Patna High Court
Nakat Sao @ Anaugi Sao vs Anup Sao on 26 April, 2012
Author: Shailesh Kumar Sinha
Bench: Shailesh Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.133 of 1990
Against the judgement and decree dated 17th March, 1990 passed by
the 2nd Subordinate Judge, Munger in Title Suit No. 18 of 1986
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1. NAKAT SAO ALIAS ANANDI SAO SON OF LATE RAM SAO
2. SMT. MAUKI DEVI WIFE OF SHRI BIRANCHI SAO
3. DHATHURI SAO SON OF GHINA SAO
4. SATYAM MINOR SON OF NAKAT SAO ALIAS ANANDI SAO, UNDER
GUARDIAN OF HIS FATHER NAKAT SAO @ ANANDI SAO, RESIDENTS
OF VILLAGE SHAHPUR ALIAS SAIDPURA, P.O.- ALINAGAR, P.S. &
ANCHAL SURYAGARHA, SUB-REGISTRY & SUB-DIVISION MUNSAFI
LAKHISARAI, PRAGANA SURYAGARHA, DISTRICT- MONGHYR
.... .... Appellant/s
Versus
1. ANUP SAO
2. KANO SAO, BOTH SONS OF LATE HARI SAO
3. ASHOK SAO SON OF ANUP SAO
4. DEAD
5. PRASADI SAO
6. SHEO NANDAN SAO
7. JIWAN SAO SONS OF LAKHAN SAO
8. KAUSHALYA DEVI WIFE OF RAGHUNANDAN SAO
9. KAROO SON OF LATE RAGHUNANDAN SAO
10. MOTI SAO
11. KUMAR SAO
12. BOTAL SAO
13. LAXMI SAO SONS OF LATE GIRDHARI SAO
14. BRIJNANDAN SAO
15. OM PRAKASH SAO
16. MILO SAO SONS OF MOTI SAO
17. BALESHWAR SAO
18. GAYA SAO
19. SITA RAM SAO SONS OF KUMAR SAO
20. MUSHARU SAO
21. BIJENDRA SAO SONS OF LAXMI SAO
22. BINOD SAL SON OF LAXMI SAO
23. KOKAI SAO
24. BITAN SAO
25. SURESH SAO SONS OF MASUDAN SAO ALIAS DINGER SAO
26. MASUDAN SAO @ DINGER SAO SON OF LATE BHAYA LAL, RESIDENTS
OF VILLAGE SHAHPUR @ SAIDPURA, P.S. ALINAGAR, P.S. & ANCHAL
SURYAGARHA, DISTRICT- MONGHYR
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rajesh Chandra Narayan
Mr. Sanjay Priya
Mr. Pravin Kumar Sinha
Mr. Amrit Abhijat
Mr. Manoj Kumar Gupta
Mr. Ran Vijay Singh, Advocates
Patna High Court FA No.133 of 1990
2
For the Respondent/s : Mr. Najmul Hoda,
Mr. Rajiv Shankar Pd.,
Mr. Anjani Kr.Sharma, Advocate
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CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA
ORAL JUDGMENT
Date: 26-4-2012 The appeal is directed against the judgement and decree dated 17th March, 1990 passed by the 2nd Subordinate Judge, Munger in Title Suit No. 18 of 1986, whereby the plaintiffs' suit was dismissed.
Shortly stated plaintiffs filed the aforesaid title suit no. 18 of 1986 for partition and prayer for grant of preliminary decree with respect of 3 decimals of land in schedule IV and 71 decimals of land in schedule V appended to the plaint of the suit. The further relief sought for was for appointment of Survey Knowing Pleader Commissioner for carving out the aforesaid land from schedules IV & V and the plaintiffs be put in possession through the process of the Court.
The case of the plaintiffs in nut shell is that a partition had taken place between the sons of Kharo Sao in the year 1930 and since then they are dealing with the property by executing several sale deeds in favour of different persons. Further case is that son of Natho Sao namely, Tilakdhari Sao @ Tilo Sao left the village and he also dealt with the properties by execuyting sale deeds in favour of different persons. However, the land as mentioned in schedules IV & V was sold by the said Tilakdhari Sao @ Tilo Sao on 24.11.1941 (Exhibit-1B) with Patna High Court FA No.133 of 1990 3 respect to 71 decimals of land and 3 decimals of land as per the sale deed dated 17.03.1965 (Exhibit-1A). Further case of the plaintiffs is that although a partition had taken lace in the family in the year 1930 and since then the members of the family were living separately and having separate food, however, the said partition was effected with respect to the land without mentioning the boundary of the lands although the area was correct.
On the other hand, defendants' case is that the partition in the family had taken place in the year 1949 by meets and bounds, and as such, there could be no case for fresh partition. Further case of the defendants is that the plaintiffs' suit is virtually for declaration of title and possession with respect to the land mentioned in schedules IV & V of the plaint and otherwise also the suit for partition as filed by the plaintiffs is not tenable in law in absence of Tilakdhari Sao @ Tilo Sao son of Natho Sao and the purchasers to whom he had sold out the land. In other words, the suit was also not maintainable for partition in absence of necessary party affecting the merits of the claims for partition.
The Court below on considering the oral as well as documentary evidence on record dismissed the suit holding that admittedly as per the plaintiffs' case is that the family was parititoned in the year 1930, and thereafter, members of the joint family dealt with the property separately having separate kitchen Patna High Court FA No.133 of 1990 4 and residence. As such, the partial partition with respect to the land as mentioned in schedules IV & V being impermissible in law. The Court elow further found that the plaintiffs' suit was for declaration of title and possession with respect to the land mentioned in aforesaid two schedules of the plaint. The Court below, however, upon considering the evidence held that the partition had already taken place in the family in the year 1949 as claimed by the defendants. Moreover, the suit for partition as claimed by the plaintiffs could not be decided in absence of Tilakdhari Sao @ Tilo Sao. The Court below accordingly dismissed the suit for parititon as prayed for in the suit. The plaintiffs being aggrieved by the aforesaid judgement of the Court below preferred the present appeal.
Mr. Yogesh Chandra Verma, learned Senior counsel appears for the appellant, however, no one appears on behalf of the respondents.
In course of hearing of the appeal, learned counsel for the appellant could not dispute that the suit for partial partition is not maintainable in law. The finding of the Court below that a partition had taken place in the year 1949 was seriously disputed. Learned counsel submits that in absence of any cogent evidence on the record much less in absence of any proper consideration of the oral evidences adduced on behalf of the plaintiffs as also of the defendants' witnesses besides the documentary evidence. No such finding that partition had Patna High Court FA No.133 of 1990 5 already taken place in the year 1949 could have been arrived. In other words, it is submitted that on perusal of the judgement, it would appear that there is no consideration of the evidences on record in its correct perspective dealing with the deposition of the witnesses. The Court below for the purpose of holding that the family was already partitioned in the year 1949 relied upon certain rent receipts as per Exhibit-B series whereas the plaintiffs had produced several registered sale deeds in respect of property dealt with by the members of the family after the partition of 1930. Learned counsel submits that the plaintiffs had purchased the land from Tilakdhari Sao @ Tilo Sao as mentioned in schedules IV & V of the plaint that was required to be carved out with its respective boundaries, and as such, the preliminary decree of partition was sought.
Upon considering the submissions advanced on behalf of the appellant and on perusal of the plaint of the suit as also the evidence brought on the record, it would appear that admittedly plaintiffs sought for a decree of partition with respect to the land mentioned in schedules IV & V of the plaint through a preliminary decree and later a final decree was sought to be prepared by appointment of Survey Knowing Pleader Commissioner. Learned counsel could not support that a partial partition can be permitted in law. It appears that the plaintiffs virtually sought for a declaration of title and possession with respect to the aforesaid land mentioned in the aforesaid Patna High Court FA No.133 of 1990 6 schedules IV & V, and as such, a suit for partition is not maintainable on its own case of the plaintiffs that partition had taken place in the year 1930, however, without mentioning boundaries of the land under partition although the area was correct. In case the plaintiffs' suit for partition is accepted, in such case, in absence of the son of Natho Sao comes into the way since in the absence of the necessary party affecting the merits of the suit cannot proceed, and therefore, suit for partition is liable to be dismissed. In my opinion, the plaintiffs' suit for partition of specific land mentioned in schedules IV & V of the plaint since it is the case of the plaintiffs that there was partial partition in the family and were acted upon by coming into possess of the respective plots and dealt with the property by executing several sale deeds more so in absence of the necessary party i.e. the son of Natho Sao, as such, the suit was rightly dismissed. However, no finding that the family was partitioned in the year 1949 could be given for the similar reason of the absnce of the son of Natho Sao namely, Tilakdhari Sao @ Tilo Sao. In case, it is found that the suit is bad in law for claiming a partial partition, the same is to be dismissed without having any further finding. In my opinion, the finding recorded by the Court below that a partition took place in the family in the year 1949 is not sustainable in law, more so, in absence of any cogent evidence on the record in support of such finding.
In the result, for the reasons and discussions Patna High Court FA No.133 of 1990 7 made above, the judgement and decree dismissing the suit is affirmed, however, the finding of the Court below that a partition had already taken place in the family in the year 1949 is set aside. It is, however, clarified that this Court has not expressed any opinion on merits with respect to the claim of title and possession of the land mentioned in schedules IV & V of the plaint, as claimed by the plaintiffs and the judgement in the present appeal shall not come into the way of the respective parties in availing appropriate remedy for redressal of their grievance in a properly constituted proceeding before the appropriate forum as per law, if so advised.
The appeal is accordingly disposed of with the above observations/directions. No costs.
(Shailesh Kumar Sinha, J) Patna High Court NAFR/Manish