. 47. In the revisional survey record of right (1927) the
entire lands have been recorded in the share of defendant 2nd party to
the extent of 12 anas and the defendant 1st party to the extent of 4
anas whereas 2 anas have been recorded in the name of defendant 3 rd
party i.e. branch of Bhagina. Therefore, the entry in the revisonal
survey is wrong.
5. The further case is that at the time of revisonal survey Deni
Patna High Court FA No.765 of 1978 dt.01-05-2012 4
Rai had already died and Ram Lal Rai and father of plaintiff namely
Dayal Rai were minor and Deoraj Rai the uncle of Ram Lal and
Dayal was the Karta of the family and was looking after the affairs of
revisional survey. After separation from the branch of Shri Narayan
Rai the sons of Mukun Rai namely Deoraj and Suba Rai acquired the
land of Khata No. 26 of village Rajapur prior to revisional survey.
After revisional survey both became separate in mess but lands were
not partitioned by metes and bounds and they were cultivating the
same according to their convenience. The land of Khata No. 26 is
mentioned in Schedule 6 therefore, the plaintiffs claimed half share in
this land. In the year 1919 the father of the plaintiff namely Dayal Rai
and uncle namely Ram Lal were minors and Deoraj and Lakhu who
were major members in the family manufactured a sale deed on
2.12.1919purported to have been executed by Ram Lal and Dayal i.e. uncle and father of the plaintiff in favour of defendant No.1 namely Batai son Lakhu and grand son of Deoraj. This sale deed is forged fabricated and without consideration. On these facts the plaintiff claimed the relief of partition to the extent of 3.50 ana share in Schedule 2 property i.e. ancestral property. According to the plaintiff 8 ana share in Schedule 2 property was partitioned by sons of Mukun Rai.
6. The defendant 1st set regarding Schedule 3 property alleged Patna High Court FA No.765 of 1978 dt.01-05-2012 5 that there had already been partition between the branch of Deoraj and Suba Rai and accordingly, the sale deed has been executed by the father and uncle of the plaintiff in favour of defendant No.1. So far ancestral property is concerned, the defendant 1st set and defendant 3rd set supported the case of the plaintiff. Defendant 2nd set case is that there had already been partition between the parties and accordingly, they were separate in mess and business. Some properties were left which were partitioned after cadastral survey and accordingly, they have been mentioned in the revisional survey vide paragraph 9 of the written statement.
7. On the basis of the aforesaid pleadings the learned court below framed the followed issues.
"(i) Is the suit as framed maintainable ?
(ii) Has the plaintiff valid cause of action for the suit ?
(iii) Is the suit barred by law of limitation, waiver, estoppel and acquiescence ?
(iv) Whether Mukun was the son of Shanker ?
(v) Whether entries in the revisional survey Khatian with respect to the lands of Khata No. 47 were wrongly recorded ?
(vi) Whether partition by metes and bounds have Patna High Court FA No.765 of 1978 dt.01-05-2012 6 already been effected ?
(vii) Whether sale deed dated 2.12.1919 is forged, fabricated and without consideration and is not binding up on plaintiff ?
(viii) Whether plaintiff is entitled to a decree for partition and if so what would be the share of the plaintiff ?
(ix) To what relief or reliefs, if any, are the plaintiff entitle ?"
8. After trial the learned court below came to the conclusion that the sale deed dated 2.12.1919 is legal and genuine document and is for consideration. The learned court below also recorded that there had been no partition between the parties regarding Schedule 2 and Schedule 3 properties and held that the revisional survey entry is wrong and accordingly, decreed the suit for partition. So far the declaration regarding sale deed are concerned it is not granted.
9. The learned counsel Mr. Kumar Udai appearing on behalf of the appellants submitted that in fact the suit was filed by the plaintiffs for setting aside the sale deed dated 2.12.1919 therefore, the defendants appellants were duped the defendant 2nd set appellants and got the joint written statement filed in the suit although the interest of Patna High Court FA No.765 of 1978 dt.01-05-2012 7 the defendant appellant were adverse to that of the plaintiff and defendant 1st set. Subsequently, when the appellants came to know about the deception have filed written statement separately which was accepted by the court below. The appellants filed document also but it was not accepted by the court below. However, on the facts shown by the plaintiff himself it is apparent that there had already been partition between the parties. The plaintiff admitted that there had been separation in mess and residences between Sri Narayan Rai and Mukun Rai sons of Shankar Rai prior to cadastral survey. The defendant 1st set themselves claimed that there had already been partition between them and the plaintiff with respect to Schedule 3 properties and the sale deed dated 2.12.1919 has been executed by father and uncle of plaintiff in favour of defendant No.1 which is inter se transaction between the plaintiffs and the defendant 1st set which clearly prove the fact that there had already been partition between the plaintiff in the one hand and the defendant 1 st set in second hand. When there had been partition between the plaintiff and defendant 1st set who represent the branch of Mukun Rai, how can it be said that there had been no partition between the two sons of Shankar Rai. The plaintiff in the plaint categorically stated that after separation from the branch of Sri Narayan Rai Deoraj Rai became the Karta of branch of Mukun Rai. The learned counsel further submitted Patna High Court FA No.765 of 1978 dt.01-05-2012 8 that the defendants 1st set have not challenged the finding regarding non partition of Schedule 3 property and likewise the plaintiffs have neither filed cross-objection nor filed appeal regarding the setting aside of sale deed dated 2.12.1919. No doubt, there is presumption of jointness in the family but in the present case the plaintiff is 5 th generation from the founder of the family and likewise the defendant 2nd set appellant are also either 4th generation or 5th generation. Some of the defendants 1st set are either 5th generation or 6th generation. In such circumstances, here the presumption of jointness is nil. The plaintiff himself also categorically stated in the plaint that the branch of Deoraj Rai and Suba Rai separated themselves prior to revisional survey therefore, there cannot be any presumption of jointness in the present case but the court below wrongly placed the onus on the appellants to prove partition and recorded a finding that the appellants failed to prove partition between the parties. The learned counsel submitted that no doubt they pleaded in the written statement that Mukun is not the son of Shankar Rai but that issue was not pressed before the court below and the appellants admitted Mukun Rai to be the son of Shankar Rai. However, there is specific pleading that there had already been partition. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside.
Patna High Court FA No.765 of 1978 dt.01-05-2012 9
10. The learned counsel challenged only that part of the finding regarding Schedule 2 properties which is ancestral properties. He is not challenging the finding of the court below regarding Schedule 3 properties or the finding regarding the sale deed which concerns only the plaintiffs and defendants 1st set.
11. On the other hand, the learned senior counsel Mr. Majoomdar submitted that onus is on the appellants to prove that there had already been partition but no documents have been produced showing partition nor the date or month or year of partition has been stated by the appellants. No doubt, the plaintiffs have stated that there had been separation but the specific case is that the parties were cultivating the lands according to their convenience. Till there is partition by metes and bounds it cannot be said that the plaintiffs is not entitled for the share. It is admitted fact that Khata No. 47 in revisional survey corresponding to Khata No. 27 in cadastral survey is the ancestral land. Merely because the parties are separate in mess there can be no presumption that there had already been partition by metes and bounds and therefore, the learned court below has rightly decreed the plaintiff's suit. On these grounds, the learned counsel submitted that the first appeal is liable to be dismissed.
12. It appears that an application under Order 41 Rule 27 C.P.C. has been filed on behalf of the appellant on 19.4.2006 seeking Patna High Court FA No.765 of 1978 dt.01-05-2012 10 permission to adduce additional evidence in this case on the ground that the appellants were mislead by the plaintiff respondent and, therefore, they did not do pairvi in the case. On 24.1.2007 it was directed that this application shall be heard at the time of final hearing of the appeal. So far this application is concerned, the learned counsel for the appellant submitted that although the learned court below accepted the written statement subsequently filed by the appellants but did not allow the appellant to file documents. The learned counsel submitted the rent receipts from the year 1924 onwards till 1967 relating to Khata No. 47 which shows the possession of the appellant according to the earlier partition which are required to be considered as additional evidence. Some of the documents which are the applications of the year 1330 fasli filed by Dhanush Dhari, Deoraj Rai, Shyam Lal for recording separate Jamabandi according to the list of properties attached thereto in regard to the lands of Khata No. 47 and the sale deed executed by the plaintiff himself 22.1.1932 were not within the knowledge of the appellants. They came to know about these documents during the pendency of the suit. These documents show that there had already been partition with regard to ancestral land of Khata No. 47. The other sale deeds dated 2.2.1919 is executed by Ratai Rai in favour of a villager. The sale deed dated 2.11.1960 executed by plaintiff and his son with regard to the plot No. 249 of Patna High Court FA No.765 of 1978 dt.01-05-2012 11 Khata No. 47 which was allotted in their share. The learned counsel submitted that these are the documents sought to be adduced as additional evidence by the appellants and for the ends of justice the appellants may be allowed to adduce additional evidence.
13. On the contrary, the learned senior counsel Mr. Majoomdar vehemently opposed the prayer and submitted that at this stage after such a long period the plaintiff cannot be allowed to adduce additional evidence. The learned counsel relied upon a decision reported in AIR 1965 SC 1008 The Municipal Corporation of Greater Bombay v. Lala Pancham and others and submitted that for passing judgment in a particular manner the appellants cannot be allowed to adduce additional evidence and moreover when the appellants did not adduce any evidence in the court below, no question of adducing additional evidence arises.
14. In view of the above rival contentions of the parties, the point arises is as to whether there is unity of title and possession between the parties with regard to Schedule 2 properties i.e. the lands of Khata No. 47.
15. According to the appellants they are aggrieved by that part of the impugned judgment and decree of the court below whereby a decree for partition of this Schedule 2 property has been granted. We Patna High Court FA No.765 of 1978 dt.01-05-2012 12 have seen the genealogy table given by the plaintiff in the plaint. It is admitted fact that plaintiff is the 5th generation from the founder of the family Shankar Rai and likewise some of the appellants are 5th generation and some are 6th generation from the founder of the family. The plaintiff himself categorically admitted in the plaint that the sons of Sankar Rai namely Sri Narayan Rai and Mukun Rai separated in mess and residence and were cultivating the lands separately. The present suit has been filed in the year 1975 i.e. more than 7 decades after cadastral survey. The defendant 1st set also pleaded that there had been separation between the branch of Deoraj Rai and Suba Rai with respect to Schedule 3 properties. It may be mentioned here that the plaintiff categorically mentioned at paragraph 8 of the plaint that after separation from the defendants appellants branch Deoraj and Suba Rai purchased the Schedule 3 properties. At paragraph 10 it has been stated that there was separation between Sri Narayan Rai and Mukun Rai in mess prior to cadastral survey and they partitioned the movable property. They were cultivating the lands separately and according to the possession it was recorded in the survey record of right. At paragraph 13 it is specifically mentioned by the plaintiff that Deoraj Rai was the Karta of the branch of Mukun Rai at the time of survey. The plaintiff also pleaded that prior to revisional survey even Deoraj Rai separated from the branch Patna High Court FA No.765 of 1978 dt.01-05-2012 13 of Suba Rai i.e. the separation between the branch of Mukun Rai is also admitted. The sale deed dated 2.12.1919 Ext.C/2 has been held by the court below to be legal and genuine document. This sale deed is between the plaintiff and defendant 1st set respondent. This sale deed is interse transaction between the branch of Mukun Rai.
16. In the case of Ram Bahadur Nath Tiwary vs. Kedar Nath Tiwari and others AIR 1977 Patna 59 a division bench of this court has held that separate transaction of properties of a joint family may not by themselves establish separation but mutual transaction between two members of a family stands 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 parties of the family to separate and to enjoy their respective share in severalty. In the present case at our hand, this sale deed Ext.-C/2 indicates that at lease 56 years ago from the date of institution of the suit there was definite and unambiguous indication that the branch of even Mukun Rai was separate. According to the plaintiff there was separation prior to revisional survey between the plaintiff and defendant 1st set i.e. pre- survey partition and this fact is being supported by the registered sale deed executed by the uncle and father of the plaintiffs himself. Patna High Court FA No.765 of 1978 dt.01-05-2012 14 Therefore, this is interse transaction between the branch of Mukun which clearly proves about the separation between the branch of Deoraj and Suba Rai. When the branch of plaintiff and defendant 1 st set were separate how can it be said that the property of Shankar Rai i.e. Khata No. 47 remained joint.
17. No doubt, the learned counsel for the respondents submitted that the onus is of the defendant to prove previous partition but no date or month or year has been mentioned regarding partition of the ancestral property. So far this submission is concerned, it may be mentioned here that generally speaking the presumption is that every Hindu family is presumed to be joint unless there is proof of division. However, this presumption of unity is strongest in the case of father and son. The presumption is stronger in the case of brothers whereas the farther you go from the founder of the family the presumption became weaker and weaker because generally speaking brothers are for the most part remained undivided and second cousin are generally lives separated and likewise the third cousin are for the most part always presumed separated. Here from the genealogical table the parties are not either 2nd cousin or third cousin rather they are 3rd and 4th cousin therefore, there is no such presumption of jointness particularly, when it is specific case of the plaintiff that there had been separation between the two sons of Shankar Rai prior to Patna High Court FA No.765 of 1978 dt.01-05-2012 15 cadastral survey record of right.
18. From perusal of paragraph 17 of the impugned judgment it appears that the learned court below observed that the appellants have not given any particular year of partition in their written statement. If really there was partition by metes and bounds year, date and month ought to have been mentioned and secondly, the details regarding lands allotted to various sharers should have been mentioned in the written statement. The learned court below also observed that no paper of partition has been produced nor any document has been filed by the appellants. There is no oral evidence also. So the finding has been recorded by the court below that there had been no partition. It may be mentioned here that the learned court below had not at all considered the case of the plaintiff himself regarding separation between the two sons of Shankar Rai prior to cadastral survey. The court below also did not consider the case of the plaintiff himself and the separation of sons of Mukun Rai also. The learned court below also did not consider the interse transaction between the branch of Suba Rai i.e. the plaintiff's father and uncle with defendant No.1 i.e. the defendant 1st set representing the branch of Mukun Rai. Therefore, the learned court below failed to consider the cumulative effect of separate cultivation, separate messing, separate business, separate dealings of the property and separate and even mutual Patna High Court FA No.765 of 1978 dt.01-05-2012 16 interse transaction since long.
19. It appears that the defendants have also filed Ext.-C a zerpeshgi deed dated 15.11.1957 to show that the defendants 1st set were dealing the property covered by the sale deed Ext. C/2. Ext. A is the redemption note over Ext. B. The defendants also field sale deed dated 27.6.1956 executed by Ram Lagan in favour of Ratai by which half land of sale deed of 1919 was sold by Ram Lagan to son of Ratai. This is again an inter se transaction between the plaintiff and the defendant 1st set. Ext.C/1 is sale deed dated 14.12.1964 executed by Ratai in favour of Banaras Rai who has been examined as DW 5. This sale deed shows that Banaras Rai had purchased a portion of the land sold by the sale deed of the year 1919. At paragraph 35 of the judgment the court below also observed that Ext. A, B, C, C/1, D and D/3 along with other overwhelming evidence of DWs clearly prove the fact that the defendant 1st party has been dealing with the lands covered by the sale deed of 1919. Therefore, now it becomes admitted fact that since long the parties are separate in all respect. They are dealing the properties as exclusive owner thereof. The plaintiff admitted separation prior to cadastral survey. The plaintiff also admitted that Deoraj Rai became the Karta of Mukun Rai's branch.
20. In the case of Arjun Mahto vs. Monda Mahjtain AIR Patna High Court FA No.765 of 1978 dt.01-05-2012 17 1971 Patna 215 a division bench of this Court following the decision of Apex Court in the case of Bhgwan Dayal vs. Mostt. Raoti Devi AIR 1962 SC 287 held that the general principle is that every Hindu family is presumed to be joint but this presumption can be rebutted by direct evidence or course of conduct. When no contemporaneous documents are available the question whether the parties remained united or separate is to be decided on the facts of each case. The partition in such a case can be proved by the intention of the parties manifested by their subsequent conduct, by their sole and independent enjoyment of the properties. Separation in food and residence for a long time among the brothers of a Hindu family, independent transactions of property, separate possession and enjoyment of properties are by themselves, no doubt, not conclusive but the cumulative effect of such fact may show, that there had been a partition between the brothers during their life time.
21. In view of this division bench decision even the partition can be proved between the brothers on the basis of separate possession, independent transaction, enjoyments etc. In the present case at our hand what to speak of separation between the brothers we are considering the separation between either 4th generation or 5th generation from the original founder particularly, when the separation prior to cadastral survey had been admitted by the plaintiff. This Patna High Court FA No.765 of 1978 dt.01-05-2012 18 division bench case has been relied upon subsequently, by this Court in AIR 1991 Patna 1 Ganesh Sahu and another vs. Dwarika Sao and others, AIR 1991 Patna 276 Pata Sahu and another vs. Hiru Sahu and others and AIR 1991 Patna 95 Radhamoni Bhuiyanin and others vs. Dibakar Bhuiya and others. In this case i.e. Radhamoni Bhuiyanin (Supra) it has been held that it is well settled that although there is a presumption of jointness in a Hindu family but that presumption is stronger where the parties are full brother but such presumption gets weaker and weaker as time passes and parties in third and fourth generation are found to be in separate possession of the lands. It appears that in that case also the separation was admitted prior to the cadastral survey settlement therefore, it was held that in the instant case not only from before the cadastral survey settlement operation, the parties are in separate possession, separate mess, separate residence and separately cultivating possession of the lands in question, there had also separate dealings of the properties amongst the plaintiffs interse therefore, the conclusion of the trial court that there had been no partition by metes and bounds and as such plaintiffs were entitled to a decree for partition was illegal. Therefore, the appeal was allowed and the plaintiffs' suit was dismissed. In the present case at our hand, the learned court below has not at all considered the above well settled proposition of law Patna High Court FA No.765 of 1978 dt.01-05-2012 19 discussed above.
22. From perusal of the impugned judgment it appears that the learned court below considered the correctness or otherwise of the entry in the revisional survey record of right. It is well settled principles of law that the entry in survey record of right neither creates title nor extinguishes title. Even if it is found that the entry is wrong then also the plaintiff will not be entitled for partition if it is proved that there had already been partition. Here the prayer for partition of the plaintiff has been decreed without considering the settled position of law aforesaid.
23. In view of my above discussion, I find that the cumulative effect of separate mess, separate residence, separate cultivation, independent dealings of the properties and even interse transaction between the parties clearly proves that there had already been partition long ago between the parties. Only because the defendants failed to give the date or month or year the plaintiff's suit cannot be decreed. Therefore, I also find that the learned court below has approached the case in wrong angle and contrary to settled principles of law discussed above. Therefore, the findings of learned trial court are unsustainable in the eye of law with regard to the Khata No. 47 which is ancestral property i.e. the property of Shankar Rai. Patna High Court FA No.765 of 1978 dt.01-05-2012 20
24. In view of my above finding the application filed under Order 41 Rule 27 C.P.C. by the appellants is disposed of and it is found that the documents sought to be adduced as additional evidence are not necessary for just decision of the real controversy between the parties.
25. In the result, this first appeal is allowed and the impugned judgment and decree to the extent granting partition of Schedule-2 property i.e. lands of Khata No. 47 is set aside and the plaintiffs- respondents' suit regarding claim of partition of Schedule-2 property is hereby dismissed with costs of Rs.10,000/- to be paid by the plaintiffs-respondents to the appellants within one month, failing which the appellants shall be at liberty to realize the same from the plaintiffs-respondents through process of the Court.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 1st May, 2012 S.S./ A.F.R.