Patna High Court
Dilip Kumar Mishra vs Deo Kumar Mishra on 15 May, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.26 of 2023
======================================================
Dilip Kumar Mishra S/o Late Ram Swarup Mishra Resident of Bajitpur
Kushahi, P.O. Kumar Bajitpur, Thana- Patepur, District- Vaishali 843110.
... ... Appellant
Versus
Deo Kumar Mishra S/o Late Ram Swarup Mishra Resident of Bajitpur
Kushahi, P.O. Kumar Bajitpur, Thana- Patepur, District- Vaishali 843110.
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr.Dilip Kumar Mishra (In Person)
For the Respondent/s : Mr.Prakash Chandra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH
MISHRA
C.A.V. JUDGMENT
Date : 15-05-2026
The present First Appeal has been preferred against the
Judgment dated 30.01.2023 and Decree dated 13.02.2023
passed by the learned Sub-Judge X, Hajipur, Vaishali, whereby
the suit filed by the appellant-plaintiff has been dismissed.
2. The facts of the case as stated by the plaintiff in his
plaint filed on 17.02.2018 is that plaintiff and defendant are
own brothers and members of Joint Hindu Family. As per the
case of the plaintiff, he requested the defendant for partition of
joint family property. The first attempt to divide the joint family
property was made by making a memorandum of partition dated
20.10.1994which was made by the defendant without any document. In absence of any document of the joint family with the plaintiff, no action for partition could be taken by the Patna High Court FA No.26 of 2023 dt.15-05-2026 2/21 plaintiff in the circle office. The plaintiff also states that with the wrong intention of harassing him, the defendant kept all the documents with himself and had not cooperated with the plaintiff and due to this wrong intention, filed a partition suit and despite repeated requests, the defendant flatly refused due to which appropriate action could not be taken in the circle office. The plaintiff has also stated in his plaint that the defendant has committed a lot of irregularities in the Memorandum of Partition dated 20.10.1994 and has deliberately shown non- cooperation and aggressive behavior against the plaintiff. The plaintiff further stated in the plaint that plaintiff has a cause of action due to the preparation of Memorandum of Partition dated 20.10.1994 for partition and the defendant's agitated refusal to the plaintiff's request on 25.08.2017 by not providing the necessary documents for the partition of the joint family property in the circle office.
3. The defendant appeared in the suit and filed written statement stating that the suit filed by the plaintiff is not maintainable and the plaintiff has no locus standi to bring such a suit. Further the present suit is barred by the Limitation Act, the principles of waiver, rescission, and acquiescence. The defendant further stated that the suit is filed for partition and Patna High Court FA No.26 of 2023 dt.15-05-2026 3/21 separate possession as also for a permanent injunction, whereas only a declaration for court fees has been filed. With regard to the facts of the case, the defendant further stated in written statement that that Mahavir Prasad had two sons, Ramswaroop Mishra and Ramrup Mishra, and Ramrup Mishra had already separated from his brother Ramswarup Mishra. Ramswaroop Mishra's had two sons namely Dev Kumar Mishra (defendant) and Dilip Kumar Mishra (plaintiff). The joint family property were divided between Ramswaroop Mishra and Ramrup Mishra long ago. The plots held in the names of Ramswaroop Mishra and Ramrup Mishra, father of Mahavir Mishra, were also divided in a proper manner, with Ramrup Mishra's heirs receiving possession and title to half of their share. The defendant further stated that in the year 1994, the plaintiff began pressurizing for the division of the inherited and acquired property upon which a panchayati was held and a Memorandum of Partition was prepared in the year 1994 which was signed by both plaintiff and defendant after reading and understanding it. According to the Memorandum of Partition and the partition agreement, both parties took possession of their respective shares and began to live, cultivate, and maintain the land. The plaintiff retained the Memorandum of Partition with Patna High Court FA No.26 of 2023 dt.15-05-2026 4/21 him. Later, the plaintiff also obtained the mutation of the total land in his share.
4. The learned trial court on perusal of the pleadings of the parties and after hearing them framed as many as nine issues which are as under:
(i) Whether the suit as framed is maintainable?
(ii) Whether the plaintiff has a valid cause of action?
(iii) Whether the suit is barred by the provisions of the Limitation Act, estoppel, waiver, or acquiescence?
(iv) Whether the suit land has been correctly valued and adequate court fees paid?
(v) Whether the suit is barred by the provisions of Section 34 of the Specific Relief Act?
(vi) Whether the plaintiff is entitled to a permanent injunction on the disputed land?
(vii) Whether the plaintiff is entitled to get half share by partition as per Annexure 2(a) and 2(b) mentioned in the plaint?
(viii) Whether the plaintiff is entitled to any other relief or reliefs claimed?
(ix) Whether the plaintiff is entitled to any other relief or reliefs?.
5. In support of the case, the plaintiff did not produce oral Patna High Court FA No.26 of 2023 dt.15-05-2026 5/21 or documentary evidence whereas three witnesses viz. Dev Kumar Mishra D.W. 1, Krishna Kumar Mishra D.W. 2 and Prashant Kumar D.W. 3 were produced on behalf of the defendants. The defendant also produced partition documents dated 20.10.1994 which were exhibited as Ext. A and Ext. A/1.
6. While deciding issue No. (vii), Court below held that the plaintiff did not produce any oral or documentary evidence in support of his claim. In spite of giving adequate opportunity, the plaintiff failed to produce any evidence. The plaintiff did not even produce himself for evidence nor did he cross-examine the witnesses produced by the defendant. It is settled principle of law that the onus lies on the plaintiff to prove his case and since the plaintiff failed to discharge the burden of proof and could not substantiate his claim over the suit property, issue No. (vii) was decided against the plaintiff. Issue Nos. (iv) and (vi) were also decided against the plaintiff since the relief claimed by the plaintiff included the disputed property not belonging to the family of the plaintiff and defendant. The other issues were formal issues and were decided against the plaintiff. The Court below on appreciation of the pleadings and evidence, recorded a finding that the plaintiff had not established any lawful right, title, interest or entitlement so as to merit a declaration in his Patna High Court FA No.26 of 2023 dt.15-05-2026 6/21 favour or recovery of possession. The court further observed that though multiple substantive reliefs, including declaration, possession, and permanent injunction, had been sought, only a nominal court fee of ₹250/- had been paid, and no proper ad valorem court fee was affixed in respect of the consequential reliefs claimed. In view of the failure of the plaintiff to prove his case on merits as well as the procedural defects noted above, the suit filed by the plaintiff was dismissed.
7. The appellant appeared in person and submitted that he and the respondent are real brothers and members of a joint Hindu family and the properties in dispute are joint family properties liable to partition. Disputes having arisen between the parties, a memorandum dated 20.10.1994 was prepared at the instance of the respondent-defendant. However, the said memorandum was never a valid or concluded partition nor was it acted upon before the competent revenue authority for separation of Jamabandi or mutation of shares. All title deeds and documents relating to the joint family properties remained in possession of the respondent, who deliberately withheld the same and obstructed the lawful claim of the appellant.
8. It is further submitted that upon scrutiny, the appellant discovered that the alleged memorandum contained false Patna High Court FA No.26 of 2023 dt.15-05-2026 7/21 recitals, misrepresentations, and fraudulent insertions and therefore could not be treated as proof of partition. Ultimately, on 25.08.2017, the respondent finally refused the appellant's demand for partition, leaving the appellant with no option but to institute Partition Suit No. 210 of 2018 before the learned Sub- Judge-X, Vaishali at Hajipur, seeking partition and separate possession of his lawful share in the suit properties along with an application for permanent injunction restraining alienation during pendency of the suit. The appellant further submits that the respondent filed his written statement beyond the prescribed period under the Code of Civil Procedure yet the learned Trial Court failed to properly consider the appellant's objection thereto. The appellant also filed an application for discovery and production seeking disclosure of title deeds, sale deeds, and other material documents exclusively in possession of the respondent, but the same was not duly considered. The appellant adduced oral and documentary evidence and also filed written arguments, fully contesting the respondent's plea of prior partition.
9. The appellant lastly submitted that by judgment dated 30.01.2023 and Decree dated 13.02.2023, the learned Sub-Judge X, Vaishali at Hajipur, dismissed the suit holding that the Patna High Court FA No.26 of 2023 dt.15-05-2026 8/21 appellant had failed to establish his case. The impugned Judgment is wholly unsustainable in law and on facts, in as much as the learned Trial Court failed to determine whether any valid partition had ever taken place, wrongly relied upon the alleged memorandum and interested witnesses, ignored the evidence adduced by the appellant, and failed to consider the illegal transfers and alienations made during pendency of the suit. The learned Court below further failed to identify the properties available for partition, ascertain the respective shares of the parties, and adjudicate the appellant's lawful entitlement. Hence, the impugned Judgment and Decree are fit to be set aside by this Hon'ble Court.
10. Learned counsel for the respondent submits that the present appeal is devoid of merit and is liable to be dismissed. The record of the case unequivocally demonstrates that despite repeated opportunities, the appellant willfully abstained from participating in the evidentiary stage, as duly recorded in paragraph 8 of the impugned judgment. The appellant neither entered the witness box nor subjected himself to cross- examination. It is settled law that pleadings, in the absence of proof, carry no evidentiary value; consequently, the plaint remains a mere compilation of unsubstantiated allegations. A Patna High Court FA No.26 of 2023 dt.15-05-2026 9/21 litigant cannot, while seeking equitable relief, simultaneously disregard the procedural discipline governing adjudication.
11. It is further submitted that the appellant, by his conscious and deliberate conduct, has waived his right to rebuttal and due process. Despite being present, he elected not to cross-examine the respondent's witnesses, thereby allowing their testimonies to remain unchallenged, unrebutted, and consequently deemed admitted. Reliance is placed on the judgment in Vidhyadhar vs. Manikrao 1999 SCC OnLine SC 294, wherein the Hon'ble Supreme Court has held that failure to enter the witness box warrants an adverse inference against such party. The appellant's conduct squarely attracts the doctrine of nihil dicit, rendering his case legally untenable.
12. It is further submission of the respondent that the appellant is further estopped from assailing the Memorandum of Partition dated 20.10.1994, having expressly admitted and acted upon the same for over two decades. The bald plea of fraud is wholly unsubstantiated, no evidence having been adduced in support thereof. In such circumstances, an adverse inference under Section 114(g) of the Indian Evidence Act, 1872 must necessarily be drawn. In Muddasani Venkata Narsaiah vs. Patna High Court FA No.26 of 2023 dt.15-05-2026 10/21 Muddasani Sarojana AIR 2016 SC 2250, it has been authoritatively held that failure to cross-examine amounts to acceptance of the opponent's case.
13. Lastly, it was submitted that the suit is ex facie barred by limitation, having been instituted in 2018 to challenge a partition effected in the year 1994. As held in Khatri Hotels Pvt. Ltd. vs. Union of India 2011 SC 3590, limitation commences from the date on which the right to sue first accrues. The suit is further vitiated by non-payment of proper court fees and misjoinder of parties and properties. In view of the aforesaid legal infirmities, coupled with the appellant's own contumacious conduct, the impugned judgment calls for no interference. The appeal is liable to be dismissed with exemplary costs.
14. Having the parties and upon a careful perusal of the records available on the file, the point for consideration in this appeal is whether the issue No. (vii) decided by the Court below is just, proper and in accordance with law or not or requires interference by this Court.
15. Before adverting to the merits of the case, it is apposite to first examine the scope and ambit of the relevant statutory/procedural provisions of the Bharatiya Sakshya Patna High Court FA No.26 of 2023 dt.15-05-2026 11/21 Adhiniyam, 2023 as also the Code of Civil Procedure, 1908 which are as under:
Bharatiya Sakshya Adhiniyam, 2023 (in short 'B.S.A.') "Section 1(2)- It applies to all judicial proceedings in or before any Court, including Courts-martial, but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator (corresponds to Section 1 The Indian Evidence Act, 1872)"
"Section 2(i)(e)- evidence' means and includes
(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;
(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;"
(corresponds to Section 3 of The Indian Evidence Act, 1872).
"Section 119. Court may presume existence of certain facts. (1) The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume that -
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx Patna High Court FA No.26 of 2023 dt.15-05-2026 12/21
(e) xxxx
(f) xxxx
(g) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"
(h) xxxxxx (I) xxxxx (corresponds to Section 114(g) of The Indian Evidence Act, 1872)"
ORDER XVIII RULE 4 of Code of Civil Procedure, 1908( for short C.P.C.) Recording of evidence.--(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-
examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit:
(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall Patna High Court FA No.26 of 2023 dt.15-05-2026 13/21 return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.] ORDER XIX RULE 1 of C.P.C.
Power to order any point to be proved by affidavit.-- Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court Patna High Court FA No.26 of 2023 dt.15-05-2026 14/21 thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
RULE 2 Power to order attendance of deponent for cross- examination.--(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.
RULE 3 Matters to which affidavits shall be confined.--(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:
Provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.
16. From bare reading of the various statutory and procedural provisions, it is very clear that 'affidavit' is not included in the definition of the term 'evidence' under section Patna High Court FA No.26 of 2023 dt.15-05-2026 15/21 2(1)(e) of the B.S.A. 'Affidavit' is also not defined in C.P.C. but commonly understood to mean that an affidavit is a declaration of fact made in writing and sworn before a person having authority to administer oath. Section 3(3) of the General Clauses Act explains that affidavit includes legally allowable affirmation and declaration instead of swearing. Thus, affidavit could be the oral testimony or statement on oath of a person. Since affidavit is not included in the definition of the B.S.A. as evidence, they can be used as evidence if for sufficient reason the Court invokes the provision of Order XIX of C.P.C. Thus, the C.P.C. (Amendment Act), 2002 permits the evidence in the form of affidavit. However, where the deponent can be available for cross-examination and an opportunity is given to other party to do so, the same can be relied upon.
17. In the present case, the plaintiff appeared and filed evidence in the form of affidavit but not turned up himself for cross-examination. No opportunity was given to adverse party for cross-examination. Under Order XVIII Rule 4 of the Code of Civil Procedure, 1908, examination-in-chief is required to be tendered by way of affidavit, and the evidentiary value of such affidavit is tested through cross-examination. Further, under Order XIX Rules 1 to 3 C.P.C., affidavits are permissible only Patna High Court FA No.26 of 2023 dt.15-05-2026 16/21 for proving facts within personal knowledge and are subject to the right of the opposite party to seek cross-examination. In the present case, the record reflects that the appellant failed to substantiate material facts through reliable and admissible evidence, and no compelling effort was made to ensure production of witnesses or documents essential to his case. The affidavits filed were, to a considerable extent, lacking in probative value, being either uncorroborated or insufficiently supported by primary evidence. It is also evident from the record that the appellant neither cross-examined the defendant nor made himself available for cross-examination, thereby depriving the respondent of the opportunity to test his case and further weakening the evidentiary worth of his pleadings.
18. Furthermore, Section 119(1)(g) of the B.S.A. (old 114(g) of the Indian Evidence Act) creates certain presumptions in certain circumstances with the object of helping the Court to decide on whom does the burden of proof lie in those circumstances. Illustration (g) of the above section enables the Court to presume that where an evidence is withheld by the party, it must be against him. Thus, the presumptions are necessarily made against persons who will not subject themselves to examination where a prima facie case is made Patna High Court FA No.26 of 2023 dt.15-05-2026 17/21 against them and when by their own evidence, they might have answered it. It is the bounden duty as per Section 104 of the B.S.A. (old Section 101 of the Evidence Act) that any person who desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
19. In the case of Ramji Jankiji and another Vs Mauni Baba Kale Kambalwala Jai Siyaram Dasji and Others A.I.R. 1978 PATNA 48 wherein in paragraph 5, a Division Bench of Patna High Court held as under:
".................It is true that there is no rule of law that the plaintiff must examine himself as witness in order to establish his case. But a Court of law is entitled to draw an inference adverse to the plaintiff if he does not have the courage to depose what he has claimed to prove facts mentioned, in the plaint. A Court would be fully justified in not accepting the averments in the plaint unless there is other coercive evidence in support of it..............."
20. The aforesaid pronouncement unequivocally affirms that although there is no absolute legal mandate requiring a Patna High Court FA No.26 of 2023 dt.15-05-2026 18/21 plaintiff to enter the witness-box, the failure to do so, in the absence of any justifiable cause, entitles the Court to draw an adverse inference against him. The rationale underlying the said principle is that the best evidence in support of the facts pleaded by a party is his own sworn testimony, subjected to the test of cross-examination. Where such evidence is withheld, the Court is justified in doubting the veracity of the pleadings.
21. Significantly, Section 119(1)(g) of the B.S.A. embodies the well-settled principle that where relevant evidence is withheld, an adverse inference may be drawn against the party so withholding it. In the instant case, while the appellant alleged that the respondent was in possession of title deeds and other material documents, the appellant did not take effective legal steps to compel their production in accordance with law, nor did he adduce secondary evidence to prove his claim. The failure to bring on record the best available evidence weakens the appellant's case and justifies drawing an adverse inference against him.
22. The position is further fortified by the principle laid down in Vidhyadhar v. Manikrao, reported in 1999 SCC OnLine SC 294 (para 17) , the Hon'ble Supreme Court held as Patna High Court FA No.26 of 2023 dt.15-05-2026 19/21 under:
"Where a party to the suit does not enter the witness-box to depose on oath in support of his own case and does not offer himself for cross-
examination by the opposite party, a presumption would arise that the case set up by him is not correct............"
23. Upon analysing the principle laid down in paragraph 17 of Vidhyadhar v. Manikrao (supra), this Court finds that the Hon'ble Supreme Court has reaffirmed a settled rule of evidence that where a party, having personal knowledge of the facts constituting his own case, does not enter the witness-box to depose on oath and avoids cross-examination, a presumption may legitimately arise that the case set up by him is not correct. The reason is that the best evidence in support of a party's own pleadings is his sworn testimony, tested on the touchstone of cross-examination. Mere pleadings or unverified assertions, howsoever strongly worded, do not amount to proof in the eye of law.
24. In the present case, the plaintiff neither appeared in witness box and nor produced himself for the cross-examination for defendant nor produced any further oral or documentary evidence. Thus, where a litigant withholds himself from the witness-box, denies the opposite party the valuable right of Patna High Court FA No.26 of 2023 dt.15-05-2026 20/21 cross-examination and withholds the best available evidence from the Court. In such circumstances, the Court is fully justified in drawing an adverse inference against such party while appreciating the merits of the dispute.
25. The facts of the present case is in complete consonance with the law laid down in Vidhyadhar v. Manikrao (supra) and the provision of Order XVIII Rule 4 CPC and Order XIX Rules 1 to 3 CPC, which collectively underscore that pleadings and affidavits, in the absence of substantive proof, do not constitute evidence in the eye of law. The evidentiary value of assertions made by a party stands materially diminished when such party avoids cross-examination and fails to produce independent and reliable corroboration.
26. Thus, the whole principle is that if the plaintiff fails to enter into the witness box and fails to present any evidence whether oral or documentary, then the case will be dismissed. Under such circumstances, the evidence of the plaintiff is liable to be eschewed, rendered inadmissible.
27. Taking into account the aforesaid principle laid down with regard to the facts of the present case, it becomes clear that the plaintiff-appellant having neither entered the witness-box Patna High Court FA No.26 of 2023 dt.15-05-2026 21/21 nor subjected himself to cross-examination, and having failed to adduce cogent documentary or oral evidence in support of his case, has withheld the best available evidence. In such circumstances, this Court has no hesitation in holding that an adverse inference is liable to be drawn against the appellant, and the unsubstantiated averments in the plaint cannot be accepted as proof of the claims asserted therein. The judgement dated 30.01.2023 and decree dated 13.02.2023 passed by the learned Sub-Judge X, Hajipur, Vaishali is legal, justified and does not require any interference by this Court.
28. The appeal is dismissed without any cost.
(Rudra Prakash Mishra, J)
Pankaj/AFR
AFR/NAFR AFR
CAV DATE 21.04.2026
Uploading Date 15.05.2026
Transmission Date