Patna High Court
Smt. Ramsurat Devi vs Smt. Satraji Kuer And Ors. on 20 August, 1974
Equivalent citations: AIR 1975 PATNA 168, 1975 BLJR 48 ILR (1975) 54 PAT 17, ILR (1975) 54 PAT 17
JUDGMENT B.D. Singh, J.
1. This appeal was instituted by one of the plaintiffs, Most. Maharaji Kuar against a portion of the judgment and decree of the learned Subordinate Judge disallowing a part of the claim of the plaintiffs in Partition Suit No. 96 of 1962, instituted by her along with her daughter's son Satyadeo Choubey, respondent No. 13. Junardan Pandcy, who was defendant No. 2 in the suit (respondent No. 2 before us) bad also filed cross-objection against those findings of the learned Subordinate Judge, wherein he had decreed some of the claims of the plaintiffs. This judgment will, therefore, govern both the appeal and the cross-objection. During the pendency of the appeal the sole appellant died. Her daughter Ramsurat Devi was substituted in her place as the appellant, while her other heirs were placed in the category of the respondents by order dated 20-5-1971. Likewise, Janardan Pandey, respondent No. 2, who had filed cross-objection, had also died during the pendency of this appeal and his heirs Anrawati Devi and another were substituted by order dated 2-9-1968.
2. Maharaji Kuar and her daughter's son, Satyadeo Choubey, as plaintiffs 1 and 2 respectively had instituted the said title suit on 18-8-1962 for partition of the land measuring 10 bighas 2 kathas 5 dhurs of land comprised under various plots under khatas, namely, 209, 1000, 1001, 1002, 1009, 1010 and 1070 situate in village Ratanamala, P. S. Majhowa district Champaran, detailed under Schedule I of the plaint, as also for partition of land measuring 3 bighas 14 kathas 8 dhurs comprised under various plots under Khata Nos. 76, 362, 363, 364 and 365, situate in the same village, fully described under Schedule II of the plaint.
3. In the plaint, the plaintiffs had impleaded respondents 1 to 4 as defendants first party and respondents 5 to 12 as defendants second party, The plaintiffs had claimed 1/4th share in the land covered by Schedule I and half share in the lands covered by Schedule II. Their case in brief was that one Mahesh Dutt was the common ancestor of the plaintiffs and the defendants first party. Mahesh Dutt had four sons, namely, Bishundeo Pandey, Kishundeo Pandey, Rambadan Pandcy and Brahmdeo Pandcy. Kishundeo Pandcy and Brahmadeo Pandey died issueless in state of jointness before the rcvisional survey. Rambadan Pandey also died before the revisional survey leaving behind his son Sarjug Pandey, who also died leaving behind two sons, Sakti Pandcy and Ghinawan Pandey (defendant No. 3). Sakti also died before institution of the suit. Bishundeo Pandey, remaining son of Mahesh Dutt, also died after the revisional survey, leaving behind two sons, Kewal Pandey and Awadh Pandey. Kewal Pandey died on 8-8-1953 leaving behind his widow Maharaji Kuar, plaintiff No. 1, and a daughter Ramsurat Devi, who had a son Satyadeo Pandey. Plaintiff No. 2. Awadh Pandey who was initially impleaded as defendant No. 1, also died leaving behind one son Janardan Pandey (defendant No. 2) and one daughter, Satraji Kuar, defendant No. 1. Satraji Kuar had one son Indrajit Shukul, defendant No. 4. The relationship of the plaintiffs and the defendants' first party would be clear from the following genealogical table.
MAHESH DUTTA | _______________________________|_____________________________________ | | | | Bishundeo Kishundeo Rambadan Brahmadeo Pandey Pandey Pandey Pandey | | | Sarjug Pandey | | | ________________|__________________ | | | | Sakti Pandey Ghinawan Pandey __|__________________________ (Deftd.3) | | Kowal Pandey Awadh Pandey (died on 8-8-53) | Most Maharaji Kaur | (Plff.1) | | | | | Daughter ________|___________________ | | | | Janardan Pandey Satraji Kaur Satyadeo (Defdt.2) (Defdt.1) (Plff.2) | Indrajit Sukul (Defdt.4)
4. According to the plaintiffs, ancestral lands under Schedule I of Bishundeo Pandey were not partitioned by metes and bounds although the defendants 1 to 4 separately possessed certain lands for the sake of convenience. Bishundeo had also acquired certain lands out of his personal fund, described in Schedule '2' and those lands, according to the plaintiffs, were still joint between the plaintiffs and defendants 1 and 2. In Schedule I the plaintiffs had, therefore, claimed 1/4th share whereas in Schedule 2 lands they had claimed half share. It was also alleged that plaintiff No. 1, out of her share, had gifted part of it in favour of her daughter's son, namely, Satyadeo, plaintiff No. 2. It was further pleaded that the defendants first party had sold certain lands out of the suit lands to defendants 5 to 12 (respondents 5 to 12), who were impleaded as defendants second party in the plaint. The plaintiffs demanded partition from the defendants first party as the joint family property was being mismanaged but they refused to do so, which led to the institution of the suit. Awadh. Pandey, who was initially impleaded as defendant No. 1, died during the pendency of the suit. Therefore, in the trial court he was substituted by his daughter, Satraji Kuar, who was also numbered as defendant No. 1. Out of the defendants second party, defendants 5 to 10 are descendants of Narayan Dutt, full brother of Mahesh Dutta, who was, as mentioned earlier, the ancestor of the plaintiffs and defendants first party. Defendants 11 and 12, however, are complete strangers to the family.
5. On behalf of defendants 1 and 2 two separate written statements were filed by each of them disputing the claims of the plaintiffs, whereas defendant 4 filed one separate written statement. Defendants 5 to 10 together filed one separate written statement. Thereafter, defendants 8 to 10 filed an additional written statement. No written statement was filed on behalf of defendant No. 3. Defendant No. 2 in his written statement pleaded inter alia that the suit as framed was not maintainable; the plaintiffs had no cause of action; Bishundeo and Sarjug had separated before the survey, but it was true that the lands were not partitioned by metes and bounds. Kewal, husband of plaintiff No. 1 had separated from his father, Bishundeo. After separation Bishundeo had remained joint with Awadh along with defendant No. 2. Bishundeo died in a state of jointness about 20 years ago. Kishundeo died in the year 1946, and thereafter Bishundeo had inherited his property. Bishundeo Bad 10 annas 8 pies share in the suit land contained under Schedule I, whereas the branch of Sarjug got 5 annas 4 pies share in the suit land contained in Schedule I. It was also pleaded that the plaintiffs had not included certain ijmali lands in the suit land. Therefore, the suit was bad for partial partition. It was also stated that 12 bighas of lands, described in Schedule 2 of the written statement, which were in possession of the plaintiffs and the defendants, were purchased by the Cooperative Bank and defendant No. 2 had purchased 3 bighas 13 kathas 7 dhurs in the name of his wife Buna Kuar on 16-7-37. Therefore, the plaintiffs had no concern with those lands. The remaining lands purchased by the Co-operative Bank were purchased by Sarjug (father of defendant No. 3). Further, defendant No. 2 admitted in his written statement that the lands given in Schedule II of the plaint were the self-acquired property of Bishundeo. Therefore, the plaintiffs have got 8 annas share in those lands. Defendant No. 2 further challenged the assertion made in the plaint that the plaintiff No. 1 had executed a deed of gift in favour of plaintiff No. 2.
6. Satraji Kuar, defendant No. 1 in her written statement, pleaded that the statement made in paragraph 1 of the plaint, was not correct. She asserted that after the death of Mahesh Dutta, all his sons separated. Brahmadeo & Rambadan died before survey, whereas Kishundeo died in the year 1946. Kewal also separated from his faiher, 3ishundeo, during his lifetime. Bishundeo died in state of jointness with Awadh and Janardan. After the death of Kishundeo, Bishuntleo succeeded to his share. She also admitted that Bishundeo had acquired the suit lands mentioned in Sch. TT of the plaint. It :nay be noticed that her case was more or less similar to that of defendant No. 2.
7. Defendant No. 4 in his written statement, inter alia, pleaded that originally defendant No. 1 Awadh, had executed a deed of gift dated 24-4-1962 in favour of defendant No. 4 and after execution of the said deed, he came in possession of some of the suit lands, as mentioned in that deed.
8. Defendants 5 to 10 in their written statement pleaded that by virtue of the purchase from the Co-operative Bank they had acquired right and title in some of the suit properties, which were in their possession since after the purchase from the Bank. They stated that the lands were purchased by the Co-operative Bank in the year 1934 and the sale was confirmed in favour of the Bank. Thereafter defendants 5 to 10 purchased 1 bigha, 17 kathas on 17-1-1939 and 171/2 dhurs on 27-1-1939 from the said Bank. Sakti and Sarjug had also purchased lands from the said Bank. Thereafter defendants 5 to 10 had purchased some lands also from Sakti and Sarjug through various sale deeds, detailed in their written statement. Therefore, they contended that those lands could not be made subject-matter of partition. They further asserted that the plaintiffs had no concern with the lands covered under khata Nos. 209, 1009 and 1010, as they were their own ancestral lands. Later, as mentioned earlier, defendants 8 to 10 filed additional written statement, inter alia, stating therein that certain mistakes were committed due to the scribe in the earlier written statement filed on their behalf. In paragraph 3 thereof they stated that plot No. 5886 containing house was their ancestral property. They have 1/3rd share in the premises; defendants 5 to 7 have 1/3rd share and the remaining 1/3rd belongs to other co-sharers.
9. On the pleadings of the parties, as many as five issues were framed by the trial court; out of which, issue No. 4 is important for consideration in this appeal. The issues are as follows :--
1. Whether the suit, as framed, is maintainable?
2. Whether the plaintiffs- have got cause of action for the suit?
3. Whether the suit is bad for partial partition?
4. Whether the plaintiffs are entitled to get decree for partition? If so, to what lands and for what share?
5. To what other reliefs, if any, are the plaintiffs entitled?
10. It may be recalled that now there is no dispute regarding the claim of the plaintiffs with respect to the lands mentioned in Schedule II of the plaint. The court below has already decreed the full claim of the plaintiffs for the lands covered under this Schedule. No cross-objection has been filed against this finding of the trial court. The trial court also decreed the plaintiff's claim regarding some of the lands covered by Schedule I of the plaint, that is, khata Nos. 1002 and 1070. It may be noted that by mistake in the judgment khata No. 1002 is not mentioned, but by reference to the plot numbers mentioned in the plaint, as well as in the judgment it is clear that the trial court by mistake had omitted to mention khata No. 1002 there. In the decree, however, it is clearly mentioned that the decree was passed in favour of the plaintiffs regarding the lands covered by khata No. 1002 as well as khata No. 1070. The cross-objection filed by respondent No. 2 is confined to the finding of the trial relating to khata No. 1002 only. Therefore, the finding of the court below regarding the lands covered by khata No. 1070 is not under challenge before us. Hence, in this appeal we are concerned with the findings of the court below only with regard to the claim of the plaintiffs for the lands covered by khata Nos. 1000, 1001, 1002, 1009, 1010 and 209 of the Schedule I of the plaint.
11. It will be convenient to dispose of the contention of the parties regarding the findings of the court below for the land under khata Nos. 1000, 1001 and 1002. It is the admitted case of the parties that the lands under these khatas belonged to the joint family. On account of the joint family dues against defendant No. 3, amounting to Rupees 50/- payable to Pakri Parsa Ratanmala Cooperative Society, the lands measuring 10 bighas 18 kathas and 7 dhurs were auction-sold on 5-9-1934 in Misc. Case No. 38/34-35. According to Mr. N. P. Agrawala, learned counsel for the appellant, the court below had erred in disallowing the claim of the plaintiffs regarding the land under khata Nos. 1000, 1001 and 1002. On the basis of Ext. 7, which is a receipt showing payment of Rs. 42/- on 28-3-1936 granted by the said Co-operative Society to Kewal, he submitted that from the receipt it is clear that out of the dues of Rs. 50/- Rs. 42/- was already paid to the Society, being the share of the dues against the branch of Bishundeo. Since the sale was already confirmed in favour of the Bank, there was no option left to the joint family than to get the lands resold from the Bank in the names of various members of the joint family. In the name of the wife of Janardan Pandey (defendant No. 2) 3 bighas 13 kathas and 7 dhurs was resold by the Bank under Ext, A-2 dated 15-7-1937 for a consideration of Rs. 100/-. The consideration money was paid out of the joint family fund. Certain lands were also resold to defendant No. 3 but in that case also consideration was paid out of the joint family fund and after resale, it continued to be the joint family property, as would be evident from Ext. 3, which is a sale deed dated 4-10-1950, executed by Kewal, husband of plaintiff No. 1, and Ghinawan, defendant No. 3, in favour of Raghubir Hazra, for a sum of Rs. 1,900/-, with respect of the lands measuring 1 bigna 2 dhurs bearing plot Nos. 5699 and 5772 under khata No. 1000, khewat No. 132 Tauzi No. 951 of Bettiah Raj. There is a recital in the sale deed that there was a mortgage dated 20-6-1917 in favour of Rikhnarain Prasad and others and the mortgaged due against the members of the family was Rs. 990/-. Out of the consideration money the said sum of Rs. 990/- was paid to the mortgagors.
12. On this state of evidence learned counsel submitted that if really the lands exclusively belonged to defendant No. 3 after resale from the Bank, there was no occasion for executing the sale deed by Kewal, husband of plaintiff No. 1. He further emphasised that defendant No. 3 has not filed any written statement. Therefore, obviously, he has not denied the claim of the plaintiffs. In my opinion, in absence of the specific pleadings in this regard in the plaint to the effect that the sale deeds executed by the said Bank in favour of the wife of defendant No. 2, and others at the instance of the Karta of the joint family and considerations of those sale deeds were paid out of the joint family fund, it would be difficult to accept the contention of the learned counsel for the appellant. The only statement in this regard made in the plaint is to be found in paragraphs 2 and 3, which read as:
^^3- ;g ds vUnj ,jkftvkr eqQlys en ua- 1 vjth ukfy'k dq eqnb;k 1 dk fgLlk 4 pkj vkuk gS A eqnkygqe 1 oks 2 dk fgLlk 4 pkj vkuk gS oks ewnkyg ua- 3 dk fgLlk 8 vkB vkuk gS A oks vanj ,jkftvkr tks en 2 vjth ukfy'k eqnbvku 1 dk fgLlk vkB vkuk gS A oks eqnkyg ua- 1 oks 2 dk fgLlk ofd;s vkB vkuk gS A vjkftvkr oks ;g ua- 1 oks 2 vjth ukfy'k cVokjk ryc gS gukst bteky gS A 4- ;g ds bteky j[kkus esa Qjhdsu dks uqd'kkuh gS pUn ejrcs eqnb;ku ua- 1 rk 2 eqnkygqe Q- vks- ua- 1 rk 3 ls cVokjk ds fy;s ryc rdktk fd;k ysfdu os yksx er otg ugha gksrs gSa A** Learned counsel for the appellant, however, drew our attention to the evidence of Bishundeo Pandey (P. W. 8), who has stated in paragraph 3 of his deposition that the land of Ratanmala was purchased by the Co-operative Bank in auction and thereafter Kewal had purchased it out of the joint family fund. He also referred to the evidence of Shankar Chaubey (P. W. 9) who stated in paragraph 3 that the land of Ratanmala was purchased by the Co-operative Bank in auction. At that time the land belonged to the joint family, and that it was purchased out of the joint family fund, from the Bank. Kewal and Ghinawan had sold these lands to Raghubir Hasra (Dusadh).
13. In my opinion, these evidence are not sufficient to absolve the responsibility of the plaintiffs from making the specific pleadings in this regard in the plaint. Reference may be made to Siddik Mohommed Shah v. Mt. Saran, AIR 1930 PC 57 (1) where it was observed that no amount of evidence could be looked into upon the plea which was never put forward. In Hem Chand v. Pearay Lal, (AIR 1942 PC 64) it was held that the procedure in allowing the parties to adduce evidence on the point, which arose on the evidence led by the parties, but were not raised in the pleadings or issues was irregular, and should not be allowed without amending the pleading and raising necessary issues. The only issue on the point was issue No. 4, which, in my opinion, is not sufficient to include the present contention of the learned counsel for the appellant that for various sale deeds in favour of the defendants first party or their wife executed by the Bank, consideration was paid out of the joint family fund, and that those lands retained the character of jointness even after they were auction-sold to the Bank and even after the sale was confirmed to the Bank. Importance of pleadings was also reiterated in Trojan & Co. v. Nagappa Chettiar, (AIR 1953 SC 235) where their Lordships observed that the decision of the case could not be based on grounds outside pleadings of the parties and it was the case pleaded that had to be found. Without an amendment of the plaint court was not entitled to grant relief not asked for. In Bhagat Singh v. Jaswant Singh, (AIR 1966 SC 1861) the observation made in AIR 1930 PC 57 (1) (supra) was approved and their Lordships held that where a claim was never made in the pleading no amount of evidence could be looked into. Reference may also be made to Kusum Chand v. Kanhaiyalal, (AIR 1974 Raj 73).
14. Besides, there is no evidence on the record to establish as to under what capacity Kewal had executed Ext. 3. Mr. Agrawala contended that defendant No. 3 had not filed his written statement. Therefore, virtually he admitted the claim of the plaintiffs. In my opinion, his contention is not tenable, as non-filing of the written statement by the defendant No. 3 would not amount to admission of all the facts pleaded in the plaint by the plaintiffs. In Siai Sinha v. Shivadhari Sinha. (AIR 1972 Pat 81) Untwalia, I. (now C. J.), while dealing with the provisions contained under Order 8, Rule 5 held that if a defendant did not file his written statement, it could not be said that he admitted all the facts pleaded by the plaintiffs (vide also J. B. Ross & Co. v. C. R. Seriven, ILR 43 Cal 1001 = (AIR 1917 Cal 269 (2)).
15. Mr. Thakur Prasad appearing on behalf of the substituted heirs of defendant -- respondent No. 2 submitted that there were good reasons why defendant No. 3 had not filed the written statement and not contested the suit. Defendant No. 3 after having purchased the land from the Bank had already sold to various persons and therefore no interest was left for him. In this connection our attention was drawn to paragraph 12 of the judgment of the court below where it dealt with the lands covered under khata Nos. 1000 and 1001, as also 1002. By mistake the court below had not mentioned khata No. 1002 although in the decree it was so mentioned, which I have already observed. In the said paragraph, it was stated that defendants 5 to 10 had produced the sale deeds showing that they purchased lands of those Khatas directly from the Co-operative Bank or from Sarjug or Sakti Pandey. The sale deeds, Exts. A-3/1, A-3/3 and A-3/4 were executed by Sbakti Pandey. They also produced sale deeds. F.xts. A-3/2 and A-4/1 showing that Ghinawan sold some lands out of plot Nos. 5777, 5752, 5751, 5750 and other plots out of those khatas. Another sale deed was also filed showing that defendant No. 3 sold 11 kathas of land out of plot No. 5756 to those defendants in 1959. Defendants 8 to 10 produced sale deeds (Exts. A-4 series) to show that defendant No. 3 sold lands of those khatas. In my opinion, this explains why defendant No. 3 ceased to have any interest. Mr. Thakur Prasad also referred to the other parts of the judgment of the court below in paragraphs 12 and 13. In paragraph 12 it held that those purchasers, namely, defendants 5 to 10, were not the persons, who were co-sharers of the plaintiffs. The plaintiffs had not challenged those sale deeds in their plaint. Therefore, it was no longer open to them to say that the lands purchased by them from the Bank belonged to Kewal Pandey. He submitted that the Court below also rightly held in paragraph 13 that the plaintiffs had not been able to prove that they had got any interest in the lands appertaining to khata Nos. 1000 & 1001. He submitted that here also khata No. 1002 by mistake has been omitted. As discussed above, the plaintiffs were not entitled to any share in the lands covered by khata No. 1002 either, as the lands covered by that khata were also sold to the Bank and thereafter some of the defendants first party had purchased the same from the Bank. As mentioned earlier the cross-objection is confined to the finding to this khata only.
16. Mr. Thakur Prasad submitted that by mistake the Court below held that the lands in khata No. 1002 were not purchased and resold by the Bank. Therefore, in paragraphs 15 and 16 of the judgment the trial court held that the plaintiffs were also entitled to share in Khata No. 1002. In that circumstance, he urged that his cross-examination ought to be allowed and the judgment and the decree should be modified to that extent. He also submitted that the plaintiffs' case as against defendant No. 2 regarding the lands purchased by him from the Co-operative Bank in the name of his wife Buna Kuar was not maintainable in view of the fact that Buna Kuar was not impleaded as one of the defendants and the sale deed in her name was not being challenged. In other words, he was raising objection as to non-joinder of parties. In my opinion, this submission of Mr. Prasad is not acceptable. Reference may be made to Lakhi Prasad v. Murlidhar, (AIR 1973 Pat 250) where Anwar Ahmad, J. observed that objection as to non-joinder of parties not having been raised at the earlier opportunity before settlement of issues was deemingly waived.
17. Mr. Agrawala laid stress upon the rent receipts, Exts. 2 series. In my opinion, from those rent receipts it is difficult to hold that the lands were joint. Reference may be made to Jag Prasad Rai v. Mt. Singari, (AIR 1925 PC 93 (2)) where it was held that entries in khewats and other similar village papers showing that the shares of co-owners had been specific, afforded by themselves no proof that the owners were members of a joint Mitakshra family or had separated. Payments jointly of Government revenue, taxes, Income-tax and such like payments do not by themselves indicate that the parties making such payments were joint or separate.
18. Mr. Agrawala further urged that in view of the admission made by the defendants about jointness the case of the plaintiffs ought to have been accepted by the court below. He drew our attention to paragraph 10 of the written statement filed on behalf of defendant No. 2, the relevant portion of which reads as:
^^uht vUnj tk;nkn equntsZ en ua-
1 vthZ ukfyl eu eqnkyg dk fgLlk 5 vkuk 4 ikbZ pkgs oks fgLlk eqnkyg ua- 3] 5 vkuk 4 ikbZ gS A oks blh eqrkfcd Qjhdsu dk btekyu dCtk pyk vkrk gS A** He laid stress upon the statement made therein that joint possession was continuing. In my opinion, the plaintiffs cannot take advantage of the said statement made in the written statement as it has got to be read along with the statements made in Schedule 2 thereof as also paragraph 8 wherein it is clearly stated that the lands under khata Nos. 1000, 1001 and 1002 were coming in possession of defendant No. 2 due to the purchase from the Co-operative Bank. Learned counsel also drew our attention to the statements made in paragraphs 10 and 12 of the written statement filed on behalf of defendants 5 to 10 and contended that they did not state therein whether the lands purchased from the Co-operative Bank were joint or separate nor have they said that they were their self-acquired property. They had simply said that the plaintiffs had no interest therein. In my opinion, this submission of learned counsel is also not tenable in view of the clear assertion made by them in the schedule of the written statement wherein it is clearly stated that the lands purchased from the Co-operative Bank were their self-acquired property. Reference may be made to Shiv Saran Rai v. Sukhdeo Rai, (AIR 1937 Pat 418) where Agarwala and Madan, JJ. observed that it was not open to the court of fact to dissect an admission in parts arising out of the pleadings but the court ought to have taken the whole of it into consideration. Similar view was taken in Indermal Tekaji Mahajan v. Ramprasad Gopilal, (AIR 1970 Madh Pra 40) where Pandey and Sen, JJ. [while dealing with the provisions contained under Order 12, Rule 1 of the Code of Civil Procedure, observed that an admission made in a written statement might be taken as a whole or not at all.
19. Apart from the documentary evidence I find the learned court below has also dealt with the oral evidence adduced on behalf of the plaintiffs on this point in paragraph 11 of its judgment. P. W. 1 is a mere formal witness. P. W. 2 was a witness on the point of possession with respect to Maheshra land. P. W. 3, however, was a witness on the point of possession regarding the lands of Ratanmala under khata Nos. 1000, 1001 and 1002, which I am considering at present. But from his evidence it cannot be gathered as to which plot he was referring. In cross-examination he stated that he was finding the land in possession of defendant No. 4. Therefore, the learned court below rightly, held that his evidence was valueless and it did not lend support to the case of the plaintiffs. It also rightly held that although P. W. 4 was a witness regarding some of the Sands of Ratanmala and that plaintiff No. 2 was in possession of those lands, it was difficult to ascertain the plot numbers from his evidence. Similar is the evidence of P. Ws. 5 and 6. P. W. 7 is plaintiff No. 2. He had simply stated that plaintiff No. I had gifted some of the lands in his favour. Therefore, his evidence is innocuous. I have already referred to the evidence of P. Ws. 8 and 9 earlier. The learned court below has observed that P. W. 8 was not expected to have any connection with the plaintiffs' family at the time of purchase of the land from the Co-operative Bank, whereas P. W. 9 is the father of plaintiff No. 2 and, therefore, the court below rightly held that he was highly interested.
20. As against oral evidence examined on behalf of the plaintiffs, referred to above, I now proceed to deal with the evidence of Hanuman Rai (D. W. 12), who was examined on behalf of defendant No. 2. He stated in paragraph 2 of his evidence that Janardan (defendant No. 2) had purchased from the Co-operative Bank and it was in his possession. He further stated that at the time of purchase Awadh and Janardan were joint. Janardan (defendant No. 2) himself examined as D. W. 14, and stated in paragraph 2 of his deposition that about 12 bighas of land were purchased from the Co-operative Bank out of those 3 bighas. Defendant No. 2 had purchased in the name of his wife. He further asserted that he had purchased 3 bighas of land from his own personal fund. D. W. 3 had also purchased some land from the Co-operative Bank. Other co-sharers were not in possession of those lands. The suggestion made to the witness in paragraph 8 that the purchase from the Co-operative Bank out of the joint family fund was emphatically denied by the witness.
21. Reading the evidence of these witnesses, as discussed earlier, I find that there is ample corroboration from the documentary evidence. Therefore, in my opinion, the court below has rightly rejected the claim of the plaintiffs for partition of the lands covered under khata Nos. 1000 and 1001. I find no reason to interfere with the said finding. I have also mentioned earlier that by mistake the lands under khata 1002 were not mentioned. Really the plaintiffs can have no claim for partition of the lands covered under khata 1002. Therefore, the cross-objection filed on behalf of respondent No. 2 has also got to be allowed and the judgment and the decree have to be modified to that extent.
22. Now I propose to deal with the claim of the plaintiffs for the lands covered by khata Nos. 209, 1009 and 1010. Learned counsel for the appellant urged that there was no reason for the court below in not accepting the claim of the plaintiffs for partition of the lands under those khatas. In my opinion, this submission of the learned counsel is not correct. Reference may be made to paragraph 14 of the judgment where the learned Subordinate Judge has dealt with this matter. He held therein that the plaintiffs had not adduced any evidence to show that the ancestors of the plaintiffs and the defendants first party had any interest in those lands. Learned counsel for the appellant, however, contended that the court below had committed an error of record in holding that no sale deeds were produced to establish that Sarjug Pandey had some lands out of plot No. 5886 under khata No. 209. Sale deed dated 7-8-1941 (Ext. A-3) was executed by Sarjug Pandey in favour of Rameshwar Dutt (defendant No. 6) for the land measuring 31/4 dhurs out of plot No. 5886; sale deed, Et. A-3 (1) dated 25-5-1946 was executed for the land measuring 12 dhurs in the said plot by Shakti Pandey son of Sarjug Pandey for self and guardian of the then minor defendant No. 3 in favour of Rameshwar Dutt and the third sale deed, Ext. A-3 (2), dated 17-3-1952 for the land measuring 6 dhurs out of the said plot was executed by Ghinawan Pandey in favour of Rameshwar Dutt. Learned counsel for the appellant pointed out that in the plaint, after excluding those lands, but including other lands, held by defendants 5 to 10, the plaintiffs have claimed partition only of 1 katha 16 dhurs out of plot No. 209. In this connection he referred to us to Schedule I of the plaint wherein it is stated as a remark that plot No. 5886 had total area of 5 kathas 8 dhurs out of which 3 kathas 12 dhurs was partitioned among Nonh Pandey and defendants 5 to 10. In the Khatian total area of plot No. 5886 was wrongly mentioned as 3 kathas 4 dhurs. In my opinion, it is true that the learned Subordinate Judge has not taken into consideration those sale deeds, which were on the record, and he has committed an error of record but on that ground the contention of learned counsel cannot be accepted. Even in the above remark, as mentioned above it is not clear that 3 kathas 12 dhurs of land, mentioned to be in possession of Nonb Pandey and defendants 5 to 10, also included 1 khata 11/4 dhurs of land, covered by the three sale deeds, referred to above. Besides, simply by making the above entry against plot No. 5886 in Schedule I of the plaint, it is difficult to come to conclusion that the entry in the khatian, which mentioned only 3 kathas 4 dhurs as total area thereof, was incorrect. It is well established that there is presumption of correctness of such entry in the khatian, which required cogent evidence to rebut it. In the pleadings no averment has been made regarding those sale deeds, which were executed in favour of defendant No. 6. While in the written statement of defendants 5 to 10 regarding plot No. 209 it is mentioned that defendants 5 to 10 acquired title and possession over 1 katha 11/4 dhurs of land out of plot No. 5886 by means of sale deed. Further it is made clear in the schedule to the written statement that out of plot 5886, 2 kathas 3 dhurs of land was coming in possession of the ancestors of the defendants 5 to 10 as recorded in the khatian. According to the defendants, the entire land under plot No. 5886 belonged to them and no land was left in plot No. 5886 to be claimed by the plaintiffs.
23. Reference may be made to the evidence of Bujhawan Missir (D. W. 16), examined on behalf of defendants 5 to 7, who stated in paragraph 2 of his deposition that there was no house of Bishundeo or Kewal on plot No. 5886 nor they had any interest in the said plot. Bindhyachal Pandey (D. W. 17), who is defendant No. 5, also stated in his evidence that they had their old house on plot No. 5886. Kewal had no share therein. In the khatian the name of Sarjug did not find place. Sarjug bad one katha of land in that plot which he had sold by 3 sale deeds. Learned counsel for the appellant drew our attention to the khatian entry, Ext. B-4, where in the column meant for the name of tenant Tapeshwar Pandey, Keshav Pandey and Nandan Pandey are mentioned. He referred to Samilat Khewat number where under khewat 129 the name of Tapeshwar Pandey finds place whereas in khewat No. 130 Ramsagar Pandey is mentioned and in Khewat No. 132 the name of Bishundeo Pendey father of Kewal Pandey was mentioned. In my opinion, in the absence of the pleadings and the evidence adduced on behalf of the plaintiffs the contention of the learned counsel cannot be accepted simply on the ground of those entries in the Khewats (vide observations referred to above in AIR 1925 PC 93 (2), (supra)) in this connection I have already referred to the evidence of D. Ws. 16 and 17. Lal Babu Pandey (D. W. 18), defendant No. 8, stated in his evidence that the land under plot No. 5886 was his ancestral land. Therefore, in my opinion, the learned Judge has rightly disallowed the claim of the plaintiffs regarding the land in plot No. 5886 under khata No. 209,
24. As regards the plaintiffs' claim over the lands appertaining to khata Nos. 1009 and 1010, learned counsel for the appellant drew our attention to the entry made in the khatian (Ext. 4) where Bishundeo Pandey and others are mentioned against plot No. 5577 appertaining to khata No. 1009; whereas plot Nos. 5721, 5722, 5734 and 5738 are mentioned under khata No. 1010. Against plot No. 5577 the names of Tapeshwar Pandey, Sheonandan Pandey, Rajkishore Pand.ey, and Bishundeo Pandey are mentioned. In Ext. 4 there is no mention of any name against plot No. 5721; but the name of Gulab Chamar is mentioned against plot No. 5722 and those of Bishundeo Pandey and others are mentioned against plot No. 5734. As against plot No. 5738 the name of Bishundeo Pandey is mentioned. All these plots appertain to khata No. 1010. In my opinion, these entries also do not establish the claim of the plaintiffs in absence of cogent evidence adduced on behalf of the plaintiffs. It is not known under what capacity the name of Bishundeo Pandey found mentioned against some of the plots, referred to above, in the khatian. Learned counsel for the appellant reiterated that in the written statement defendants 5 to 10 have not denied the claim of the plaintiffs. I have already referred to the written statement of defendants 5 to 10 earlier. In Schedule 2 thereof defendants 5 to 10 have clearly stated that those lands of khata Nos. 1009 and 1010 were in their possession and they belonged to them. The- plaintiffs had got no right to claim partition of the said lands. I have already discussed on the subject and held that the pleading has got to be read as a whole. I find no reason to interfere with the conclusion arrived at by the learned Subordinate Judge, as held by him in paragraph 14 of the judgment, that the plaintiffs had no interest in the lands covered under khata Nos. 209, 1009 and 1010.
25. In conclusion, after examining the case of the plaintiff -- appellant from different aspects I do not find any merit in the appeal, which is, accordingly, dismissed. The cross-objection, filed on behalf of defendant-respondent No. 2, is allowed and the judgment and the decree of the court below are modified to the extent that the plaintiffs had no right to claim partition of the lands covered by khata No. 1002. The parties will bear their own costs, so far as this Court is concerned.
S.K. Choudhuri, J.
26. I agree.