Patna High Court - Orders
Shyam Sundar Thakur vs Ram Charittar Thakur & Ors. on 11 November, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.102 of 2013
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1. Shyam Sundar Thakur S/O Jainarain Thakur R/O Village- Hanuman
Nagar, P.S.- Singhwara, District- Darbhanga.
.... .... Appellant/s
Versus
1. Ram Charittar Thakur S/O Late Babu Sri Kishun Thakur R/O Village-
Hanuman Nagar, P.S.- Singhwara, District- Darbhanga
2. Jaimangal Thakur S/O Ram Charittar Thakur R/O Village- Hanuman
Nagar, P.S.- Singhwara, District- Darbhanga
3. Shatrughan Thakur S/O Ram Charittar Thakur R/O Village- Hanuman
Nagar, P.S.- Singhwara, District- Darbhanga
4. Jai Narain Thakur S/O Late Raghunath Thakur R/O Village- Hanuman
Nagar, P.S.- Singhwara, District- Darbhanga
5. Brahmdev Thakur S/O Late Raghunath Thakur R/O Village- Hanuman
Nagar, P.S.- Singhwara, District- Darbhanga
6. Ram Ashish Thakur S/O Late Raghunath Thakur R/O Village- Hanuman
Nagar, P.S.- Singhwara, District- Darbhanga
7. Madan Thakur S/O Brahmdev Thakur R/O Village- Hanuman Nagar,
P.S.- Singhwara, District- Darbhanga
8. Murli Thakur S/O Brahmdev Thakur R/O Village- Hanuman Nagar, P.S.-
Singhwara, District- Darbhanga
9. Santosh Thakur S/O Ram Ashish Thakur R/O Village- Hanuman Nagar,
P.S.- Singhwara, District- Darbhanga
10. Arvind Kumar Thakur S/O Shyam Sundar Thakur R/O Village-
Hanuman Nagar, P.S.- Singhwara, District- Darbhanga
11. Amarnath Thakur S/O Shyam Sundar Thakur R/O Village- Hanuman
Nagar, P.S.- Singhwara, District- Darbhanga
12. Manish Thakur S/O Shyam Sundar Thakur R/O Village- Hanuman
Nagar, P.S.- Singhwara, District- Darbhanga
13. Rajnish Thakur S/O Madan Thakur R/O Village- Hanuman Nagar, P.S.-
Singhwara, District- Darbhanga
14. Rupesh Thakur S/O Murli Thakur R/O Village- Hanuman Nagar, P.S.-
Singhwara, District- Darbhanga
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Prem Kumar Jha
For the Respondent/s : Mr. Imteyaz Ahmad
Mr. Ajay Kumar Thakur
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
ORAL ORDER
7 11-11-2014Defendant no. 4 of the suit has filed the appeal assailing the judgment and decree dated 7.1.2013 and 15.1.2013 respectively passed by 1st Additional District Judge, Darbhanga in T.A. No. 39 of 2007 whereby appeal of the plaintiff was allowed Patna High Court SA No.102 of 2013 (7) dt.11-11-2014 2 and the judgment and decree dated 8.11.2007 and 15.11.2007 respectively passed by Munsif-II, Darbhanga in Partition Suit No. 124 of 1989/34 of 1991 was set aside.
The plaintiff filed the suit for partition to the extent of 2/3 share in the suit property appertaining to plot/khesra No. 186 (new plot no. 321) measuring a total area of 4 kathas 7 dhurs. The plaintiffs claimed 2 kathas 18 dhurs therein whereas the defendants were entitled to only 1 katha 9 dhurs share. As per the plaint, the common ancestor of the parties was one Ganga Thakur who died leaving behind seven sons out of whom one son namely Ram Thakur died issueless in the state of jointness. As such, upon death of Ganga Thakur, the properties devolved upon six surviving sons who had amicably partitioned the property and C.S. Khatiyan was accordingly prepared. Further case of the plaintiffs is that suit land which is homestead land was also partitioned in which Baidyanath Thakur, Sriram Thakur and Mahinarayan Thakur jointly got one portion (Janana Haweli) thereof whereas Baidyanath Thakur was given half and rest half share was allotted between Sriram Thakur and Mahi Narayan Thakur to the extent of half and half (out of remaining half shares) According to the plaintiffs, out of 25 decimals of land (equivalent to 5 kathas 15 dhurs) in old plot no. 186, Baidyanath Thakur got half share (12 ½ decimals) and in remaining half share (12 ½ decimals), Sriram Thakur and Mahi Narayan Thakur got 6 ¼ decimals of land. The Patna High Court SA No.102 of 2013 (7) dt.11-11-2014 3 old khatiyan was, therefore, prepared illegally wherein Baidyanath Thakur was shown in possession of 12 decimals in plot no. 186. In fact, in old Khesra no. 186 (25 decimals), Baidyanath Thakur was allotted to the extent of half share and ¼ share went to Sriram Thakur whereas rest 1/4th share went to Mahi Narayan Thakur. Mahi Narayan Thakur died issueless in the state of jointness with his brothers. He had no heir and/or surviving brother and, therefore, his share devolved on the son of Daya Thakur, Brij Lal Thakur, Maharaj Thakur and Sriram Thakur who amicably partitioned the same wherein homestead land of Mahi Narayan Thakur in plot no. 186 was allotted to Baidyanath Thakur and Raghunath Thakur in equal proportion in lieu of allotment of land in plot no. 186. Fekan Thakur and Jagarnath Thakur were given another piece of land. Accordingly, the parties were mutated in the serista of Raj Darbhanga in respect of agricultural land. Baidyanath Thakur died leaving behind a son Sri krishna Thakur who also died leaving behind his son Ram Charitra Thakur (plaintiff-respondent first party). Ram Charitra Thakur and the Defendant nos. 4, 5 and 6 jointly sold one Katha 8 dhurs in plot no. 186 in the year 1957 and as such, out of remaining 4 kathas 7 dhurs in plot no. 186, the plaintiff claimed 2/3 share and rest 1/3 rd share to be given to the defendants. During R.S. operation, plot no. 321 was carved out from old plot no. 186 having area of 19 decimals (4 kathas 7 dhurs) in which the defendant claimed that Patna High Court SA No.102 of 2013 (7) dt.11-11-2014 4 Mahi Narayan Thakur had adopted Raghunath Thakur as Karta- Putra and in such capacity, he got his ¼ share in plot no. 186. Accordingly, the property of Mahi Narayan Thakur was equally partitioned among four nephews after his death. The defendants led false claim over the suit land resulting in filing of Partition Suit No. 188 of 1982 which was dismissed on 1.2.1989 in default followed by the present suit.
Defendant no. 4 contested the suit alleging in the written statement that there was no unity of title and possession in respect to plot no. 186 since last many decades and as such, there was no question of partition. They also raised an issue of maintainability of the suit. The suit was in fact filed for declaration of title and recovery of possession in the garb of partition suit. The genealogical table set out by the plaintiffs was accepted. It was stated that Mahi Narayan Thakur had no heir and due to love and affection, he made Raghunath Thakur as his Karta-Putra for which he was given 1/3 of his share in the said homestead land and executed a memorandum (Chittha) and Raghunath Thakur came in exclusive possession over 1/3 share of Mahi Narayan Thakur in plot no. 186. Part of the suit land from eastern side was sold in 1957 but the homestead land in the share of Mahi Narayan Thakur was not sold. The plaintiff had, therefore, left with only with 5 decimals of land in plot no. 186. The defendant apart from 1/3 share also claimed 1/3 share of Mahi Narayan Thakur as Karta- Patna High Court SA No.102 of 2013 (7) dt.11-11-2014 5 Putra in the suit property.
Having appreciated the rival pleadings of the parties, the Trial Court framed issues and the parties led evidence. On appreciation thereof, the Trial Court dismissed the suit holding inter alia that the plaintiff failed to prove jointness with respect to the suit plot. The land in question in plot no. 186 had already been partitioned between the co-sharers. The plaintiff was required to file an application for restoration of the earlier partition suit which was dismissed for non-prosecution and instead of doing so filed the present partition suit. Aggrieved thereby, the plaintiffs filed the appeal. The Appellate Court apprising itself of the case of the parties and the evidence led in support thereof formulated the following points for consideration/adjudication:
"13. On rival contentions of the parties following points have been formulated:-
a. Whether, there is unity of title and possession between the parties in the suit land?
b. Whether, late Raghunath Thakur was
Karta-Putra of late Mahi Narayan Thakur?
c. Whether, the judgment and finding
recorded by Ld. Munsif is tenable under law?
d. Whether, Plaintiffs/Appellants are entitled
to partition to their 2/3rd share claimed in the suit land?
Appraising the oral evidence adduced by the parties and the documentary evidence particularly Ext. G/1 (certified copy of the order passed by Settlement Officer), Ext. 2 (certified copy of the mutation proceeding), the Appellate Court negated the case put up by the defendant that he was Karta-Putra of Mahi Narayan Patna High Court SA No.102 of 2013 (7) dt.11-11-2014 6 Thakur. Dealing with point no. 1, the Appellate Court in the light of the legal proposition propounded by the Courts held that in a situation like this, the presumption of jointness in the family becomes weak nonetheless if there is cogent and reliable evidence to support the case of jointness and where both parties know the case of each other and lead evidence then the finding contrary to such weak presumption can always be recorded. Partial partition in the family was not alien to Hindu Law and separate transaction and separate cultivation was not always indicative of partition by metes and bounds. The R.S. Khatiyan was recorded jointly in the names of both the parties and, therefore, possession of one party over the suit land was of little consequence for proving partition by metes and bounds. Having critically analyzing the evidence both oral and documentary, the Appellate Court held that the materials on record did not disclose partition by metes and bounds and unity of title and possession existed between the parties with respect to the suit land and accordingly the finding on the said issue recorded by the Trial Court was reversed. The other points were also decided in favour of the appellants-plaintiffs. Resultantly, the appeal was allowed and the judgment and decree passed by the Trial Court was set aside. The plaintiffs were held entitled to half share in the suit property to be carved out by appointment of Survey Knowing Pleader Commissioner. Aggrieved thereby, the present appeal has been filed. Patna High Court SA No.102 of 2013 (7) dt.11-11-2014 7
Heard Mr. Prem Kumar Jha in support of the appeal. Counsel for the respondent has appeared to submit that the judgment under appeal does not suffer from any fundamental flaw and the appeal does not raise any substantial question of law.
While criticizing the judgment under appeal, it has been urged that the findings of the Appellate Court that there was unity of title and possession between the parties at the time of institution of the suit is erroneous. The Appellate Court has not properly appreciated the evidence available on record inasmuch as has not set out reasons for differing with the findings of the Trial Court on the relevant issues. In deciding the issue, the Appellate Court has underplayed the salient feature(s) of the case that the parties hereto were 3 to 5 degree below their ancestors and since then they were living separately and cultivating their lands as such. The judgment suffers from perversity. Once the suit properties are found to be in possession and enjoyment of different family members in different proportion since last several years any such finding could not have been recorded that there was unity of title.
In my view, none of the above submissions of Mr. Jha would constitute a substantial question of law. What has been argued principally relates to appreciation of evidence and drawing conclusions therefrom. Until and unless they are shown to be wholly perverse, the Court in exercise of its jurisdiction under Patna High Court SA No.102 of 2013 (7) dt.11-11-2014 8 Section 100 of the C.P.C. would not interfere therewith and substitute its own view. On perusal of the judgment under appeal, it appears to this Court that the Appellate Court keeping in focus the legal position and the facts evidencing from the materials on record has held that there was unity of title between the parties respecting the suit land. The Appellate Court has assigned good and valid reasons therefor as is evident from paragraphs 14 and 16 of the judgment. The Appellate Court has taken notice of diverse transactions which had taken place in the meanwhile jointly by the plaintiffs and the defendants inasmuch it also found that both the parties were in possession over suit land. The case put up by the plaintiff that there was no partition by metes and bounds was, therefore, found acceptable. Furthermore, the defendant(s) had claimed additional share in the property on the strength of a Chittha showing him as the Karta-Putra of Mahi Narayan Thakur. The Appellate Court relying on oral evidence as well as Ext.2 negated the said case of the defendant(s). The Chittha on the strength of which the defendants claimed extra pound of flesh in the property could not be treated either as a will or gift. In case of will, the same was required to be probated. In case of gift, it required registration. The case of the defendant based on aforesaid Chittha was thus rightly held untenable in law. The evidence both oral and documentary to resolve the controversy between the parties has received better appreciation at the hands of the Patna High Court SA No.102 of 2013 (7) dt.11-11-2014 9 Appellate Court.
In A.I.R. 1999 SC 2213 (Kondiba Dagadu Kadam vs. Savitribai Sopan Gular), the Apex Court in paragraph 5 observed as under:
"5.It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of the law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
For the reasons aforenoted, this Court finds no merit in the appeal. It is, accordingly, dismissed.
(Kishore Kumar Mandal, J) Pankaj/-
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