Jharkhand High Court
Dukhi Sahu And Ors. vs Ram Kumar Sahu And Ors. on 16 April, 2008
Equivalent citations: AIR 2008 JHARKHAND 100, 2008 (3) AIR JHAR R 50
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. This appeal is directed against the judgment of the lower appellate Court reversing the findings of the trial Court in a suit for partition.
2. The plaintiff Ram Kumar Sahu had filed the suit claiming 1/3rd share in partition of the suit properties described in Schedule-A and B to the plaint.
3. The trial Court dismissed the suit holding that there was no unity of title and possession since the suit properties stood partitioned in the year 1952.
4. The plaintiff thereafter preferred appeal before the District Judge which was heard and disposed of by the Additional Judicial Commissioner, Ranchi. The lower appellate Court reversed the findings of the trial Court by its impugned judgment holding that there was unity of title and possession and that the plaintiff was entitled to 1/3rd share in the suit properties.
5. This second appeal filed by the defendants/appellants was admitted for hearing on the following substantial questions of law.
1. Whether in the light of the documentary evidence available on record relating to transactions entered into by the various co-sharers, the appellate Court was Justified in law in holding that there was no complete partition amongst the members of the Joint family?
2. Whether on the pleadings and evidence on record, the learned lower appellate Court was Justified in law in reversing the findings of the learned trial Court?
6. Facts of the case in brief are as follows:
One Harku Tell was the common ancestor and was recorded tenant in the Revisional Survey Record of Rights. He died leaving behind three sons namely, Bigan Sahu, (who died sometime in 1955-56), Matan Sahu (who died sometime in (sic). The plaintiff claiming himself to be the only legal heir of Ramesh Sahu, had demanded 1/3rd share in the suit properties which originally belonged to the common ancestor Harku Teli. The defendants 1 to 3 are the legal heirs of Bigan Sahu, while defendants 4 to 5 are the legal heirs of Matan Sahu.
7. The defendants had contested the claim of the plaintiff for partition on the ground that there was amicable partition of the joint family properties in between the three sons of the common ancestor Harku Teli in the year 1952. Where-after, the three brothers had separated themselves both in mess and residence by taking their respective shares. Subsequent to the partition, defendants had entered into several mutual interse transactions in respect of the properties, which fell into their respective shares. These transactions include deeds of transfer of various portions of his proper ties executed by the plaintiffs father Ramesh Sahu not only in favour of the plaintiff but also in favour of the defendants.
During pendency of the proceeding, on being pointed out by the defendants, the plaintiff by way of amending his plaint, had included his three sisters, namely, Janki Devi, Bhukhll Devi and Ribia Devi and his two sisters-in-law namely, Most. Kairo Devi, widow of Late Kunja Sahu and Most. Sugo Devi, widow of late Bandhan Sahu also as parties defendant in the suit.
8. The trial Court framed several is sues including the following essential questions:
Issue No. 7 : Whether there is unity of title and possession in respect of the suit properties amongst the parties?
Issue No. 8 : Whether an amicable partition of the properties taken place in between the ancestors of the plaintiff and the defendants in the year 1952 and the parties are coming separate since then?
9. While considering the above two essential issues, the trial Court considered the evidences both oral and documentary adduced by the parties and arrived at its findings that there was no unity of title and possession, since partition had already taken place in the family long ago and the suit properties stood partitioned amongst the co-shares. The documents relied upon by the trial Court for drawing its inference and for recording its findings were
1. Registered Sale Deed dated 18.8.1968 (Ext.-A) executed by the plaintiffs father Ramesh Sahu, in favour of the defendants who constitute a branch of Bigan Sahu and Matan Sahu in respect of 3 katthas and 1 chattak of land in plot No. 750 described in the recitals in the sale-deed as vendor's own property.
2. Sale-deed dated 28.10.1961 (Ext.-C) executed by late Ramesh Sahu in favour of one Shamdong Bage in respect of the land in khata No. 123 and described in the recitals in the sale-deed as exclusive property of the vendor acquired by him in partition amongst the three branches of late Harku Tell
3. The sale-deed dated 18.8.1967 (Ext.-C/1) executed by the plaintiffs father Harku Teli in favour of the plaintiff in respect of the house situated on plot No. 730 comprising holding No. 588 and 584 and described in the recitals of the sale-deed as vendor's own property.
4. Demand Register of the Ranchi Municipality for the year 1962-63 (Ext.-D) indicating that jamabandi No, 584, 585 and 586 were separately prepared in the individual names of three sons of late Harku Teli.
5. Three separate awards in Land Acquisition Case No. 68 of 1962, 84 of 1962 and 69 of 1962, which were prepared separately in the individual names of the three sons of late Harku Teli for the lands acquired by the Government.
10. For drawing inference that the suit properties stood partitioned, the trial Court besides relying upon the documents of the defendants, had also relied upon the evidence of PW 2 Lalu Sahu who is brother-in-law of the plaintiff and who in his cross-examination has admitted that the parties are living separate in mess and residence. PW 3 Binod Sahu and PW 4 have admitted in their respective cross-examinations that the parties are living separate both in mess and residence since long. The trial Court has also relied upon the oral evidence of the two defendants Haro Devi, and Sugo Devi, both sisters-in-law of the plaintiff who have affirmed that the joint family properties were partitioned amongst the three sons of late Harku Teli. The evidence of co-villagers DWs 3, 5 and 6 was also relied upon by the trial Court, who have supported the case of the defendants on the point of partition.
11. The trial Court had also considered the oral evidences and documents, adduced by the plaintiff. These documents include;
Ext.-1 which is a certified copy of the Assessment Register of Ranchi Municipal Corporation in respect of holding Nos. 584 585 and 586 of the year 1960-61 separately recorded in the names of Bigan Sahu, Matan Sahu and Ramesh Sahu respectively for the portion of the cow-shed. This document was relied upon by the plaintiff to assert that the cow-shed being a portion of the joint family property, was held jointly by the ancestors of the plaintiff and the defendants. The trial Court held that while other properties were recorded separately in the individual names of the three sons of late Harku Teli and the cow-shed being a small portion of the joint family properties even if shown as jointly held, does not In itself prove that the major portion of the joint family properties continued to be held jointly by the three brothers and their respective successors.
Ext. 2--Rent receipts for years 1966-67 to 1995-96 issued in the name of late Harku Teli in respect of the lands situated at Samlong and Chutia Mauza. The plaintiff relied on this document to assert that since rent receipt continued to be issued in the name of late Harku Teli it showed that the properties were held jointly by the co-sharers. The trial Court negatived this assertion on the ground that mere grant of rent receipts in the names of the common ancestor on account of non-mutation of the name of the successors of the recorded tenant, does not conclusively establish jointness.
Ext.-3--Registered sale-deed dated 21.7.1954 jointly executed by Kabilash Devi widow of late Bijendra Sahu, Sanju Devi, wife of Matan Sahu and Most. Lubair, wife of late Ramesh Sahu in respect of 54 decimals of land situated in plot No. 405 under khata No. 179. The plaintiff relied on this document to claim that since the deed of transfer was executed Jointly by the ladies, it showed jointness. The trial Court negatived this assertion on the ground that the recitals in the documents categorically explains that the demised property was acquired jointly by the three ladies on the basis of the gift deed executed in their favour on 19.2.1951 and, therefore, the properties sold by them was not part of the joint family property.
Ext.-4--certified copy of the consolidated vouchers for payment of compensation for the land situated at Mauza Siram and Samlong acquired by the Railways. The plaintiff claimed that the award of compensation was prepared in the name of late Harku Teli and this denoted that the properties even in the year 1960 were held jointly by the successors of Harku Teli. The trial Court held that this document was also not supportive of the plaintiffs claim on the ground that though award was prepared in the name of Harku Teli, but payment of compensation was received separately by late Bigan Sahu and Ramesh Sahu and likewise, by Matan Sahu and Ramesh Sahu separately. This, according to the learned trial Court, had in fact indicated that the three sons of late Harku Teli had separated and had therefore received payments of compensation individually.
12. In the appeal preferred by the plaintiff against the judgment of the trial Court, the lower appellate Court reversed the judgment and decree of the trial Court holding that there was no amicable partition between the co-sharers in the year 1952.
13. Assailing the impugned judgment of the lower appellate Court, the appellants have raised the following grounds.
1. That the lower appellate Court has reversed the findings of the trial Court without considering the defendant's documents relied upon by the trial Court in its judgment and without making any discussion whatsoever either in respect of the documents or reasons assigned by the trial Court for relying upon the documents.
That the lower appellate Court has wrongly based its findings on the basis of the rent receipts (Ext-3 series) issued in the name of common ancestor Harku Teli, without considering the fact that admittedly, Harku Teli died soon after preparation of the Revisional Survey Record of Rights and without meeting the reasons assigned by the trial Court as to why the rent receipts cannot be accepted as conclusive proof of jointness.
3. That the lower appellate Court has committed gross error by awarding 1/3rd share in the properties to the plaintiff despite the admitted fact that the plaintiff was not the only son of late Ramesh Sahu. Besides the plaintiff, late Ramesh Sahu's three daughters and two daughters-in-law who were subsequently impleaded as defendants 6 to 10 are still alive and in this view of the matter, even if the case of the plaintiff is considered, he would at best be entitled to 1/18th.
14. Mr. P.K. Prasad, learned Counsel for the appellants would argue that the documents adduced by the defendants constitute strong evidence of previous partition which the trial Court had considered in detail and the lower appellate Court has committed a grave error of law by failing to consider and discuss any of the said documents at all. In support of his contention that the impugned judgment of the lower appellate Court is vitiated in law for the above reason, learned Counsel places reliance on the judgment of the Patna High Court in the case of Ram Bahadur Nath Tiwari v. Kedar Nath Tiwari and the case of Pata Sahu and Anr. v. Hiru Sahu and Ors. and also on the judgment of the Supreme Court in the cases of Ishwar Das Jain v. Sohan Lal and on the judgment of the Supreme Court in the case of Smt. Mehrunisha and Ors. v. Vishan Kumari and Ors. reported in AIR 1998 Supreme Court 427.
15. As against this, Mr. Manjul Prasad, learned Sr. Counsel appearing on behalf of the respondents/plaintiffs, would argue that there is no infirmity or impropriety in the findings and judgment recorded by the lower appellate Court and it was in fact the trial Court which had committed grave error in rejecting the evidences both oral and documentary adduced by the plaintiffs. In his attempt to demonstrate, learned Counsel refers to the document (Ext.-1) and would argue that this document confirms that the cow-shed was held jointly by the co-sharers which suggests that joint family properties were not partitioned. Learned counsel argues further that even though the defendants had claimed partition of the joint family properties in the year 1952, but they have not specified in their pleadings about the manner in which properties were partitioned nor specified the defined shares of the individual co-sharers. According to the learned Counsel, mere fact that the parties have been living separate both in mess and residence according to their convenience, doe not conclusively prove partition of the joint properties. Referring to the documents adduced by the defendants particularly Ext.-A which is a Registered Sale Deed executed by the plaintiffs father in favour of the defendants, learned Counsel argues that the recitals in the sale-deed would indicate that the area of the land measuring 3 katthas and 1 chhatak of land constitute 1/3rd of the land in plot No. 730 and suggesting thereby that the vendor had transferred, his 1/3rd share in the property and not any defined share.
16. Learned counsel for the appellants would counter this argument of the learned Counsel for the respondents by explaining that recitals in the sale-deeds categorically state that the properties transferred by late Ramesh Sahu were acquired by him in the partition of the joint family properties. Furthermore, the lands which stood transferred under the various sale-deeds, was specifically indicated by reference to its boundaries and it cannot therefore be said that the vendor had indicated that he had transferred his 1/3rd share in the joint family properties by virtue of the documents.
17. On perusal of the findings of the learned lower appellate Court, it appears that the lower appellate Court while considering the relevant issues has observed that though the defendants have pleaded amicable partition amongst the three sons of Late Harku Teli, but they have not discharged their onus to prove that the partition was made by meets and bounds amongst the three brothers, nor have the defendants proved the manner of partition nor specified the portion allotted to the shares of each of the brothers. On this ground, the appellate Court had rejected the defendant's claim of previous partition while observing that mere separateness in mess and residence according to convenience does not conclusively prove partition.
Placing reliance upon the Ext-1, which is certified copy of the Assessment Register of the Ranchi Municipal Corporation recorded in the names of two brothers in respect of their residence and the entries of the cow-shed as a common property, the appellate Court has observed that this entry in the municipal records in itself in dicates that the family properties were held jointly by the co-sharers.
Likewise, the appellate Court had also placed reliance on the rent receipts which were issued in the name of the common ancestor and held that since even after the death of the recorded tenant, the rent receipts continued to be issued in his name, it indicated that the properties continued to be held jointly by the co-sharers.
18. In paragraph-15 of its Judgment, the lower appellate Court has referred to the various documents adduced in evidences of the defendants/appellants, but in the entire judgment, none of these documents have been discussed by the lower appellate Court and neither is there any discussion made on the findings of the trial Court recorded after discussion of the individual documents and assigning reasons.
19. The documents adduced by the defendants do constitute material evidence in determining the issue as to whether there was previous partition of the joint family properties between the co-sharers or not? The trial Court has made elaborate discussion on each of these documents and had arrived at its findings in support of the defendant's claim that there was a previous partition of the properties. It was incumbent upon the lower appellate Court therefore to consider and discuss each of these documents to record its findings thereon. In order to reverse the findings of the trial Court, it was incombeat upon the lower-appellate Court to meet the reasonings assigned by the trial Court and to assign its own reason as to why it differs from the reasoning and the findings of the trial Court. It is apparent from the above that while reversing the findings of the trial Court, the lower appellate Court did not consider the material evidences particularly, the documents adduced in evidence by the defendants and this, therefore, raises a substantial question of law which calls for consideration in this appeal and for intervention in the findings and the Judgment recorded by the lower appellate Court. Since the lower appellate Court had failed to consider the vital documents adduced in evidence by the defendants, the findings of the lower appellate Court cannot be sustained on this ground alone. The first question is answered accordingly.
20. As regards the proof of partition, defendants have though claimed that joint family properties were partitioned in the year 1952 between the three sons of late Uarku Teli, but they have not claimed that any document or record of partition was prepared. It was contended by the defen dants that partition of the properties was made in presence of the co-villagers and oral evidence of three villagers have been adduced to confirm the same. The defendants have relied upon the sale-deeds, which were executed by late Kamesh Sahu. one of the three sons of common ancestor Harku Teli, One of these sale-deeds relates to transfer of certain properties by the plaintiffs father in favour of some of the defendants and yet another sale-deed in respect of transfer of the portion of the residential house in favour of the plaintiff himself. Recitals in each of the sale-deeds namely, Ext-A, C and C/1 categorically claim that the vendor had acquired the lands, demised under the transfer documents, by way of his share in partition of the joint family properties. It is apparent that these documents suggest mutual transactions between the co-sharers and, as rightly inferred by the trial Court, the same constitute definite proof of partition amongst the co-sharers. Coupled with this, the oral evidence of the plaintiffs witnesses that the co-sharers have been living separate both in mess and residence by holding separate portion of joint family properties exclusively since long assumes significance. Besides the documents adduced by the defendants in support of partition, the plaintiffs own sister and sister-in-law have offered their support to the claim of the defendants, who in their respective testimonies have admitted and acknowledged that there was a previous partition between the three sons of late Harku Tell in the year 1952. The lower appellate Court has totally ignored this part of the evidence on record and has not answered as to why the trial Court should not have relied upon the testimonies of the plaintiff's own sister and sister-in-law. The above evidence clearly indicates that the parties had intended to alter the title of the property and there was a definite and unambiguous indication by the members of the family to separate and to enjoy their respective shares in severalty.
21. Though separate transactions by the members of the joint family may not by themselves establishes separation, but mutual transaction between two members of the family stand on entirely different footing and they furnish strong evidence of separation.
22. It is apparent that on account of its failure to consider and discuss the evidences on record, the lower appellate Court was not justified in law in reversing the decision of the trial Court.
23. In the light of the above discussions, I find merit in this appeal. Accordingly, this appeal is allowed.
24. The impugned Judgment of the lower appellate Court passed by Additional Judicial Commissioner, Ranchi in Title Appeal No. 7 of 1997 is hereby set aside. The judgment and decree of the trial Court passed by the Sub-ordinate Judge-IV, Ranchi in Partition Suit No. 90 of 1990, is hereby affirmed.