Patna High Court
Ram Kumari vs Jagarnath Choubey And Ors. on 17 December, 1997
Equivalent citations: 1998(2)BLJR884
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This appeal by the plaintiff appellant is directed against the judgment and decree dated passed by Sri M.L. Chaudhary, Subordinate Judge, Garhwa, in Partition Suit No. 61 of 1981 dismissing the plaintiff's suit for partition of her half share in the suit property.
2. The plaintiff's case, inter alia, is that Govind Choubey and Parmeshwar Choubey held ancestral 'Muqarrari' interest in village Ranadih and Sonepurwa. Parmeshwar Choubey died long before survey and his entire interest devolved upon her heirs Shiv Dutta Choubey and Aklu Choubey. At the time of survey, their names were recorded under Khewat No. 13/1 of village Ranadih jointly with Govind Choubey. The plaintiff's further case is that a few years after survey, the three recorded persons i.e. Shiv Dutta Choubey, Aklu Choubey and Govind Choubey amicably partitioned all the property by virtue whereof Shiv Dutta Choubey and Aklu Choubey were allotted separate 'takhta'. In addition to the aforesaid ancestral interest, Shiv Dutta and Aklu Choubey purchased land through several sale-deeds and came in joint possession of the same. The plaintiff's case is that Aklu Choubey died in the month of October, 1942 and after his death, his interest devolved upon his widow Kaushalya Kunwar under the Hindu Women's Right to Property Act, Kaushalya was a 'parda-nashin' lady and, therefore, she left the management of her shares into the hands of Shiv Dutta Choubey, who managed the same till his death which took place in the year 1965. Shiv Dutta Choubey, in the vesting of the Zamindari, filed returns in his own name for the village Ranadih and for the village Sonepurwa, returns were filed in the name of his son Jagarnath Choubey. The plaintiff's further case is that Kaushalya Kunwar died in the month of 'shrawan' in the year 58 leaving behind the plaintiff as her only daughter who held interest of her mother Kaushalya Kunwar. It is alleged that the plaintiff was married at the age of 17 years and was living in her Sasuraal and Shiv Dutta Choubey till his death, and thereafter his son, used to send produce of the land to the plaintiff. The plaintiff required money for the marriage of her daughter and for that, she decided to sell some land, which she inherited from her mother. When the husband of the plaintiff approached defendant No. 1 for giving documents for this purpose, he was told that he had no papers concerning the land. So, suspicion arose in the mind of the plaintiff and thereafter, the plaintiff's husband made inquiries in the revenue office and came to know that the land had been assessed in the name of the defendant No. 1 for both the aforementioned villages. The plaintiff thereafter repeatedly demanded partition from the defendants and the latter failed to do so ; hence the suit.
3. The defendant No. 1 contested the suit by filing written statement denying and disputing each and every allegation made in the plaint. Besides other pleas the dates of death of Aklu Choubey and Kaushalya have been denied. According to the defendants, Aklu Choubey died in 1940 and not in the year 1942 and after his death, his interest devolved upon Shiv Dutta Choubey by survivorship. It is stated that no interest of Aklu Choubey devolved upon Kaushalya. It is also denied that Kaushalya died in 1958. According to the defendants, Kaushalya died in the year 1944 and after her death, the plaintiff who was a minor, was brought up by Shiv Dutta Choubey and her marriage was also performed by him. The defendant's further case is that Shiv Dutta Choubey during his life separated his sons Jagarnath and Bishwanath Choubey and in their shares, land of Sonepurwa was allotted and he kept with him the land of village Ranadih and, accordingly, after the vesting of Zamindari, returns were filed and assessed in their names. Shiv Dutta Choubey died in 1965 leaving behind Jagarnath and Bishwanath Choubey who inherited the properties. After two years of the death of Shiv Dutta Choubey, his son Bishwanath Choubey died issueless. So the entire interest of Shiv Dutta Choubey devolved on Jagarnath Choubey, the defendant No. 1. Kaushalya was not alive at the time of filing of the return and the plaintiff was only 10 years of age at the time of her mother's death. In this way, defendants denied that there is any unity of title or possession of the plaintiff over the suit property. The defendant Nos. 2 to 5 who are sons of defendant No. 1, by filing separate written statements supported the case of the defendant No. 1.
4. On the basis of the pleadings of the parties, the learned trial Court framed the following issues.
(1) Is the suit maintainable?
(2) Has the plaintiff any cause of action?
(3) Is the suit of the plaintiff barred by law of limitation, waiver acquiescence?
(4) Is the suit barred by the ouster and adverse possession?
(5) Is the suit bad on account of non-joinder of parties?
(6) Is there unity of title and unity of possession over the suit land?
(7) Whether the plaintiff is entitled to a decree for partition. If so, to what extent and in which property?
(8) Whether Aklu Choubey died in 1942 or 1940 and Kaushalya Kunwar mother of the plaintiff died in 1958 or 1944?
(9) To what other relief or reliefs the plaintiff is entitled?
5. The learned Court below decided the main issue No. 8 against the plaintiff and held that the plaintiff miserably failed to prove by leading positive evidence that her father Shiv Dutta died in the year 1942 and her mother Kaushalya died in 1958. According to the learned Court below, the burden of proof heavily lay on the plaintiff on the question of death of the two persons, Shiv Dutta Choubey and Kaushalya Kunwar and the plaintiff failed to discharge the burden. However, the learned trial Court further held that the evidence adduced by the defendants are also not worthy of credence, but since the plaintiff failed to discharge her burden, there is no necessity to discuss the evidence adduced by the defendants. On the basis of the finding of these issues, the learned trial Court dismissed the suit.
6. Mr. N.K. Prasad, learned senior Counsel appearing for the plaintiff appellant assailed the impugned judgment and decree of the learned trial Court as being illegal and contrary to the evidence on record. The learned Counsel submitted that there is no positive finding recorded by the Court below as to whether Aklu died in 1940 or 1942. Similarly, there is no positive finding recorded by the trial Court with regard to the actual death of death of Kaushalya Kunwar. Learned Counsel further submitted that the Court below committed serious error of law in so far as it held that there was no necessity of discussing the evidence adduced by the defendants on the question of the death of the two persons. Learned Counsel lastly submitted that when the issue was decided on the basis of the oral evidence, then the Court below ought to have considered the evidence adduced by both the parties. The learned Counsel then submitted that admittedly some of the properties are self- acquired properties of Shiv Dutta and Aklu Choubey, which is said to have been purchased in their joint names. According to the learned Counsel, therefore, atleast plaintiff acquired half share in the self-acquired properties left by Aklu Choubey, inasmuch as the properties left by Aklu shall be inherited by succession and not by survivorship.
7. On the other hand, Mr. L.K. Lal, learned Counsel for the defendant respondents supported the judgment by contending that the learned Court below rightly held that the burden of proof with regard to the death lies on the person who alleged it and the person miserably failed to prove that Aklu and Kaushalya died in 1942 and 1958 respectively. In support of that, learned Counsel relied on the decision in the case of Lalchand Marwari v. Mahant Ramrup Gir and Anr. AIR 1926 Privy Council page 9. The learned Counsel has drawn my attention to the oral evidence of the plaintiff-witness and submitted that the evidence adduced by the plaintiff itself falsifies the case of the plaintiff regarding the death of Aklu and Kaushalya Choubey.
8. It is not disputed by the learned Counsel for the parties that both the parties led oral evidence on the question of death of the aforesaid two persons. Admittedly, not a single documentary evidence has been produced by either of the parties in support of their case regarding the year of death of Aklu Choubey and Kaushalya Kunwar.
I have gone through the evidence adduced by the parties. The plaintiff examined herself as PW 1 and his deposed about the death of her parents. PW 2 is another witness aged 65 years, who also gave evidence regarding their death. PW 3 is aged 60 years. He has stated that Aklu Choubey died in the year 1942 and Kaushalya died in 1958. PW 4 is another witness aged 55 years. He gave his evidence on the death of these two persons. Similarly, PWs 5 to 7 and 9 to 11 are witnesses on the point of death of these two persons, Aklu and Kaushalya Kunwar.
9. On the other hand, the defendant examined EW 1, aged 60 years. He has deposited that Aklu died prior to 1945 and Kaushalya died prior to 1958. He has been cross-examined at length. In his cross-examination, he has stated that he has no personal knowledge about their death. DW 3 is defendant No. 2, aged 38 years; he has given evidence on the question of death. Similarly, DWs 4 to 9 have deposed on the point of death of Aklu and Kaushalya
10. From perusal of the evidences of the witnesses examined by both the parties, it appears that on the one hand, plaintiff tried to establish that Aklu and Kaushalya died in 1942 and 1958 respectively, while the defendants tried to establish that Aklu and Kaushalya died in 1940 and 1944 respectively. In view of the admitted position, I am of the opinion that the learned Court below has committed serious illegality in holding that there is no necessity of discussing the evidence of the defendants' witnesses. The learned Court below has not correctly appreciated the law with regard to the onus to prove and burden of the proof. For better appreciation, the relevant portion of the findings arrived at by the learned Court below in the judgment is quoted herein below:
...So I find that the plaintiff has also failed to prove that Kaushalya died in the year 1958 at village Banjari. The evidence adduced by the defendant does not require any discussion as the burden of proof to prove the death of the aforesaid two persons was upon the plaintiff and the plaintiff has failed to discharge the burden and so it is immaterial whether the defendants have been able to prove their averments made in the pleadings. However, I find that defendants have examined DW 1, 3, 4, 5, 6 and 8 out of whom DW 1 is purchaser of land from the defendant DW 3 is defendant himself. Against DW 4 plaintiff has deposed in one case DW 5 is also purchaser of land from the defendant and plaintiff has also deposed against him DW 6 is the. family chamar of the defendants family and DW 8 is one Ajodhya Nand Pandey. Against this witness DW no enmity has been brought on record by the plaintiff and he has said that wife of Aklu Choubey died in 1944 and Aklu had died before that. The evidence adduced by the defendant are also of no worthy of credence and as I have already stated that the plaintiff he failed to discharge her burden which was upon her then the plaintiff's case will fail if she fails to discharge her burden and the defendant could have called upon to prove his assertion if the plaintiff has succeeded in discharging her burden. So I held that Kaushalya Kunwar not died in the year 1958 and Aklu Choubey had not died in the year 1942 as alleged by the plaintiff. So this issue is decided against the plaintiff.
11. It is a well settled proposition of law that where both sides adduce evidence on a particular issue, then the question of onus of proof loses its importance and the Court is required to weigh the evidence adduced by the parties and not to decide the issue only on the question of burden of proof. Reference may be made to the decision of the Patna High Court in the case of Rangabati v. United Bank of India , and the decision of the Apex Court in the case of Parasnath v. Mohani Dasi AIR 1959 SC 1204.
Recently in the case of Lakhan Sao v. Dharamu Choudhary , the Apex Court has observed as under:
5. The findings are essentially findings of fact. If, however, the appellants succeeded in showing that in recording the findings of fact, the Court had proceeded on a wrong conception of law as to onus, the correctness of the findings has necessarily to be examined. The only point that has been stressed before us is that lower appellate Court has wrongly proceeded on the basis that onus shifted to the defendant to prove the passing of consideration and that the evidence did not establish that fact. It was maintained that the onus did not shift as the burden was entirely on the plaintiff to prove the fact that the document was inoperative and no consideration did pass there under. We have pointed out earlier that the High Court has set aside the earlier decree pointing out the error committed by the lower appellate Court. This observation made by the High Court has been kept in mind by the Additional District Judge in disposing of the appeal thereafter. The learned Judge has considered the question of burden on the plaintiff to establish that there had been no consideration. In examing the question whether the plaintiff had succeeded in proving the negative fact it was open to the Court to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could be left out. On a consideration of the whole evidence, the Court has concluded that there had passed consideration. This finding cannot, therefore, said to be vitiated.
6. It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into evidence, he cannot ask the Court not to look at and act on it. The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the Court has to come to a decision on a consideration of all materials.
12. In the light of the decisions referred to herein above, it is manifest that when both the parties led evidence on a particular issue, then the Court was obliged to discuss the evidence of both the parties and to weigh the evidence for coming to a final conclusion of that particular issue.
13. In the instant case, as noticed above, the learned trial Court has not at all discussed the evidence of the parties; rather, it came to a prima facie finding that the evidence adduced by the defendants are also not worthy of credence. In that circumstance, the trial Court should not have come to the finding that the plaintiff failed to prove her case. Moreover, the Court below has not gone through the question of the effect of inheritance if a person died leaving his self-acquired properties. Under these circumstances, the trial Court is required to go through all the evidence and to give a positive finding on the issues raised by the parties.
14. Having regard to the facts and circumstances of the case and the discussions made above, this appeal is allowed and the impugned judgment and decree is set aside and the matter is remitted back to the Court below for passing a fresh judgment on the basis of the evidence already on the record and in the light of the observations and discussions made above.