Patna High Court
Dip Narayan Rai And Ors vs Shri Mahadeo Gope And Ors on 29 August, 2019
Author: Sanjay Priya
Bench: Sanjay Priya
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.585 of 1994
(Against the judgment and decree dated 10 August 1994 and 25 th August
1994 respectively passed by Sub Judge 2 nd Patna in Title Partition Suit
no. 344 of 1986)
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1. Smt. Somaria Devi wife of Shri Bhagan Rai ( dead)
A1 (a) Dip Narain Rai S/o late Bhagan Rai
A1 (b) Shiv Nath Rai S/o late Bhagan Rai
A1 ( C) Lal Babu Rai S/o late Bhagan Rai
A1 (d) Bhushan Rai S/o Late Bhagan Rai
All R/o village Khaspur, P.S. Maner, , Dist. Patna and village
Changar, P.S Phulwari, Presently Kankarbagh, Dist. Patna
A1 (e) Deventi Devi D/o late Bhagan Rai and W/o Sri Jawahir Ray R/o
village Sahalichak P.S. Maner, District Patna.
A1(f) Lalo Devi d/o late Bhagan Rai and W/o sri Sarvesh Rai R/o village
Bela Jahare, P.S.Naubatpur, Dist. Patna.
A1(g) Muniya Devi D/o late Bhagan Rai and w/o Sri Srikant Rai resident
of village Sahalichak, P.S. Maner, Dist. Patna.
... ... Appellants
Versus
1. Shri Mahadeo Gope
2. Shri Rash Bihari Gope
3. Shri Hari Nandan Gope ( dead)
3(i) Munna Devi W/o late Hari Nandan Gope.
3(ii) Vipin Kumar S/o late Hari Nandan Gope.
3(iii) Ajay Kumar S/o late Hari Nandan Gope
All residents of village Mauzipur, P.O.+P.S. Fatuha Distt. Patna
3(iv) Lalti Devi D/o late Hari Nadan Gope and W/o Sri Jai Prakash
R/o village Mahamadpur, P.S. Kothiyan, P.S. Didarganj, Distt. Patna.
3(v) Chunni Devi D/o late Hari Nandan Gope and W/o Sri Chandan
Rai R/o Mohalla Patna City Humad Gali P.S. Begampur, P.S. Chowk,
Dist. Patna
3(vi) Manju Devi D/o late Hari Nandan Gope and W/o shri Ajay Rai
R/o village Athmal Gola , Bakhtiyarpur, P.S. Athmal Gola Dist. Patna.
3(vii) Phool Kumari D/o late Hari Nandan Gope and W/o shri Sanjo
Rai R/o village Athmal Gola Bakhtiyarpur P.S.Athmal Gola District
Patna.
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4. Mahendri Devi
5. Jhunki Devi
Both R/o village Mauzipur, P.S. and P.O Fatuah, District Patna and
village Changar, P.O. Kankarbagh, P.S. Phulwari at present
Kankarbagh,Dist. Patna.
(Defendants 1st party in the court below)..respondents 1st party)
6. Shri Janak Gope S/o late Ramphal Gope
7. Shri Chandradip Gope
8. Shri Laxmi Gope
9. Shri Girija Gope
10. Shri Moti Gope
11. Shri Mophil Gope
12. Shri Gopal Gope son of Chandradip Gope
All R/o village Changar P.S. and P.O. Kankarbagh Dist. Patna.
(Defendant 2nd party in the Court below).... respondent 2nd party.
13. Shankar Nagar Sahkari Grih Nirman samit Ltd. Patna through its
Honorary secretary shri Ram Pravesh Rai son of shri Ram Ashrey Rai,
resident of village Ashok Nagar, Road No.1, P.S.Kankarbagh District
Patna bearing registration no. 98 of 1984
14. Uma Sinha wife of Nirmal Kumar Singh of village Jaitpur, Hassanpur,
District Aurangabad at present village Changar, P.S. Kankarbagh,
Dist.Patna
15. Kamla Devi W/o Satyadeo Pd. of village Adla P.S. Naubatpur District
Patna at present village Changer , P.S. Kankarbagh District Patna.
16. Balmiki Singh son of Kedar Singh village Khoju Gachhi Shila, Nalanda
at present Mohalla Changar P.S. and P.O. Kankarbagh District Patna.
17. Dinesh Sharma son of Jagdeo Sharma R/o village Rai Dih, Gaya at
present village Changer, P.S. and P.O. Kankarbagh District Patna.
18. Asha Devi wife of Sita Ram Sharma of village Kathpura Gaya at present
residing warless operator, Kankarbagh, P.O. and P.S. Kankarbagh Dist.
Patna.
19. Kushmesh Sharma son of Raj Bahadur Singh of village Sakurabad Gaya
at present Changer, P.S. and P.O. Kankarbagh District Patna
20. Ramakant Sharma son of Mathura Sharma of village Kabli Gaya at
present Mohalla Changar , P.S.and P.O. Kankarbagh, District Patna.
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21. Shamdeo Sharma son of Umeshwar Sharma of village Hasanpur Gaya
P.S. Tekari District Gaya at present Changar, P.S. and P.O. Kankarbagh,
District Patna.
22. Raj Kishore Sharma son of Ram Yatan Singh R/o village Kurtha
Tekari Dist. Gaya at present Changar P.O. and P.S.Kankarbagh, Patna.
23. Manorama Devi W/o Sidheshwar Thakur of village Jagdav, Madhepur,
Madhubani at present Karanti, Medical Hall Kankarbagh, Patna at
present Mohalla Sorampur,P.S.Phulwari at present Kankarbagh, Dist.
Patna.
24. Shri Yadunandan Raut son of sri Shiv Shankar Raut R/o of village
Jogipur, P.S. Hilsa District Nalanda at present residing at Mohalla
Kankarbagh Rental flat no. 18, P.S. Kankarbagh, District Patna.
25. Sri Ram Bilash Pd. Son of sri Bakhori Raut, R/o village Saidanpure,
P.S.Hilsa, Distt. Nalanda at present residing at Mohalla MIG 166,
Hanuman Nagar P.S. Kankarbagh, Dist. Patna.
(Defendant 3rd party in the Court below)......Respondents 3rd party.
26. Shankar Kumar son of Bengali Singh
27. Nilu Devi W/o Shankar Kumar
Both R/o of village J/189, P.C. Colony, Kankarbagh City, P.S.
Kankarbagh, Patna.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Jitendra Kishore Verma, Mr. Anjani
Kumar with Mr. Abhishek Anand
For the Respondent/s : Mr.Rajendra Kumar Jain, Mr. Manish Kumar, Mr.
Madhu Prasun, Mr. Sanjay Kumar
Dubey, Mr. Dilip Kr. Jha and Mrs. Renu Kumari,
Advocates
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CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA
CAV JUDGMENT
Date : 29-08-2019
This First Appeal has been preferred against the judgment
and decree dated 10 August 1994 and 25 th August 1994
respectively, passed by Sub Judge 2nd, Patna, in Title Partition
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Suit no. 344 of 1986, by which the suit filed by the plaintiff has
been dismissed on contest with costs.
2. The case of the plaintiff-appellant is that the
plaintiff and the defendants 2nd party are the descendants of one
Ramphal Gope. Ramphal Gope had four sons, namely, Gulab
Gope, Sampat Gope, Nirpat Gope and Janak Gope( Defendant
no.7). Most Basmatiya Devi was the wife of Gulab Gope.
Punwa Devi, Sheokuri Devi and Somaria Devi (plaintiffs) were
daughters of Sampat Gope. Punwa Devi was married to Ram
Sevak Gope. Defendant nos. 2 to 4 are the sons of Punwa Devi.
The plaintiff Somaria Devi had been married with Bhagat Gope.
The plaintiff has got four sons and three daughters. The
defendant nos. 8 to 12 are sons of Janak Gope ( defendant
no.7). Gopal Gope Defendant no.13 is son of Defendant
no.8,Ramphal Gope. Ramphal Gope had a brother, named
Raghunath Gope. Marni Devi was widow of Raghunath Gope.
Ramphal Gope and his four sons were member of joint family.
They were in joint possession of the family properties fully
described in schedule 1 of the plaint. Gulab Gope son of
Ramphal Gope died about 52-53 years ago in the state of
jointness leaving behind his widow Most. Basmatiya.
Thereafter, his brother Nirpat Gope expired issueless about
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40-50 years ago in the state of jointness. Then, Ramphal Gope
and his two sons, namely, Sampat Gope and Janak Gope
( defendant no.7) came in joint possession of the entire joint
family property by survivorship. In course of time out of
aforesaid property certain properties were sold. Some of the
family properties were acquired by Land Acquisition
Department which is detailed in schedule II lot no. 2 of the
plaint. Further aforesaid Sampat Gope and Janak Gope sons of
Ramphal Gope remained in possession of the properties fully
described in schedule III of the plaint. Thereafter, Sampat Gope
died sometime about 1941-42 in the state of jointness leaving
behind his widow Gharbharni Kuer. Gharbharni Kuer came in
possession with her daughter, namely, Punwa Devi, Somaria
Devi ( plaintiff) and Sheokuri Devi and nearest legal heir of
Sampat Gope. Sheokuri Devi expired and thereafter Ramphal
Gope also died in 1951 in the state of jointness leaving behind
his daughter- in -law Gharbharni Devi and two daughters
namely Punwa Devi and Somaria Devi (plaintiff) and his son
Janak Gope ( defendant no.7) and sons of Janak Gope
( defendant nos. 8 to 12). Thus Gharbharni Kuer and defendant
2nd party ( defendant nos. 7 to 13) came in possession of the
entire joint family properties described in schedule III of the
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plaint. Gharbharni Kuer also expired on 17.09.1962 leaving
behind her two daughters, namely, Punwa and Somaria Devi
( plaintiff) who inherited the properties of Gharbharni Kuer and,
thus, they came in possession of the joint family properties
along with defendant 2nd party.
3. The plaintiff learnt on 15.10.1986 from one Tek
Narain Singh son of Late Bachchu Singh of village Changar,
Kekar Bigha, Dist- Patna, that Punwa had filed Title Suit No.
1191 of 1962 in the Court of Sub Judge-II, Patna for partition
of joint family properties against defendant 2nd party ( defendant
nos. 7 to 13) and Most Basmatia Devi widow of Gulab Gope
and it was transferred to the Court of Additional Sub Judge,
Patna, and the suit was numbered as T.S. No. 119 of 1962/2 of
1965. That suit was decreed and thereafter there was First
Appeal No. 278 of 1965 from preliminary decree before the
Hon'ble High Court by defendant 2 nd party which was
dismissed and by appointment of Survey knowing Advocate
Commissioner Separate Takhta of the land had been allotted and
delivery of possession had also been effected on the land
allotted to the Punwa Devi by partition in Execution Case No.
01 of 1985 by the Court of Additional Sub Judge-V, Patna.
Further, it has been stated that the plaintiff came to learn that
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Punwa Devi had concealed the existence of the plaintiff with
dishonest intention to have illegal gain. Thereafter, the plaintiff
got enquired through her husband Bhagan Ram about the
aforesaid suit and got the same inspected on 01.11.1986 and
then came to learn about the dishonest and fraudulent act of
Punwa Devi. Further, the plaintiff came to know that Punwa
Devi had earlier filed suit in the Court of Sub Judge- II, Patna,
for partition of joint family property alleging that she was the
only daughter of Gharbharni Devi. The witness of Punwa Devi
had admitted in evidence that the plaintiff was also the daughter
of Gharbharni Devi but, even then she did not implead the
plaintiff as party to that suit. That suit was decreed by judgment
dated 14.07.1965 and preliminary decree for partition was
prepared and thereafter the defendant 2 nd party filed F.A. No.
278 of 1965 which was dismissed. Punwa Devi the plaintiff of
Title Suit No. 119 of 1962 filed petition for appointment of
Advocate Commissioner which was allowed and Takhta was
carved out and the properties fully described in Schedule IV of
the plaint was allotted to the plaintiff of that suit by partition
which she deemed to have taken representing the branch of
Sampat Gope. The present plaintiff got inspected the Execution
case no. 1 of 1965 of the Court of Additional Sub Judge V,
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Patna, on 10.11.1986. Thus, from the above facts, it is quite
clear that the plaintiff has got eight anna share in the property
fully described in schedule -IV of the plaint as possession of one
of the co-sharer is possession of all co-sharers. Punwa Devi
expired in 1976 and the defendant nos. 1 to 6 were her heirs.
The plaint depicts that defendant no.1 Ram Sewak Gope
husband of Punwa Devi also expired during pendency of the
suit. Further case of the plaintiff is that defendant 1 st party are
co-sharer of the plaintiff and they got unity of title and
possession over schedule IV property in which plaintiff has got
half share. Defendants 1st party, in spite of repeated demand,
did not agree to give due share to the plaintiff on partition,
hence this suit was filed.
4. Further case of the plaintiff is that defendant 1st
party have executed fraudulent sale deed in favour of defendant
3rd party (defendant nos. 14 to 26) in respect of a portion of the
suit land and hence the purchaser has been impleaded as party.
Punwa Devi, during her life time and after her death, her sons
and husband sold some portion of the suit land to defendant
nos. 14 to 26 and purchasers have dispossessed the plaintiff
from the portion of the suit land in the month of January, 1987
after rejection of the petition for injunction of the plaintiff, and,
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hence the possession of the purchaser over portion of the suit
land is illegal and that of trespasser.
5. The cause of action for the suit arose on various
dates when the plaintiffs made demand for partition and lastly
on 04.11.1986 when last demand was made by the plaintiff and
it was refused by the defendants 1st party and also in January
1987 when the plaintiff was dispossessed from the portion of
the suit land..
6. Defendant no.1 Ram Sevak Gope expired
during pendency of the suit. Defendant nos. 2 and 6 have filed
separate written statement. Defendant no.14 has filed separate
written statement. Defendant nos. 25 and 26 have also filed
separate written statement. Defendant 2nd set i.e. defendant nos.
7 to 13 did not appear. They did not file written statement.
Defendant nos. 15 to 24 also did not appear to contest the suit.
Hence, the suit was heard and decided ex parte against the
absentee defendants.
7. The case of defendant nos. 2 to 6 is that the suit
is not maintainable. The suit has been filed for declaration of
title and recovery of possession in the garb of Partition Suit.
The Genealogy table given at the foot of the plaint is not
correct. The contention of the plaintiff that Sampat Gope had
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three daughters, namely, Punwa Devi, Somaria Devi (plaintiff)
and Sheokuri Devi is wrong. In fact, Punwa Devi had two
sisters, named Somaria Devi (plaintiff) and Sheokuri Devi. The
plaintiff (Somaria) and Sheokuri Devi have absolutely no
concern with the family of Sampat Gope. They are stranger to
this family. Sheokuri Devi died issueless. The plaintiff and
Sheokuri Devi are the daughters of one Deolal Bhagat of village
Changar from his first wife. As he had no son from his first
wife, he remarried himself to his second wife from whom also
he had only a daughter. Further it has been stated that Punwa
Devi had earlier filed Title Partition Suit no. 119 of 1962 against
Janak Gope and his sons (defendants 2nd set). She claimed half
interest in the property.
8. Janak Gope and his son appeared in that suit and
filed written statement. Their defence was that Sampat Gope
was not son of Ramphal Gope and Punwa Devi was not the
daughter of Sampat Gope. That suit was contested and decreed
on 14.07.1965 in the court of Additional Sub Judge, Patna. First
Appeal No. 278 of 1965 was filed by Janak Gope and others in
Hon'ble High Court against that decree which, ultimately, was
dismissed on 08.07.1977. Their prayer for leave to go to
Hon'ble Apex Court was also rejected. During this entire
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period between 1962 till filing of this suit in 1986, the plaintiff
nowhere appeared at any stage of the suit to say that she had
also got interest in the property. This fact shows that the plaintiff
is not the real share holder. Defendant nos. 7 to 12 ( defendant
2nd set) who lost that suit after hot contest became inimical to
Most. Punwa Devi. Therefore, they have set up present plaintiff
and are fighting this suit for her. The plaintiff is in collusion
with them and she has been setup by them. After partition
decree the separate Takhta Bandi had been done. The plaintiff
had never been in possession over the suit land. Further, it has
been stated that the plaintiff has neither any title nor possession
over any portion of the suit land and her claim for partition is
false. Further, it has been stated that the contention of the
plaintiff that she and Sheokuri are daughters of Sampat Gope
and sister of Punwa Devi is false. The contention of the plaintiff
that Ramphal Gope had four sons and they were members of
joint family has been admitted. The contention of joint
possession of Ramphal Gope, Sampat Gope and Janak Gope has
not been denied. It has been stated further that Somaria and
Sheokuri never came in possession of the property of
Gharbharni Devi. It has been denied that the plaintiff is
granddaughter of Ramphal Gope.
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9. The plaintiff has given false and concocted story
about knowledge of previous suit. The plaintiff did not know
about the previous suit because she had no concern with the
family. The delivery of possession of the suit property has been
made to Punwa Devi in Execution case no. 1 of 1985 which is
admitted fact in the case. It has been further stated in the
written statement that plaintiff cannot take advantage of any
statement of any witness in the previous suit as these defendants
(defendant nos. 2 to 6) are not bound by the said statement. The
contention of the plaintiff of 8 annas share in the Schedule IV
property has also been denied as she has got no interest in the
suit property as the suit land is exclusive property of defendant
1st set. There is no denial of death of Punwa Devi in 1976. The
plaintiff is not co sharer of defendants. The question of joint
possession does not arise.
10. After disposal of some lands by the defendant
3rd set which is admitted the purchaser had been delivered
possession. It has lastly been stated in the written statement that
any statement made by defendant 2nd set may not be used
against these defendants. About Tek Narayan, it has been stated
that he is a litigant of that area. He is also behind the litigation
in this case for unlawful gain. It has lastly been contended in
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the written statement that plaintiff has got no cause of action
for the suit. She is not entitled to any relief. The suit is fit to be
dismissed with cost.
11. Defendant no.14. Shankar Nagar Sahkari Grih
Nirman Samiti Limited ( Patna) has filed separate written
statement. This defendant has stated that plaintiff got no cause
of action for the suit. Practically, the defendant has also
supported the contention of defendant nos. 2 to 6. This
defendant has also stated that Sampat Gope had only one
daughter, named, Punwa Devi mother of defendant nos. 2 to 6,
Sampat Gope had died in 1942-43 leaving behind his widow
Gharbharni Devi and only daughter Punwa Devi. Somaria Devi
(plaintiff) and Sheokuri Devi are not the daughters of Sampat
Gope. They are stranger to the family as they are daughters of
Devlal Bhagat @ Devlal Rai. Dev Lal Bhagat has no son from
his first wife . Therefore he remarried and from his second wife
also he had only daughter, namely, Ramia Devi. It has further
been stated in the written statement that Punwa Devi had filed
Title Partition suit no. 119 of 1962/ 2 of 1965 against Janak and
his sons.
12. Thus, the defendants have practically adopted
the contention of defendant nos. 2 to 6.
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13. It has further been submitted by the defendant
that Janak Gope got a deed of Will manufactured alleged to
have been executed by Devlal Rai and his wife Dhanpatia Devi
in favour of their daughter Ramia Devi on 06.07.1977 with
ulterior motive to harass Punwa Devi. In fact, Dev Lal Rai was
in collusion of Janak Gope and therefore, such document has
been manufactured. Janak Gope filed SLP No. 130 of 1977 in
the Hon'ble High Court for leave to appeal to the Hon'ble
Supreme Court against the order passed against him in First
Appeal no. 278 of 1965 but, that prayer was refused by the
Hon'ble High Court. This defendant is bonafide purchaser from
defendant 1st set . This defendant purchased 16 kathas of land
from defendant 1st set by sale deed dated 01.03.1985 and got
possession also. The possession was confirmed on 21.09.1986
when Advocate Commissioner has effected the delivery of
possession over 1.31 acres of land in purchased plot no. 42 to
the defendant 1st set. This defendant fixed pillars on 21.09.1986
and came in physical possession over the same day. Janak Gope
and his sons filed several proceedings U/s 144 Cr.P.C. against
defendant 1st set and this defendant and other lost in all
proceedings U/s 144 Cr P.C. Therefore, Janak Gope got this suit
filed with ulterior motive.
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14. The plaintiff was never in possession of the suit
land. This defendant has further purchased 6 kathas of land
adjoining to the aforesaid land by sale deed dated 14.12.1986.
The defendant 1st set transferred 20 ft wide road which was
beneath the high tension of electric wire. This defendant carved
out road and developed it and allotted sub plot also to its
members for construction of residential house. Some of the
members have constructed house also and are residing over the
same. Defendant 1st set disposed of the remaining area of plot
no. 42 to other and purchasers have constructed their houses
and are residing therein. The entire contention regarding
relationship of plaintiff with Punwa Devi has been denied.
15. The defendant nos. 25 and 26 have also filed
separate written statement that they are also purchasers. They
have practically supported the contention of defendant 1st set
and defendant no.14. They had right over the suit land
dependent on the right of the defendant 1st set. They have also
prayed for dismissal of the suit in the Court below.
16. On the basis of the pleadings of the parties total
9 issues have been framed by the Court below and the main
issues are issue nos. 6, 7 and 8 which have been quoted below
"6. Is the plaintiff daughter of Sampat Bhagat ?
7. Is the plaintiff entitled to a decree for recovery of
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possession?
8. Is the plaintiff entitled to a decree for partition and if
so, to what share she is entitled for in Schedule IV
properties?"
17. The court below has discussed these issues
together in paragraph no. 17 of the impugned judgment.
18. The plaintiff has contended that she is also
daughter of Sampat Bhagat and Punwa Devi was her full sister.
Therefore, the schedule -IV properties which Punwa Devi got
in her share in Title Partition Suit no. 119 of 1962 /2/1965 was
joint property of the plaintiff and Punwa Devi (since deceased).
Hence, the plaintiff is entitled to half share in that property. This
suit has been filed for partition of the plaintiff's 8 anna share in
the Schedule IV properties detailed in the plaint. It has been
contended on behalf of the contesting defendant Nos. 2 to 6 that
Punwa Devi was their mother and she was only daughter and
heir of Sampat Bhagat. Gharbharni Devi was wife of Sampat
Bhagat. Janak Gope Defendant no.7 did not want to give share
of Sampat Bhagat who was his full brother to Punwa after
death of her father Sampat Bhagat and, therefore, Punwa Devi
had filed Title suit no. 119/62/2/65. The suit was decreed in her
favour and she got delivery of possession. The present plaintiff
is not the daughter of Sampat Bhagat and full sister of Punwa
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Devi. She is not entitled to any share detailed in schedule IV
properties which Punwa Devi had got in the previous suit by
virtue of judgment and decree passed in his favour in Title Suit
no. 119/62/2/65.
19. The defendant 1st set had denied the genealogy
given in the plaint regarding plaintiff and Sheokuri Devi are not
the daughter of Sampat Gope. The positive case of defendant 1 st
set is that both (plaintiff and Sheokuri Devi) are daughter of one
Deolal and only Punwa Devi was daughter of Sampat Gope.
Sheokuri expired issueless.
20. Therefore, the only point for consideration
before the Court below was whether Somaria Devi plaintiff is
daughter of Sampat Gope or not?
21. It has been argued on behalf of the defendant
1st set that onus was on the part of the plaintiff-appellant to
establish that she is daughter of Sampat Gope since she claims
partition in the ancestral family property and recovery of
possession on the basis of inheritance .
22. To prove her case that plaintiff is daughter of
Sampat Bhagat and full sister of Punwa has relied on certain
documents as well as oral evidence. Ext-1 is affidavit dated
15.12.1986sworn by one Nanhki Devi Dagrine (since deceased) Patna High Court FA No.585 of 1994 dt. 29-08-2019 18/35 of village Changar who claimed to have attended the delivery of the plaintiff.
23. The Court below has mentioned in the impugned judgment that this evidence was brought in existence on 15.12.1986 i.e. after filing of the suit. Learned counsel for the contesting defendants-respondents has submitted that the document was procured during pendency of the suit and therefore it has got no value. In support of such argument, the counsel has relied on judgment reported in AIR 1983 SC 684 State of Bihar & ors. Vrs. Radha Krishna Singh and others).
24. The plaintiffs have also filed Ext. 2 which is registered Will dated 6.9.1977 said to be executed by one Deolal and his wife Dhanpati Devi to their daughter Ramia Devi . PW-7 is son of Ramia Devi. He has stated that his Nana Dev Lal had only one daughter, namely Ramia Devi.
25. Learned counsel for the plaintiff-appellant has submitted that defendant has taken plea that plaintiff is daughter of one Deo Lal but, Ext. 2 is of the year 1977 i.e. much before institution of the suit. Ext. 2 shows that Deo Lal had only one daughter, namely Ramia Devi and, therefore the contention of the contesting defendants that Somaria Devi Patna High Court FA No.585 of 1994 dt. 29-08-2019 19/35 ( plaintiff) is daughter of Deo Lal fails. Hence, no third case can be made out and the court is bound to accept either of the two versions. Learned counsel for the plaintiff- appellant further submits that recitals of Ext. 2 clearly shows that Deo Lal and his wife Dhanpati Devi had only one daughter.
26. It was submitted on behalf of the contesting defendants that there is nothing in Ext. 2 to show that Deo Lal had not married earlier also. Ramia Devi did not appear to give evidence. But, her son Bhagwan Prasad has appeared as PW-
7. He has stated in para 2 that his Nana had only one marriage with Dhanpati and his mother Ramia Devi was only daughter of his Nana and Nani. Learned counsel for the contesting defendants has further drawn attention of this Court towards para 20 of PW-7. This witness has stated in para 20 that his mother asked him to tell that her father had only one marriage. PW-7 in para 22 has stated that he had not enquired about marriage of his Nana. This witness has specifically stated in para 34 of his evidence that he had no personal knowledge about his Nana. There is specific averment in Ext. 2 that Ramia Devi was issue of Deo Lal from his wife Dhanpati. It has further been submitted on behalf of the contesting defendants- respondents that onus is on the plaintiff- appellant first to Patna High Court FA No.585 of 1994 dt. 29-08-2019 20/35 establish that she was daughter of Sampat Gope. The plaintiff cannot succeed, even if, the contention of the contesting defendants fail that the plaintiff is daughter of one Deo Lal from his second wife.
27. Learned counsel for the plaintiff-appellant has strongly relied on Ext. 3 of T. S. no. 119/62/2/65. Ext. 3 is deposition of PW-18 Ram Sunder Ram (now dead). This witness had deposed on 28.06.1965 in T.S. no. 119/62/2/65 on behalf of Punwa Devi who was the plaintiff in that suit. It is mentioned in the impugned judgment that this witness had stated in his examination-in-chief that Sampat Gope had expired leaving behind his wife Gharbharni and daughter Punwa Devi. Gharbharni Devi also expired and her daughter was joint with Janak. In cross- examination, in para 11, this witness had said that Punwa Devi was three sisters. The youngest expired. Punwa and Somaria was alive. This witness has stated that Somaria Devi and Sheokuri were daughters of Sampat Gope but, he know only one daughter.
28. The counsel has submitted that the Court below has not relied on the deposition of aforesaid PW-18 Ram Sudar Ram of T. S. No. 119/62/2/65.
29. As per evidence of PW-18 in para 11 he gave Patna High Court FA No.585 of 1994 dt. 29-08-2019 21/35 his evidence on the basis of one Fauti Bahi which was not produced in the Court. He had deposed on the basis of his knowledge derived from his father.
30. The learned counsel for the defendants-
respondents submitted that aforesaid witness PW-18 did not depose truly. The court below did not accept his evidence in T. S no. 119/62/2/65 otherwise the suit would have been dismissed for non-joinder of necessary parties.
31. Learned counsel for the defendants further submits that in that suit defendant was own uncle of Punwa Devi. Therefore, the plea of non-joinder of necessary party would have definitely been taken by Janak in that suit.
32. The plaintiff has appeared to depose as PW-9. She has supported her case in examination- in- chief. She has stated that she learnt about previous suit between Punwa Devi and Janak from Tek Narain about seven years ago and then she made enquiry and filed the instant suit.
33. This court finds from judgment of Court below that court has given finding in the impugned judgment that "it appears surprising that if the plaintiff is sister of Punwa Devi and then also she could not know about litigation between her own sister Punwa Devi with her uncle Janak, although the suit Patna High Court FA No.585 of 1994 dt. 29-08-2019 22/35 was filed in 1962 i.e. T.S. 119/62/2/1965".
34. The plaintiff has filed the instant suit in the year 1986. Tek Narain has not been examined in the Court below during trial of the suit. The plaintiff has stated in para 16 of her deposition that she cannot say whether mess of Janak and his brothers were joint or separate. PW-9 could not name the Pandit and Hajaam of her marriage. She has further stated in para 17 of her evidence that she used to come to Naihar after six month or one year. She could not say when her mother expired. She had not come after death of her mother. She has stated in para 19 of her evidence that she had no dispute with Punwa Devi or Sheokuri Devi. She has further stated that she had no relation with son of Punwa. She could not say as to when Sheokuri expired. She could not even give the details of the land . She has further stated in para 22 of her deposition that she came to learn about previous litigation only six years ago. In same paragraph she has stated that she did not know from whom Punwa was fighting. Lastly, she has stated in the aforesaid paragraph that she did not know whether Punwa was fighting with Janak or not. She has stated in para 24 that she could not say whether Sheokuri was married before her marriage or after her marriage. She has stated in para 28 of her Patna High Court FA No.585 of 1994 dt. 29-08-2019 23/35 deposition that Tek Narain had told about previous suit to her son Bhushan and after that, after three months, she came to Court and perused the record. She has deposed in para 31 that she could not say as to when Gharbharni expired. The court below on the basis of the aforesaid evidence of the plaintiff PW- 9 has observed "that from her entire evidence it is clear that this witness who is plaintiff of suit has given unbelievable and unreliable evidence. From her evidence alone her case is bound to fail".
35. Defendants have also adduced evidence.
Mahadeo Gope defendant no.2 has been examined as DW-7. This witness is hearsay witness regarding first marriage of Deo Lal. No document has been produced on behalf of the defendant to show that Somaria Devi, the plaintiff, is daughter of Deo Lal.
36. The counsel for the appellant has argued on the basis of aforesaid deposition that main question emerges for consideration is as to whether the previous partition suit bearing T. S.No. 119 of 1962 filed by Punwa Devi daughter of Sampat Gope and full sister of present plaintiff Somaria Devi without impleading her sister Somaria Devi can bind Somaria Devi or operate as estopple/res judicata against her to preclude her from Patna High Court FA No.585 of 1994 dt. 29-08-2019 24/35 filing the present suit for partition claiming half share in the properties secured by Punwa Devi in the earlier suit filed against the branch of Janak Gope in Title Suit no. 119 of 1962 .Learned counsel for the plaintiff- appellant has submitted that since Somaria Devi was not made party in the previous suit, and as such, there is no question of res-judicata operating against her. The counsel for the plaintiff-appellant further submits that there is no such issue framed as to whether Sampat Gope had only one daughter, namely, Punwa Devi or three daughters including the present plaintiff Somaria Devi. This issue has neither been raised by Punwa Devi (the plaintiff of earlier suit being Title Suit no 119 of 1962) nor by the branch of Janak Gope.
37. Reliance has been made on behalf of learned counsel for plaintiff-appellant in a judgment reported in 2015(4) PLJR 362 (SC)( The City Municipal council Bhalki by its Chief Officer vs. Gurappa (D) by LRs & Anr). Learned counsel for the plaintiff-appellant further submits that in view of the decision reported in AIR 1976 SC 1569 (SYED MOHD. SALIE LABBAI (DEAD) BY L.Rs. and OTHERS vs. MOHD. HANIFA (DEAD) BY L.Rs. and OTHERS ) and AIR 2000 SC 1238 (Sajjadanashin Sayed Md. B.E. Edr.(D) by L.Rs., v. Patna High Court FA No.585 of 1994 dt. 29-08-2019 25/35 Musa Dadabhai Ummer and others ) in absence of pleadings of previous suit, res-judicata cannot be applied. Learned counsel for the plaintiff-appellant further submits that in the instant suit the specific case of the plaintiff Somaria Devi is that her full sister Punwa Devi secured a partition decree in previous suit vide Title Suit no. 119 of 1962 by suppressing the fact that Punwa Devi had two more full sisters Somaria Devi (plaintiff) and Sheokuri Devi @ Shiroia Devi who had died earlier. The decisions in earlier partition suit and its appeal cannot operate as res-judicata as fraud vitiates every decisions either of inferior court or of superior court or of even Hon'ble Apex Court as there was no question of invoking or applying the doctrine of res judicata when the judgment has been obtained by playing fraud or suppression before the Court is a nullity and non est in the eye of law and does not operate as res judicata . Similarly, learned counsel for the plaintiff-appellant has submitted that whether the plaintiff had knowledge of the previous suit or not was required to be pleaded by the defendants as the plaintiff having pleaded and deposed regarding absence of knowledge the onus of proof was on the defendants to prove previous knowledge of the suit to the plaintiff and the plaintiff cannot be expected to prove the negative and defendants failed to Patna High Court FA No.585 of 1994 dt. 29-08-2019 26/35 discharge their burden of proof in this regard. Learned counsel for the plaintiff-appellant has further submitted that in view of the fraud and suppression of fact pleaded in the earlier suit the question of limitation does not come into play so long as the fraud is not discovered in view of section 17 of the Limitation Act. The possession of Punwa Devi or her successors will be as a co-sharer for the benefit of the branch of Somaria Devi and her heirs representing their interest also and there is no question of limitation etc.
38. Learned counsel for the plaintiff-appellant further submits that law of pleadings is settled that if the defendants had simply denied the parentage of Somaria Devi the matter would have been different but they came out with a positive case that Somaria Devi is daughter of Deo Lal Rai. The learned counsel for the plaintiff-appellant has further submitted that in view of Mogha's Law of Pleadings in India Seventeenth Edition page 308 from the discussions under the heading setting up affirmative case it is clear that if the plaintiff fail to prove that Somaria Devi is not the daughter of Deo Lal Rai still the plaintiff can succeed with less strong evidence of the plaintiff as the burden in case of affirmative defence gets shared. The plaintiff can succeed if she proves Patna High Court FA No.585 of 1994 dt. 29-08-2019 27/35 herself to be daughter of Sampat Gope or sister of Punwa Devi. She can equally succeed if defendants fails to prove their defence that she is daughter of Deo Lal Rai as there is no third case on which the Court can rely so as to make Somaria Devi daughter of somebody else. She has to be found either to be daughter of Sampat Gope or Deo Lal Rai. There is no third case on the record.
39.The court below has mentioned in the impugned judgment at page 22 that no document has been produced on behalf of the defendant to show that Somaria Devi is daughter of Deo Lal Rai. Even no reliable evidence oral or documentary has been relied in this respect.
40. Learned counsel for the plaintiff-appellant submits that in view of the statement of Deo Lal Rai and Dhanpati Devi in 1977 in their registered Will that they have only one daughter namely Ramia Devi the defence of present defendants that Somaria Devi is daughter of Deo Lal Rai becomes false leaving only one option which lead to the conclusion that Somaria Devi is daughter of Sampat Gope. Ext. 2 is the statement of the alleged father and mother who are now dead and as such their statement is very much material and relevant and has been made prior to litigation in a Patna High Court FA No.585 of 1994 dt. 29-08-2019 28/35 registered instruments and is admissible in terms of section 32 sub clause (5)(6) and (7) of the Indian Evidence Act.
41. Learned counsel for the defendants-respondents have contented in reply to the submission advanced on behalf of the plaintiff-appellant that with regard to the same properties which are the subject matter of the present F.A. No. 585 of 1994, Punwa Devi ( mother of respondent nos. 1 to 3 in F.A. No. 585 of 1994) had filed Title Suit being Title suit no. 119 of 1962 in the court of sub Judge, 2 nd Patna for partition of joint family properties against Janak Gope and his descendants and one Most Basmatia claiming that she was the only daughter of Gharbharni Devi. The said suit was decreed in favour of Punwa Devi on 14.07.1965. Janak Gope and his Branch preferred appeal being Appeal from original Decree No. 278 of 1965 before this Hon'ble Court being aggrieved by the aforesaid judgment and decree dated 14.7.1965 which by order dated 08.07.1977 was dismissed with costs. Janak Gope and another filed an application for leave to appeal before the Hon'ble Supreme Court being SC Appeal no. 130 of 1977 against the order dated 08.07.1977 of this Hon'ble Court which was also dismissed by order dated 17.5.1979.
42. Thereafter, the delivery of possession of Patna High Court FA No.585 of 1994 dt. 29-08-2019 29/35 schedule property was effected in Execution case no. 01of 1985 wherein the Advocate Commissioner was appointed who submitted his report on 05.11.1984 and the same has been affirmed by the 5th Addl. Sub Judge, Patna vide order dated 06.07.1985.
43. Janak Gope and others have preferred First Appeal no. 28 of 1986 before this Hon'ble Court against the order dated 06.07.1985 passed by 5th Addl. Sub Judge Patna which has been dismissed vide order dated 08.04.2010 by this Hon'ble Court with observation that " the impugned order/judgment and final decree cannot be interfered with in this first appeal". After the aforesaid order dated 08.04.2010 passed in F.A. No. 28 of 1986, the partition and allotment of shares to the present respondent nos. 1 to 3 has become absolute. There is no any appeal pending against the aforesaid order dated 08.04.2010. The present appellant has for the first time in the years 1986 filed Title Partition Suit no. 344 of 1986 claiming herself to be sister of Punwa Devi after 24 years of filing Title Partition suit by the said Punwa Devi. In the earlier suit, although being of the same genealogy, Janak Gope never raised question of non-joinder of necessary party. The plaintiff- appellant has been projected as sister of Punwa Devi in a Patna High Court FA No.585 of 1994 dt. 29-08-2019 30/35 forged manner after 24 years at the instance of Janak Gope and others after their defeat from all corners for illegal gains and for multiplicity of litigation.
44. This court, after hearing submission of both the parties in detail and looking into the evidence adduced by the plaintiff and the defendants, finds that the plaintiff did not produce any reliable evidence in the court below to substantiate that she is daughter of Sampat Gope. The court below has mentioned in the impugned judgment that from entire evidence of plaintiff (PW-9) herself the entire case of the plaintiff gets falsified. She has stated in her evidence in para 17 that she could not name the Pandit and Hajaam of her marriage. In the same para she has stated that she used to come to her naiher after six months or one year. She could not say when her mother expired. She had not come after death of her mother. She said that after five or six years she used to come to her Naihar after death of her mother. She has stated in para 19 that she had no relation with son of Punwa. She could not say as to when Sheokuri expired. She could not give details of the land. She has stated in para 22 of her evidence that she came to learn about previous litigation only six years ago. She has further stated in the aforesaid paragraph that she did not know from Patna High Court FA No.585 of 1994 dt. 29-08-2019 31/35 whom Punwa was fighting. Lastly, she has deposed in this para that she did not know whether Punwa was fighting with Janak or not. In paragraph no. 24 she has said that she could not say whether Sheokuri was married before her marriage or after her marriage. In para 28 she has stated that Tek Narain had told about previous suit to her son Bhushan and after that after three months she came to court and perused the record. She could not say as to when Gharbharni expired as per para 31 of her deposition.
45. This court finds on the basis of such evidence of plaintiff that court has rightly disbelieved her evidence and came to the finding that the plaintiff of the suit has given unbelievable and unreliable evidence. From her own evidence her case is bound to fail.
46. This court further finds that Certified copy of the deposition of PW-18 Ram Sundar Ram ( now dead) (Ext.3) in earlier T.S no. 119 of 1962/ 2/65 filed on behalf of Punwa Devi is not of any relevance to the plaintiff in the instant suit. From perusal of Ext. 3, it appears that in examination-in- chief he had said that Sampat Gope had expired leaving behind his wife Gharbharni and daughter Punwa Devi. Further, he had stated that Gharbharni Devi also expired and her daughter was Patna High Court FA No.585 of 1994 dt. 29-08-2019 32/35 joint with Janak. In cross- examination in para 11 this witness had stated that Punwa Devi was three sisters. The youngest expired. Punwa and Somaria were alive.
47. The evidence of any witness is to be read as a whole. The evidence of witness is reliable only when his evidence in examination- in -chief and in cross- examination are consistent. From perusal of Ext. 3, it appears that aforesaid witness (PW18) has given inconsistent evidence in his cross- examination vis-a-vis evidence adduced by him in the examination- in- chief. In the examination - in- chief, he has stated that Sampat Gope had expired leaving behind his wife Gharbharni Devi and daughter Punwa Devi but, in cross- examination he has stated that Punwa Devi was three sisters.
48. Therefore, the Court below was right in disbelieving the aforesaid evidence given by PW-18 with respect to the pleading of the plaintiff that Somaria lives with her sister Punwa.
49. It further appears that Punwa Devi had earlier filed Title Suit No. 119/62 /2 /65 against her uncle Janak Gope. In that suit Janak Gope would have surely taken objection that suit is bad for non- joinder of necessary party in the event Somaria Devi was own sister of Punwa Devi. Similarly, Patna High Court FA No.585 of 1994 dt. 29-08-2019 33/35 Somaria at no stage of trial of suit appeared to contest the suit.
50. The contention of the counsel for the plaintiff- appellant is that non proving of the pleading by the defendant that Somaria was daughter of Dev Lal will only point out that Somaria was daughter of Sampat Gope as pleaded by the plaintiff. Learned counsel for the appellant has further submitted that there cannot be a third case since Somaria could either be daughter of Sampat Gope or daughter of Dev Lal Rai as contented by the plaintiff in the pleading. This Court does not agree with such submission of the counsel for the appellant.
51. It is well- settled principle of law that plaintiff has to stand on her own leg to prove her case as pleaded in the plaint. The plaintiff cannot get any benefit on account of non- proving of the pleading raised by the defendant in the written statement
52. It was specific case of the plaintiff in the plaint that plaintiff is daughter of Sampat Gope and own sister of Punwa Devi. The plaintiff has failed to prove the aforesaid pleading by cogent evidence as discussed above.
53. In such circumstances, the plaintiff cannot take advantage of non- proving of the pleading made by the Patna High Court FA No.585 of 1994 dt. 29-08-2019 34/35 defendant in the written statement that Somaria was daughter of Dev Lal Rai and, as a default, it will be assumed that plaintiff is daughter of Sampat Gope and own sister of Punwa Devi. Non- proving of the pleading by the defendant as raised in the written statement will not give any benefit to the plaintiff to pass decree in her favour. The plaintiff has to prove her case by producing cogent and reliable evidence as onus was on the plaintiff to prove her case as pleaded in the plaint. .
54. The contention of the counsel for appellant that onus is of no relevance in the instant case because defendant has made specific pleading in the written statement that Somaria is daughter of Dev Lal Rai is totally misconceived. The failure on the part of the defendant to prove his pleading as raised in the written statement will not give any gain to the plaintiff to succeed in case even if the plaintiff has failed to prove her case as pleaded in the plaint by reliable and cogent evidence.
55. Therefore, this Court, does find any illegality in the impugned judgment and decree passed by the Court below by which the Court has come to the conclusion that plaintiff has miserably failed to prove that she was daughter of Sampat Gope and sister of Punwa Devi and therefore she is not Patna High Court FA No.585 of 1994 dt. 29-08-2019 35/35 entitled to a decree for partition and recovery of possession in schedule IV property. The Court below has accordingly dismissed the suit filed by the plaintiff on contest.
56. This appeal is, accordingly, dismissed on contest with cost and judgment and decree passed by court below is hereby affirmed.
57. The plaintiff is directed to make payment of cost of Rs. 10,000/-(Ten thousand) to the defendants towards cost of litigation within a period of two months from the date of passing of this judgment.
(Sanjay Priya, J) shyambihari/-
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