Patna High Court
Sri Ramanand Kumar & Ors vs Most.Shyama Devi & Ors on 3 July, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.282 of 1996
Against the Judgment and Decree dated 14.06.1996
passed by Sri Md. Atiullah Ansari Sub Judge IX,
Patna in title partition suit No.497 of 1983 / 117 of
1995.
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Smt. Bijay Laxmi Kumar & Ors
...................Plaintiffs-Appellant/s
Versus
Most.Shyama Devi & Ors
...............defendants-
Respondent/s
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Appearance :
For the Appellant/s : Mr. Shashi Shekhar Dwivedi, Sr. Advocate
Mr. R. K. Shukla, Advocate
Mr. Purushotam Jha, Advocate
Mr. Satish Chandra Jha No.3, Advocate
For respondent No.12 & 13 : Mr. Durganand Jha, Advocate
For respondent No.20 to 23 : Mr. J. P. Shukla, Sr. Advocate
Mr. Kalikant Jha, Advocate
Manisha Jha, Advocate
For respondent No.25 : Mr. Shivnandan Roy, Sr. Advocate
Mr. Satyendra Narayan Singh
Mr. S. P. Singh, Advocate
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Dated : 3rdday of July, 2012
PRESENT
CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
CAV J U D G M E N T
2 Patna High Court FA No.282 of 1996 dt.03-07-2012
2 / 27
Mungeshwar
Sahoo, J.1. The plaintiffs have filed this First Appeal against the Judgment and Decree dated 14.6.1996 (decree signed on 5.7.1996) by Sri Md. Atitullah Ansari, learned Sub Judge IX Patna in title partition suit No.497 of 1983 / 117 of 1995 dismissing the plaintiff's suit for partition.
2. The plaintiff-appellants filed the aforesaid title partition suit No.497 of 1983 / 117 of 1995 claiming 11/54th share in the suit property described in Schedule II and further prayed for grant of permission to purchase the right, title and interest of defendant sixth party in the suit property described in Schedule II which has been purchased by defendant sixth party from defendant No.5 under sale deed No.7083 dated 19.8.1983 on the price fixed by the Court and the defendant sixth party may be directed to execute sale deed on receipt of the consideration money. The plaintiff also prayed for permission to purchase right, title and interest of defendant No.16 and his wife Smt. Rekha Devi which they purchased from defendant Ist party by sale deed dated 14.12.83, 31.5.84 and also to purchase the share of defendant No.8 sold to defendant No.15 through registered sale deed dated 26.7.1985. After granting the said relief, the plaintiff share to the extent of 11/54 th may be partitioned.
3. The plaintiff claimed the aforesaid relief on the facts which may be stated in brief which are relevant and necessary for the purpose of decision of this First Appeal. The common ancestor Rai Bahadur Pandit Jayanand Kumar being the karta purchased 1 biggha 6 katha 11 dhur in plot No.1173, 1174 and 1175 under Khata No.5 Tauzi No.5090 in Mauza Dujra P.S. Kotwali Distt. Patna by registered sale deed dated 5.4.1938 out of joint family fund. He died in jointness with his 3 sons and grand sons in the year 1940. There was a private partition of the entire property between the sons and grand 3 Patna High Court FA No.282 of 1996 dt.03-07-2012 3 / 27 sons of Rai Bahadur Pandit Jayanand Kumar in the year 1952. In the said partition, the three sons of Pandit Rai Bahadur Jayanand Kumar, i.e., Satyanand Kumar, Nityanand Kumar and Krityanand Kumar were allotted 1/3rd share along with their sons. The entire land purchased under sale deed dated 5.4.1938 in plot No.1173, 1174 and 1175 described in Schedule I fell in the share of Satyanand Kumar. Satyanand Kumar and his sons constructed double storied house on the said land in the eastern side and still major portion in the western side is used as Sahan. The house constructed forms one block which has been described in Schedule II.
4. The further case of the plaintiff is that Pandit Satyanand Kumar died on 11.3.1978 in state of jointness and the plaintiffs and defendant Ist party to fourth party came in joint possession of the joint family properties including the suit property. Thereafter, the 4 sons of Satyanand Kumar, namely, Gayanand Kumar, Krishnanand Kumar, the plaintiff Ramanand Kumar and Durgnand Kumar separated in mess and business since 4 years prior to institution of the suit and started cultivating the lands according to convenience but there had been no partition between them. The share of defendant fourth party and fifth party are in charge and under management of the plaintiff and defendant-Ist-party to defendant third party. Therefore, the entire joint family property need not be partitioned.
5. The Further case of the plaintiff is that there are 4 flats in double storied building which form one block. Two flats are in ground floor and two flats are on the first floor. The electric meters of all the flats are in the room of the plaintiff. Plaintiff No.1 is residing in the suit house with his family members whereas the defendant-Ist party to fifth party are not living in Patna. The plaintiff No.1 being the Advocate of the Patna High Court is in charge of the entire land and house in suit. He inducted tenants on monthly 4 Patna High Court FA No.282 of 1996 dt.03-07-2012 4 / 27 rent and is realizing rents from them. The defendant Ist party to fourth party are residing in the ancestral village home. It is stated that the defendant Ist party second party third party and fourth party have got 11/60th share whereas defendant fifth party have got 5/60th. The defendant No.5 has sold claiming 1/4th share in the suit property to defendant sixth party by registered sale deed dated 19.8.83 which has been described in schedule III of the plaint. The defendant first party had only 11/60th share in the suit property but they have sold 1/4th share to Baijnath Chaudhary defendant No.16 and his wife Smt. Rekha Devi through 4 sale deeds dated 14.12.83, 31.5.84. The defendant No.8 had also got 11/60 th share but he has sold 1 katha 8 dhur of land to Smt. Sumitra, the defendant No.15. The defendant No.5 in the sale deed has made wrong and false recital to the effect that there had been complete partition of the house and land in suit along with other properties in the year 1979 between the 4 brothers. Likewise he has made wrong assertion that the suit property was allotted in his share in the said partition. The defendant No.5 had stealthily and fraudulently got his name mutated separately in the municipality without knowledge of the plaintiff. The defendant sixth party is stranger to the family of the plaintiff and is a lady of different castes. She never came in possession on the basis of sale deed. The alleged memorandum of partition mentioned in the sale deed is fabricated and inadmissible in the evidence and not binding on the plaintiff. Since the defendant No.5 has sold his right, title and interest, it is not possible to continue in joint with the defendants. The defendant sixth party is not interested in other property of the family of the plaintiff, hence, the plaintiff are not seeking partition of other property of the family.
5 Patna High Court FA No.282 of 1996 dt.03-07-2012 5 / 27
6. After service of notice, the defendant No.10 to 13, i.e., daughters of Satyanand Kumar appeared and filed joint written statement supporting the plaintiff's case. The minor defendants also filed written statement through GAL.
7. Separate written statements have been filed by the defendant No.15, 16 and 17. Written statement of defendant No.15 is separate and written statement of defendant No.16 and 17 the husband and wife is joint. Baidthnath Chaudhary and Smt. Rekha Devi who are the purchasers. Their main defence is that the plaintiff have already partitioned the entire property including the suit house and other immovable properties left behind by father late Pandit Satyanand Kumar, after his death on 11.3.1978. This partition took place between the plaintiff and his 3 brothers, i.e., defendant No.1, 5 and 8 and memo of partition was executed on 3.3.1979 in presence of four witnesses. The property allotted in the share of defendant No.1, 5 and 8 came in their exclusive possession and they were separately mutated in municipal corporation registrar and 4 separate holdings were created in favour of 4 sons of Pandit Satyanand Kumar. They were paying municipal taxes separately. In the said partition, the entire movable and immovable including the suit house was divided between the 4 sons wherein each of them were allotted 1/4th share. The defendants Nos.1, 5 and 8 had transferred their entire share in the suit property total 3/4th share. The defendant No.15 purchased the flat and vacant land measuring 2000 square feet on 19.8.1983 prior to filing of the suit. The sale deed was executed by defendant No.5 whereby his holding NO.413A/85 was sold by him. Likewise defendant No.8 sold his holding NO.413(C)/85A to the defendant No.15 by the registered deed of sale. The vendor put the transferee in possession. Since there had already been partition, there is no question of unity of title 6 Patna High Court FA No.282 of 1996 dt.03-07-2012 6 / 27 and possession. According to these contesting defendants, the plaintiff have only stated that 4 years ago, there was separation in mess and cultivation but in fact it was not only separation but real partition by metes and bounds.
8. The further case of the contesting defendants is that the daughters of Pandit Satyanand Kumar are not claiming partition. The plaintiffs are living in flat No.413B/85A which was allotted to them in the partition and the remaining 3 flats, namely, 413/85A, 413A/85A, 413C/85A were allotted to the co-sharer which they sold to defendant No.15, 16 and 17 and the purchasers are coming in possession of those flats. The defendant No.15 is in possession of flat of holding No.413A/85A first floor with 200 square feet vacant land over the ground floor flat of defendant No.5 since purchases from late Krishnanad Kumar. The defendant Baidthnath's daughter is in possession of the flat purchased from defendant No.1 and the defendant No.16 had purchased the flat of defendant No.8. These defendants are bonafide purchaser from the owners of the property which was allotted to them in the partition and, therefore, provision of Section 4 of Partition Act is not attracted. The other allegations made by the plaintiff have been denied by these defendants.
9. On the basis of the aforesaid pleadings of the parties, the following issues were framed by the Court below :
(i) Is the suit as framed, maintainable?
(ii) Have the plaintiffs got any valid cause of action for the suit?
(iii) Is the suit barred by the principles of waiver, estoppel and
acquiescence?
(iv) Is the suit barred under Section 34 of the Specific Relief Act?
(v) Is the suit barred under Section 23 of the Hindu Succession Act?
(vi) Is the plea of Section 4 of the Partition Act for permission to
purchase from defendants No.15, 16 and 17 maintainable? 7 Patna High Court FA No.282 of 1996 dt.03-07-2012 7 / 27
(vii) Is the suit bad for mis-joinder and non-joinder of necessary party to the suit?
(viii) Is the suit bad for the defect of partial partition?
(ix) Have the plaintiffs and the defendants got unity of title and unity of possession in respect of the suit property?
(x) Are the plaintiffs entitled to a decree for partition as sought for?
(xi) To what other relief or reliefs the plaintiffs are entitled to ?
10. After trial, the learned trial Court recorded a finding at paragraph 19 of the Judgment to the effect that the suit premises is joint and the plaintiffs have unity of title and unity of possession. While deciding issue No.6, the trial Court recorded a finding that since the property is joint, Section 4 of Partition Act is applicable vide paragraph 20. The trial Court also while deciding issue No.3 found that the sisters of the plaintiff not never filed any suit and only in the present suit, they came before the Court and merely written statement have been filed supporting the plaintiff's case. Admittedly, the plaintiff and the brothers of the plaintiff have dealt with separately landed property without joining their sister and mother and no objection was ever raised by them. Therefore, they have waived their right. While considering issue No.8, the trial Court came to the conclusion that as has been admitted by the plaintiff that the entire joint property has not been included in the suit, this partition suit suffers from defects of partial partition. On the defect of partial partition, the trial Court dismissed the partition suit. Against this, the present First Appeal has been filed by the plaintiff.
11. The learned senior counsel, Mr. Shashi Shekhar Dwivedi appearing on behalf of the plaintiff-appellant submitted that only on the ground of partial partition, the plaintiff's suit for partition could not have been dismissed by the trial Court after recording finding that the plaintiffs have got unity of title and interest over the suit house. The learned counsel further submitted that the finding recorded by the Court below to the effect that the 8 Patna High Court FA No.282 of 1996 dt.03-07-2012 8 / 27 suit house is joint and there is unity of title and possession cannot be challenged by the defendants as the cross objection filed by the respondent No.25 is not according to law and in fact it is not valid cross objection. In such view of the matter when there is no cross objection in the eye of law, the finding recorded by the trial Court on this question cannot be interfered with by appellate Court. According to the learned counsel for challenging a finding the respondent must file cross objection under Order 41 Rule 22 of the Code of Civil Procedure according to law and if no cross objection is filed the finding on an issue cannot be examined by the appellate Court. In support of his submission, the learned counsel relied upon various decisions which shall be considered later on.
12. The learned counsel, Mr. Dwivedi further submitted that the defence of the respondent that there had already been partition completely in the year 1979 is not acceptable as admittedly no share was allotted to the sisters and mothers, i.e., daughters of Pandit Satyanand Kumar and his widow.
13. The learned counsel further submitted that on 12.07.1996 after hearing the appellant on injunction application, this Court issued notice in injunction matter to the defendant No.15 who is respondent No.25 who appeared on 19.8.1996 and filed cross objection on 11.9.96. The appeal was admitted on 10.1.2000 and then notice were issued. Therefore, according to Order 41 Rule 22, the cross objection filed by the respondent No.25 is pre- mature which was filed prior to the date of hearing fixed by the Hon'ble Court after admission. In such circumstances, the cross objection is not at all a cross objection in the eye of law. The purchasers cannot claim specific property and a co-sharer has no right to transfer a specific property. Moreover, the purchasers have only a right to file suit for partition and no 9 Patna High Court FA No.282 of 1996 dt.03-07-2012 9 / 27 right to claim joint possession. In such view of the matter, it cannot be said that purchasers are in possession of the property. Since the plaintiffs- appellant have only prayed for relief under Section 4 of the Partition Act, they are not required to pay advelorum court fee because they are not praying for setting aside the sale deed nor they are praying for recovery of possession.
14. On the other hand, the learned senior counsel, Mr. Shivnandan Rai appearing on behalf of the contesting defendant No.15-respodnent No.25 submitted that the finding of the learned Court below regarding joint property and unity of title and possession is a finding on an issue, therefore, the respondent can challenge the said finding without filing cross objection. Even if the cross objection filed by the respondent No.25 is held not maintainable then also the respondent No.25 can challenge the finding because after amendment under Order 41 Rule 22, cross objection is necessary to be filed against a decree against which independent appeal could have been filed. According to the learned counsel, since the entire plaintiff's suit has been dismissed, there is no decree against the defendant. In such circumstances, there is no question of filing independent appeal against the finding on an issue. If independent appeal cannot be filed because of the fact that the finding is not a decree, no cross objection is required to be filed. So far dismissals of suit on the ground of partial partition is concerned, the learned counsel submitted that the learned Court below has rightly dismissed the suit because admittedly the plaintiff have not included the other property of the family. The learned counsel next submitted that the learned Court below has recorded the finding regarding unity of title and possession without considering any documentary evidences and, therefore, it can be said that the finding of the trial Court on this point is 10 Patna High Court FA No.282 of 1996 dt.03-07-2012 10 / 27 perverse. Regarding non-allotment of share in the alleged partition to the widow of Pandit Satyanand Kumar and his daughters, the learned counsel submitted that since there had already been partition as far back as in 1979, there is no question of reopening and allotting share to the daughters arises. According to the learned counsel, none of the daughters of Pandit Satyanand Kumar ever claimed their share nor were they examined in the Court below. They only supported the case of the plaintiff.
15. The learned counsel further submitted that out of 4 brothers, i.e., 4 sons of Pandit Satyanand Kuamr, the defendant No.1, 5 and 8 i.e., 3 sons are admitting that there had already been partition of all the properties including the suit house. In view of the above admission of the 3 brothers who have got an equal interest in the suit property, their admission will be admissible against the plaintiff. The plaintiffs are disputing the signature of Ramanand Kumar on the memorandum of partition but they never disputed the signatures of 3 brothers of Ramanand Kumar, i.e., the defendant No.1, 5 and 8 who are the vendors of the contesting respondents.
16. The learned counsel next submitted that the cross objection filed by the defendant No.10 to 13 i.e., daughters of Satyanand Kumar, no doubt, filed written statement claiming their share in the suit property but their prayer was negatived by the trial Court. They filed cross objection prior to the admission of this First Appeal and the date of hearing fixed by this Court, therefore, their cross objection is not at all a cross objection in the eye of law as has been argued by the learned counsel for the appellant regarding the cross objection filed by the respondent No.25. According to the learned counsel, the defendant No.10 to 13 filed the cross objection in the year 1996. In such circumstances when the cross objection is not legal and valid, the same cannot be entertained and therefore, the decree passed against them 11 Patna High Court FA No.282 of 1996 dt.03-07-2012 11 / 27 cannot be challenged by them in this First Appeal. Moreover, this partition suit itself is not maintainable so no question of granting them share arises.
17. The learned senior counsel, Mr. J.P. Shukla appearing on behalf of these defendant No.10 to 13 respondents submitted that they are daughters of Pandit Satyanand Kumar, therefore, they have got share in the property which they should be allotted. The trial Court wrongly rejected their claim. So far cross objection is concerned, the learned counsel submitted that even if it is held that their cross objection is not according to law then also this Court cannot shut the eyes as admittedly they are the daughters of Pandit Satyanand Kumar. On these grounds, the learned counsel submitted that the impugned Judgment and Decree be modified and the defendant No.10 to 13 be allotted their share.
18. In view of the rival contentions of the parties, the points arises for consideration in this appeal are as follows :
(i) Whether the plaintiffs partition suit could have been dismissed by the trial Court only on the ground of partial partition, i.e., the other joint family properties have not been included in the suit?
(ii) Whether the finding recorded by the trial Court regarding unity of title and possession i.e., the suit property is joint can be allowed to be challenged by the respondent No.25 without their being any valid and legal cross objection before this Court and if so whether there had already been partition between the parties or there is unity of title and possession between the parties with regard to suit properties?
(iii) Whether the defendant No.10 to 13 respondent Nos.20 to 23 are entitled to their separate share if it is held that the suit 12 Patna High Court FA No.282 of 1996 dt.03-07-2012 12 / 27 property is joint without their being any valid and legal cross objection in the eye of law filed by them?
19. Admittedly, in view of the submissions of the parties summarized above, the facts emerges ware that Pandit Satyanand Kumar had 4 sons and 5 daughters. One daughter Renu Devi died on 25.11.2003. The other daughters are the defendant No.10 to 13. According to the plaintiffs, the family is still joint and there has been no partition. If this fact is found to be true as has been found by the trial Court, the daughters will have share equal to that of the brothers in view of the decision of the Apex Court reported in AIR 2012 SC 169. The Apex Court has considered the amendment in the Hindu Succession Act in the year 2005. At the same time, if it is held that there had already been partition in such circumstances, the partition cannot be reopened by the daughters.
20. Point No.(i) :- From perusal of the trial Court Judgment, it appears that the learned Court below has dismissed the plaintiff's partition suit on the ground that the plaintiff have not included the other joint family property. In the case of Kashinath Sah Yamosa Kabadi Vs. Narsingh Sah Bhaskarasa Kabadi AIR 1961 SC 1077, the Apex Court has held that it is always open to the members of a joint family to divide some properties of the family and to keep the remaining undivided vide paragraph 14. In the case of Apoorva Shantilal Sah Vs. Commissioner of Income Tax AIR 1983 SC 409, the Apex Court has again reiterated this proposition of law that a partial partition of properties brought about by the father between himself and his minor son cannot be said to be invalid under the Hindu law and must be held to be valid and binding. This right of the father to affect a partial partition of joint family properties between himself and his minor sons whether in exercise of his superior right as father or in exercise of his wights 13 Patna High Court FA No.282 of 1996 dt.03-07-2012 13 / 27 as patriya potestes has necessarily to be exercised bonafide by the father and is subjected to the rights of the sons. In the said decision at paragraph 27 again it has been reiterated that a partial partition does not become invalid on the ground that there has been no equal distribution among the co-sharer. The trial Court while dismissing the suit on the ground of partial partition has not at all considered these settled principle of law laid down by the Apex Court. There is no provision in the CPC for dismissing the suit on the ground that the suit is for partial partition. So far Hindu law is concerned, the general practice is that in partition suit all the properties should be included in the partition suit but if there is partial partition on that ground alone, the plaintiff cannot be nonsuited. In view of the above position of law, in my opinion, the learned trial Court has wrongly dismissed the plaintiff's suit on the ground of partial partition. Accordingly, this finding of the Court below that the suit is bad for partial partition is reversed. Thus point No.(i) is answered in favour of the appellant.
21. Point No.(ii) :- So far this point is concerned, the learned counsel appearing on behalf of the appellant submitted that the cross objection filed by the respondent No.25 is not according to law as prior to admission of the First Appeal and fixing the date of hearing by this Court, the cross objection have been filed in the year 1996. According to the provisions as contained in Order 41 Rule 22 C.P.C., the stage for filing of the cross objection arises only after the issue of the notice of the appeal to the respondent. In support of his contention, the learned counsel relied upon A.I.R. 1970 Rajasthan 234 Ram Kripal Vs. Radhey Shyam and A.I.R. 1976 Andhra Pradesh 81 Division Bench (Manthena Ramanana vs. Special Tahsildar. On the contrary, the learned counsel for the respondent No.25 without disputing this submission of the learned counsel for the appellant submitted that without 14 Patna High Court FA No.282 of 1996 dt.03-07-2012 14 / 27 filing cross objection, the respondent No.25 can challenge the finding of the Court below on this point. In view of the submissions made by the learned counsel appearing for respondent No.25 without going to the question raised by the appellant, now, let us consider as to whether the respondent No.25 can be allowed to challenge the finding recorded by the trial Court on the issue of jointness.
22. The learned counsel for the appellant on this question submitted that if no cross objection has been filed then the respondents cannot be allowed to challenge the finding of trial Court before the appellate Court. In support of his contention, the learned counsel relied upon the decision of the Apex Court 2010 (7) Supreme Court cases 717 Laxman Tatyaba Kankate Vs. Taramati Harishchandra Dhatrak paragraph 24. On the contrary, the learned counsel appearing on behalf of the respondent No.25 relied upon A.I.R. 1999 S.C. 3571 Ravinder Kumar Sharma Vs. State of Assam and 2007 A.I.R. SCW 766 S. Nazir Ahmad Vs. State Bank of Maysur and 2012 A.I.R. SCW 807.
23. Now, let us consider the decisions relied upon by the appellant, i.e., the case of Laxman Tatyaba (Supra). At paragraph 24, the Apex Court has held that "it is a settled principle of law that before the First Appellate Court, the party must be able to support the decree who cannot challenge the findings without filing the cross objection. As it appears from the record, the present appellant have neither filed cross objection nor their appeal challenging the findings recorded by the trial Court. In fact the entire conduct of the present appellant shows that they have not only failed to prove their claim before the Court of competent jurisdiction but have even not raised proper please in their pleadings". The learned counsel for the appellant emphasized the first portion of the observation made by the Apex 15 Patna High Court FA No.282 of 1996 dt.03-07-2012 15 / 27 Court in this paragraph 24. From perusal of the Judgment of the Apex Court, it appears that an agreement to sell dated 08.01.91 was entered into between the plaintiff and defendants. Rs.10,000/- was paid at the time of agreement. After taking permission, the defendant was required to execute sale deed after receiving the balance consideration amount. The plaintiffs filed the suit for specific performance of contract in which the plaintiff prayed alternative relief for refund of the earnest money. The learned trial Court uphold the agreement in favour of the defendant and recorded a finding that the plaintiff was ready to perform her part of the contract and had paid Rs.10,000/- as earnest money. It may be mentioned here that the stand of the defendant before the trial Court was that the signatures were obtained on blank papers. The trial Court decreed the plaintiff's suit granting alternative relief to refund the amount of Rs.10,000/- with cost at the rate of 6 per cent per annum. The plaintiff filed appeal before the first appellate Court. The appellate Court set aside the Judgment and decree of the trial Court regarding only refund of money and granted the decree for specific performance. The High Court sustained the decree passed by the first appellate Court. The defendant then filed appeal before the Apex Court and it was one of the point raised before the Apex Court that the signatures of the appellant were obtained on blank papers. The Apex Court in this context in paragraph 24 held that the finding of the trial Court was against the defendant-appellant before the appellate Court but no cross objection was filed by the defendant before the first appellate Court and, therefore, they cannot be permitted to challenge the finding of the trial Court.
24. In view of the above facts, it emerges that the trial Court disbelieving the case of the defendant that signature was obtained on blank paper in the garb of advancing loan of RS.2,000/- recorded a clear cut 16 Patna High Court FA No.282 of 1996 dt.03-07-2012 16 / 27 finding that Rs.10,000/- was paid as earnest money. This Judgment and decree was against the defendant and it is not a finding on an issue. In other words this was the alternative relief granted to the plaintiff by the trial Court and it was a decree. Therefore, in view of the Apex Court without filing cross objection, the defendant cannot be allowed to challenge that finding. In other words a part of the decree cannot be allowed to challenge without filing cross objection. Here, in the present case at our hand, it is not a decree or part of decree. Whether the property was joint or there was partition, was an issue before the trial Court and the trial Court has recorded a finding on this issue in favour of the plaintiff but on that ground, it cannot be termed as a part decree. The defendant-respondent could not have filed independent appeal against this finding on an issue because it is not a decree.
25. So far this provision as contained in Order 41 Rule 22 C.P.C. is concerned, the Hon'ble Apex Court has already settled the matter in the case of Banarsi and ors v. Ramphal 2003 Vol. 9 Supreme Court Cases 606. The Hon'ble Supreme Court in this decision at paragraphs 9 to 12 has held as follows:
"9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging the finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of the defendant-appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff-
respondent has neither preferred an appeal of his own nor taken any cross-objection. A right to file cross-objection is the exercise of right to appeal though in a different form. It was 17 Patna High Court FA No.282 of 1996 dt.03-07-2012 17 / 27 observed in Sahadu Gangaram Bhagade v. Special Dy. Collector, Ahmednagar that the right given to a respondent in an appeal to file cross-objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of cross- appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross-objection-both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended CPC.
10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross- objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by 18 Patna High Court FA No.282 of 1996 dt.03-07-2012 18 / 27 sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-
amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.
12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross- objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking specific performance of an agreement to sell governed by the provisions of the Specific Relief Act, 1963 the court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be granted by the court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross-objection."
26. In this decision, the Hon'ble Supreme Court was considering a suit for specific performance. After the above at paragraph 13, the Hon'ble 19 Patna High Court FA No.282 of 1996 dt.03-07-2012 19 / 27 Supreme Court held that in the absence of cross appeal or cross-objection by the plaintiffs-respondents, the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. So far the decisions of the Hon'ble Supreme Court either cited by the appellant or by the respondents as discussed above are concerned, I find no inconsistency.
27. It appears that in the decisions cited by the learned counsel for respondent No.25 as mentioned above are in the same line quoted above, therefore, it is needless to repeat the same proposition of law again. In other words, there is no contrary view of the Apex Court. In such view of the matter, in my opinion, here in the present case, the respondent No.25 can challenge the finding on the issue without filing cross objection.
28. Now, therefore, we have to consider as to whether there had already been partition between the parties or not. According to the plaintiffs, the suit property is joint whereas according to the respondent No.25 the property is not joint. From perusal of the lower Court Judgment, it appears that at paragraph 16, it has been mentioned that a number of witnesses have been examined on behalf of both the side in support of their respective contentions. But the learned trial Court instead of discussing the said evidences either oral or documentary in the same paragraph mentioned that it is needless to scrutinize and discuss the oral and documentary evidence of the witnesses in this regard. In view of the documentary evidence ext.'H' sale deed dated 19.8.83 which is anti litum, i.e. before filing the suit as such its evidentiary value cannot be doubted. In the said sale deed the boundary mentioned indicates no partition or separation of the suit house. Subsequent sale deeds, i.e., ext.'H' series and ext. 'A' series have been executed by the vendors during the pendency of the suit. Observing this the learned trial 20 Patna High Court FA No.282 of 1996 dt.03-07-2012 20 / 27 Court did not consider the evidences and recorded a finding that the suit property is joint.
29. The learned counsel for the respondent No.25 submitted that there are overwhelming documentary evidences to support that there was partition of the suit premises and moreover the statement made by the other co- sharer, i.e., 3 brothers of plaintiff No.1 regarding partition is admissible against the plaintiff. On the contrary, the learned counsel for the appellant submitted that presumption of Hindu law is that till the partition is proved the presumption will be that the joint Hindu family continued to be joint.
30. Now, let us consider the evidences. The plaintiffs have examined the witnesses including the plaintiff as P.W.1. The witnesses have stated that the property is still joint and there had been no partition. As has been submitted by the learned counsel for the appellant, Hindu law the family is presumed to be joint till the contrary is proved. Therefore, the evidence produced by the plaintiffs to the effect that there have been no partition is negative evidence. The presumption is in favour of the plaintiff. The burden is on the defendant to prove as to whether there had already been partition or not. In view of the above position of law, now let us consider the evidences adduced by the defendants respondents. Ext. 'O' and Ext. 0/1 are two sale deeds executed by plaintiff Ramanand Kumar in favour of Rama Devi and her husband with respect to the agricultural land of village. From perusal of the said two registered sale deeds dated 23.6.1988 which were executed during the pendency of the suit itself by the plaintiff, it appears that there is clear mention that the vendor is transferring the property which has been allotted in his share in private partition. It may be mentioned here that the plaintiff's case is that there had been no partition of the lands and the suit house. In these sale deeds, the plaintiff admitted during the pendency 21 Patna High Court FA No.282 of 1996 dt.03-07-2012 21 / 27 of the suit that there had been partition. This fact is not denied. P.W.1 who is the plaintiff No.1 at paragraph 38 of his deposition clearly admitted the fact that the memo of partition was signed by him and his other brothers. This memorandum of partition has been proved as ext.1. Now, the position of law will be that the presumption available regarding the jointness will not be there. It is settled law that once it is proved that there had already been partition with respect to some property then the presumption will be that there was complete partition of all the properties. It may be mentioned here that it is not the case of the plaintiff that the landed properties were partitioned and the suit house was left joined. The case of the respondent is that there was private partition in the year 1979 and memorandum was prepared. In paragraph 38, the plaintiff admitted his signature. There is no explanation about his statement, i.e., admission in these two sale deeds regarding previous partition. It is well settled that admission is the best evidence unless it is satisfactorily explained. A Division Bench of this Court in A.I.R. 1952 Patna 382 has held that once it is proved that there has already been partition with respect to some property, the presumption will be that there had already been complete partition.
31. The respondents have produced ext. 'S' which is application given by Krishna Nand Kumar, Gayanand Kumar plaintiff Ramanand Kumar and Durganand Kumar for separate mutation of their names of holding No.413/85A. This is another documentary evidences which indicates previous partition. If there was no partition, there was no question of filing this application for separate mutation arises. From perusal of this application, it clearly appears that it has been stated that there had been partition between the 4 brothers. No doubt, the plaintiff has denied his signature on this ext. 'S', but it is admitted fact that there is no denial of 22 Patna High Court FA No.282 of 1996 dt.03-07-2012 22 / 27 signature of his other 3 brothers. In other words the other 3 brothers of plaintiff No.1 have signed this document.
32. In the case of Ramjhari Kuer Vs. Dayanand Singh A.I.R. 1946 Patna 278, it has been held as follows :
".......The principle is that when several persons are jointly interested in the subject matter of the suit, an admission of any one of these persons is receivable not only against himself but also against the other defendants, whether they be all jointly suing or sued, provided that the admission relates to the subject matter in dispute and is made by the defendant in his character of a person jointly interested with the party against whom the evidence is tendered. The requirement of the identity in legal interest between the joint owners is of fundamental importance".
Later on, this decision was against followed by this Court in Ambika Devi Vs. Balmukund Pandey A.I.R. 1981 Patna 111 reiterating the same settled principle of law. Again the same has been followed by this Court in 2012 (2) P.L.J.R. 198 and reiterated the said principle.
33. In view of these settled propositions of law the statement made by the 3 brothers of the plaintiff in ext. '5' is admissible against the plaintiff. The admission made by the 3 brothers that there had already been partition which will go against the plaintiff.
34. The sale deeds which are ext. 'H', H/1, H/2, A2/1C, A2/1A, A2/1, A2/1B are the sale deeds executed by the 3 brothers of the plaintiff in favour of the contesting defendants. Ext. 'H' is dated 19.8.1983 executed by Krishna Nand Kumar to defendant No.15. Ext. A2/1A is dated 14.12.1983 executed by Vivekanand to defendant No.16. Ext. A2 to 1/C is dated 14.12.83 executed by K. N. Kumar to defendant No.17. Ext. 'A' to A/1 are the dated 31.5.84 executed by Gayanand Kumar in favour of defendant No.18. Ext. A/2 is also dated 31.5.84 executed by the Bhavanand Kumar in 23 Patna High Court FA No.282 of 1996 dt.03-07-2012 23 / 27 favour of defendant No.17. Ext. H/2 is dated 26.7.85 executed by Durganand Kumar in favour of defendant No.15 and likewise ext. H/1 is also dated 26.7.85 executed by Durganand Kumar in favour of defendant No.15. In all these sale deeds, the vendors, i.e., brothers of plaintiff No.1 stated that there had already been partition of the suit property between the 4 brothers and the vendor are transferring the houses and sahan allotted in their favour. As discussed above, these admissions of 3 co-sharers who had same and similar interest in the suit property and there was no dispute between them at the time of execution of the sale deed is admissible and relevant for deciding the fact of partition. In my opinion, these admissions of the co- sharers of plaintiff goes against the plaintiff.
35. Ext.-I, I/1 and ext. J are memo of partition signed by all the 4 brothers. As stated above, the plaintiff has admitted his signature in paragraph 38 of his deposition.
36. Ext. 'C' and E/4 are the report submitted pursuant to the application filed by the 4 brothers for mutation i.e., ext.'5'. On the basis of the report ext. E/6, order was passed for mutation with respect to the agricultural land separately in favour of 4 brothers as they had partitioned the property. From perusal of this ext. E/6, it appears that there is clear mention that there had already been partition of the Patna property i.e., the suit property because it is not the case of the parties that except the suit property, they have got other properties at Patna.
37. Ext. C2/1 is the order passed for mutation in respect of suit house in the name of 4 brothers as they have already partitioned. From perusal of this order also, it appears that there is mention about filing of copy of memo of partition along with mutation application. The order has been passed by 24 Patna High Court FA No.282 of 1996 dt.03-07-2012 24 / 27 the competent authority under the Municipal Act and, therefore, it is public document.
38. As stated above, none of these documentary evidences and their implications have been considered by the trial Court and only on the basis of boundary mentioned in the sale deed presumed that there had been no partition. It appears that the trial Court was swayed away on the fact that the boundary of the entire suit house and the boundary of the house purchased in the sale deed is same. In my opinion, this is not sufficient to come to a conclusion of fact regarding previous partition, particularly when the flats are in ground floor as well as on first floor. In such circumstances, there may be some mis-description of the boundary but on that ground alone, the other evidences discussed above cannot be disbelieved. Moreover the boundary of one flat on the first floor and the boundary of entire flat will be same. The Court below also not considered the holding numbers. The Court below also not considered that the brothers were allotted separate holding numbers. Had there been no partition whereas the question of allotting separate holding numbers to the 4 brothers.
39. In view of the above discussion of the evidences, I find that there had already been complete partition between the 4 brothers in the year 1979. The finding recorded by the trial Court is perverse because the trial Court recorded this finding of fact on the basis of inadmissible evidence and ignored the admissible evidences. Therefore, the finding recorded by the trial Court on this point is unsustainable. Accordingly, the same finding is hereby reversed. Thus, point No.(ii) is answered in favour of the respondent.
40. The learned counsels for the appellant submitted that the other contesting defendant-respondents-purchasers have not appeared to contest 25 Patna High Court FA No.282 of 1996 dt.03-07-2012 25 / 27 the appeal. In my opinion, on the ground that they have not appeared the finding recorded by the Court below cannot be upheld or the same cannot be bifurcated.
41. Point No. (iii) :- After considering the materials and evidences available on record while deciding point No.(ii), I have recorded that there had already been complete partition between the 4 brothers in the year 1979. According to this partition, admittedly, the brothers are dealing with the properties and they have already transferred their share to the purchasers. These daughters, i.e., defendant No.10 to 13 never claimed that the partition alleged to have been taken place between the 4 brothers is illegal. They filed the cross objection under Order 41 Rule 22 claiming their share before this appellate Court in the year 1996 prior to admission of the First Appeal itself which is contrary to the provision as contained under Order 41 Rule 22 C.P.C.
42. Order 41 Rule 22 CPC provides that the cross objection must be filed within one month from the date of service on him of notice of the day fixed for hearing the appeal or within such further time as the appellate Court may see fit to allow. Therefore, the cross objection filed prior to admission of the appeal will not be valid cross objection. There is no other provision in CPC which permits a party-respondent to file cross objection prior to admission of the appeal and fixation of date of hearing. In my opinion, therefore, this cross objection cannot be considered to be the valid and legal cross objection. Now, therefore, when there is no legal cross objection, the question will be whether these respondents can be allowed to challenge that part of the decree which was against them. It may be mentioned here that they prayed for their share in the written statement supporting the plaintiff's case. Their relief was rejected by the Court below. In other words, they 26 Patna High Court FA No.282 of 1996 dt.03-07-2012 26 / 27 were not granted the decree to the extent of their share. They could have independently preferred appeal against that part of the decree which was appealable. In view of the settled proposition of law regarding filing of cross objection as has been quoted above the decision of the Apex Court, in my opinion, the defendant No.10 to 13 now cannot be allowed to challenge that part of the decree of the trial Court which is against them and which was independently appealable at the instance of these respondents.
43. The other aspect of the matter is that since there had already been partition in the year 1979 and there is no case that the partition is bad or illegal how these daughters can be granted relief of partition. The plaintiffs approached the Court with unclean hand with a view to defeat the rights of purchasers and the defendant No.10 to 13 only joined with their brothers with the same view. None of these defendants were examined, i.e., they never appeared before the Court in the witnesses box. Moreover when there had already been partition as found above, there is no question of reopening of partition arises as this partition suit is not maintainable.
44. So far submission of the learned counsel for the appellant regarding amendment of the Hindu Succession Act in the year 2005 and the decision of the Apex Court in A.I.R. 2012 SC 169 is concerned, in my opinion, the same will not apply in this case. The provision will apply only if there had been no partition. If there is complete partition prior to amendment, the same cannot be reopened and that is the law settled by the Apex Court also.
45. Since there had already been partition between the parties, the partition suit itself is not maintainable. If partition suit is not maintainable then the daughters, i.e., defendant No.10 to 13 being the respondent cannot claim partition.
27 Patna High Court FA No.282 of 1996 dt.03-07-2012 27 / 27
46. In view of my above discussion, no relief can be granted to these respondents in this First Appeal. Thus, this point is also decided against these respondents.
47. In view of the above finding, Section 4 of the Partition Act will not apply and the plaintiff is not entitled for declaration of right to purchase, i.e., to preempt the share of the vendors of the contesting respondents. Section 4 of the Partition Act will apply in joint property only.
48. In view of my finding, I find no merit in this First Appeal. Accordingly, this First Appeal is dismissed. The plaintiff's suit for partition and preemption under Section 4 of the Partition Act is also dismissed. NO order as to cost.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 3rd July, 2012 Sanjeev/A.F.R.