Patna High Court
Janki Ram And Anr. vs Amir Chand Ram And Ors. on 22 November, 1983
Equivalent citations: AIR 1984 PATNA 191, (1984) PAT LJR 407
JUDGMENT Ashwini Kumar Sinha, J.
1. This second appeal by the plaintiffs is against a judgment of affirmance.
2. The plaintiff-appellants brought a suit for partition of their 1/4th share in the suit properties (details of which were given at the foot of the plaint). The suit properties related to (i) lands of khata No. 57 of village Maheshlundi and (ii) 2.66 acres of land appertaining to khata No. 15 of village Bclatanr. It is pertinent to note here that after filing of the written statement by the contesting defendants the plaintiffs amended the plaint and then included the Belatanr lands. Defendants Nos. 22 and 23 were also added after the filing of the written statement by the contesting defendants.
3. Shorn of other details, jn short, the plaintiffs claim unity of title and possession with regard to the lands of the aforesaid two khatas (as mentioned above). The plaintiffs' case was that Maheshlundi land ap-pertaining to khata No. 57 were recorded jointly as Belagan Raiyati in the name of four sons of Jhandu Ram, which constituted. according to the plaintiffs, a joint Hindu family governed by Hindu Mitakshara school of law. The plaintiffs' further case is that after tine survey the four brothers separated in their mess and used to cultivate the lands of khata No. 57 separately for the sake of convenience without ever having partitioned the lands by metes and bounds. The plaintiffs' case was that though the plaintiffs and defendants 1 to 18 have been cultivating the lands of khata No. 57 separately according to convenience only, yet defendants 16 to 18 and defendants 1 to 15 surreptitiously transferred some lands, o'ut of which a proceeding under Section 145 of the Code of Criminal Procedure was started.
4. So far as the lands of khata No. 15 of village Belatanr are concerned, it has already been stated above that the plaintiffs, when filed the suit initially, had not asked for partition of the lands of this khata and bad not asserted unity of title and possession with regard to the lands falling in this khata It was only when the written statement was filed on behalf of the contesting defendants that the plaintiffs sought for amendment of the plaint and included the lands falling under khata No. 15 as well. The amendment was allowed by order dated 25-4-1969 and they claimed their share to the extent of 1/4th in these lands an well. The contesting defendants had objected in their written statement that the lands of khata No. 15 of village Belatanr were also already partitioned amongst the co-sharets and it exclusively fell to the share of recorded tenants. Admittedly the lands falling in khata No. 15 of village Belatanr stood recorded in the names of the ancestors of the defendants only. Further it is also admitted that no khatian in respect of that land was prepared in the na.me of the ancestor of the plaintiff Sewak Ram. The plaintiff No. 1 examined himself as P. W. 3 and admitted that the plaintiffs were not cultivating any land of village Belatanr. It is further clear from the recital of the plaint itself, as well as from the written statement filed by defendant No. 23 Kamal Ram, that certain plots of this khata have been sold by defendant Kamal Ram and one Hemlal Baitha long before the institution of the suit. It seems surprising that although some of the plots of khata No. 15 were sold to outsiders more than 12 years before the institution of the suit yet the plaintiffs did not take any action in that regard in any form and it was only when the actual state of affairs relating to the lands of khata No. 15 came to light from the written statement of the contesting defendants, the plaintiffs came forward with a claim of their share to be declared in the lands of this khata as well.
5. The two Courts below have concurrently held that there was no unity of title and possession in favour of the plaintiffs and the plaintiffs were not entitled to any share in the suit lands. The Court below have also found that the lands of khata No. 57 of village Maheshlundi had been partitioned 50 years ago among the co-sharers as claimed by the defendants and the story propounded by the plaintiffs that the lands of khata No. 57 are still joint and the parties are cultivating the same separately only for convenience sake, was only a myth. It has further been found by the Courts below on a full consideration of the oral and documentary evidences on record that the lands of khata No. 15 of village Belatanr had also been partitioned about 50 years ago along with the lands of khata No. 57 of village Maheslundi amongst the co-sharers; more so, in view of the transactions made by the heirs of the recorded tenants with regard to the lands falling in Khata No. 15.
6. Learned counsel for. the appellants has advanced two submissions. Firstly, that the finding about unity of title and possession (against the plaintiffs) was vitiated on account of onus having been wrongly placed upon the plaintiffs and has placed reliance upon the case of Mt. Inder Kuer v. Mt. Pirthipal Kuer (AIR 1945 PC 128), Sital Singh v. Ram Prasad Singh (AIR 1957 Patna. 398) and Smt Savitri Devi v. Jiwan Chau-dhary (AIR 1960 Patna 548). The other submission advanced by the learned counsel for the appellants was that the affidavit sworn by the plaintiff-appellant (Ext. A dated 12-7-1963) in a proceeding undet Section 145 of the Code of Criminal Procedure between the parties could not be used against the plaintiffs (which has been used, according to the learned counsel for the appellants, as a conclusive piece of evidence against the plaintiffs) and hence the finding about previous partition, as contended by the contesting de-fendants, was vitiated.
7. On the aforesaid two submissions the learned counsel for the appellants submitted that the judgments and decree under appeal are not in accordance with law and needed to be interfered with.
8. It is well settled that in a Hindu family governed by Mitakshara School of Hindu Law, there is normal presumption of joint-ness; joint in food, worship and estate but the strength of presumption necessarily varies in each case. Tihe presumption of jointness is stronger in a case of brothers than in a case of cousins and farther one goes from the founder of the family, the presumption becomes weaker and weaker. The evidence in each case has to be reviewed in the light of such a well established principle of Hindu law.
9. It is also well settled that one who alleges that lihe members of the joint Hindu family had separated must prove that there was a separation at some material time, as the normal presumption is that the family continues joint. Separate acquisition by separate coparceners of a joint Mitakshara family are no evidence of separation and are consistent with the normal presumption of jointness.
10. It is also well settled that separation can be proved by the conduct of the family and the attending circumstances.
11. In the light of the aforesaid well settled principles of law, this Court is only to see whether the concurrent findings of the Courts below to the effect that there was no unity of title and possession in favour of the plaintiffs has been arrived at against the aforesaid principles of law,
12. So far as the first - submission advanced by the learned counsel for the appellants is concerned, that is, onus having been wrongly placed upon the plaintiffs, it is not true that the Court of appeal below has thrown the onus upon the plaintiffs. The Court of appeal below was fully conscious of the legal position that there was normal presumption of jointness but the Court of appeal below has taken into consideration the conduct/admission of the plaintiffs themselves and came to the conclusion that the plaintiffs' case stood self condemned. The Courts below on a fuller and detailed discussion of the oral and documentary evidences have concurrently found that there was no unity of title and possession in favour of the plaintiffs. The plaintiffs have been contradicted by some of their own witnesses who have said that the plaintiffs have been cultivating some lands jointly and some separately, which was not a case pleaded in the plaint. The plaintiff Janki himself deposed that Maheshlundi lands were being cultivated separately except plots NOS. 100 and 147. This is also against the plaintiffs' own pleading. The plaintiffs have admitted 1be transfer of plot No. 100 by the contesting defendants to their respective wives as also the facts of the transferees having applied for mutation. Though the plaintiffs. filed an objection in the mutation case, the final order was passed in favour of the transferees of the contesting defendants, and thereafter the plaintiffs did not pursue the matter. This aspect of the case speaks a volume against the plaintiffs' case. The Courts below have also taken into consideration the construction of houses separately by the co-sharers on some of the lands in Maheshlundi and they were coming in exclusive possession thereof. This conduct of the parties allowing each other to construct houses without specific allotment of lands also speaks a" volume against the plaintiffs' case.
13. As already stated above the plaintiff Janki had sworn an affidavit (Ext. A in the instant suit) in 1963 in a proceeding under Section 145 of the Criminal P. C. started between Chandra Shekar Ram and others as the first party and Mewa Lal and others as the second party. In this affidavit the plaintiff Janki had stated that tihe family lands had been partitioned between Tbanu and his brothers and that their heirs came in possession of their respective shares allotted to them by the said partition. This was a clear admission by the plaintiff himself of an earlier partition of the lands falling in the aforesaid two khatas. The consideration of this affidavit by the Courts below was one of the considerations, along with others in coming to a finding that there was no unity of title and possession in favour of the plaintiffs. Thus I hold that the normal presumption of jointness in a Hindu family governed by Mitakshara School of Hindu Law was weakened in the back-ground of the facts of this case by the conduct of the parties themselves and the Courts below, having accepted that there was a normal presumption of jointness, tested the normal presumption by the conduct of the parties and it is only there after that the finding about the absence of unity of title and possession was arrived at. 1, therefore, hold that there is no substance in the first submission advanced by the learned counsel for the appellants.
14. The cases of Mt. Inder Kuer v. Mt. Pirthipal Kuer (AIR 1945 PC 128) (Supra), Sital Singh v. Ram Prasad Singh (AIR 1957 Patna 398) (Supra) and the case of Smt. Savitri Devi v. Jiwan Chaudhary (AIR 1960 Patna 548) (Supra) relied upon by the learned counsel for the appellants in support of his first submission are clearly distinguishable on facts of each case. In the case of Smt. Savitri Devi v. Jiwan Chaudhary (Supra) the facts were absolutely different and hence this does not support the contention advanced by the learned counsel for the appellants.
15. Then remains the second submissions of the learned counsel for the appellants to be considered that is, whether the statements made by the plaintiff Janki in a duly sworn affidavit filed in a proceeding under Section 145 of the Criminal P. C. in the year 1963 could be used as a piece of evidence against the plaintiffs in the instant suit. It is well settled that an admission on a question of fact made by a party in course of a proceeding can be regarded as a good piece ol evidence relied upon, which the contesting party may contend that the claim made in the subsequent proceeding was unjustified The Court is entitled to consider the admission solemnly made by a party concerning the subject matter in dispute (words have been underlined by me for emphasis) in course of a proceeding in adjudicating upon the truth or otherwise of a claim made by the parties in a subsequent proceeding concerning the subject matter in dispute. The admission made by a party may be used as evidence against him in the other suit if it concerns the subject matter in dispute, However, such an admission cannot be regarded as conclusive and the party can show that it was not (true). Reference be made to the case of Basant Singh v. Janki Singh (AIR 1967 SC 341).
16. In view of the aforesaid settled principles of law, as just referred to above, with regard to the admission made by a party it is to be seen whether the Courts below have used the statements made in the affidavit (Ext. A) duly sworn by the plaintiff himself in the proceeding under Section 145 of the Criminal P. C. I am satisfied on a careful perusal of the judgments of the Courts below that the statements made in the affidavit (Ext. A) have not been taken as a conclusive piece of evidence against the plaintiffs; whereas, the Courts below have only taken as a piece of evidence along with many others in order to come to the finding that there was no unity of title and possession in favour of the plaintiffs. As already stated above it was open to plaintiffs to show that the statement made by plaintiff Janki earlier in the affidavit filed in a proceeding under Section 145 was not true and, in fact, the plaintiffs adduced oral and documentary evidences in order to satisfy the Courts below that the statements made in the affidavit were not true but the two Courts below have found that the plaintiffs failed to show that the statements made in the affidavit were not true. I am satisfied that the Courts below have taken the statements made in the affidavit (Ext. A) not as a conclusive piece of evidence against the plaintiffs but only as one of the evidences and the Courts below have considered the statements made in the affidavit along with the oral and documentary evidences on record. In this view of the matter this submission as well advanced by the learned counsel for the appellants has no force.
17. There is one more aspect of the case that both the Courts below have concurrently found, on a fuller and detailed discussions of the oral and documentary evidences as well, that there was no unity of title and possession in favour of the plaintiffs. This concurrent finding of fact cannot be interfered with in a second appeal when the Courts below have taken all the material evidences on record into consideration.
18. In the result, this appeal fails and is dismissed but, in the circumstances of the case, there will be no order as to costs.