Patna High Court
Ambika Prasad And Ors. vs Chun Chun Yadav And Ors. on 16 March, 2001
Equivalent citations: 2001(2)BLJR953
Author: S.N. Pathak
Bench: S.N. Pathak
JUDGMENT S.N. Pathak, J.
1. This second appeal is directed against the judgment of the first appellate Court passed by Sri Abhay Shankar Prasad, Sub-Judge, Bhagalpur, in T.A. No. 37 of 1981. The aforesaid appeal was filed against the judgment passed in Title Suit No. 111 of 1975. Both the lower Courts (trial Court and the appellate Court) dismissed the plaintiff-appellants' suit, and hence, this second appeal.
2. Earlier, there was a money suit No. 23 of 1967 which was filed by respondent No. 1 of the title appeal No. 37 of 1981 and respondent No. 2 of the aforesaid appeal along with some other appellants were defendants in the money suit. In that money suit, a decree was passed and in the execution of the money decree, plot No. 711 having an area of 0.74 decimals, plot No. 718 having an area of 0.49 decimals and plot No. 708 of Khata No. 61 were auction-sold. Thereafter, respondent No. 1 of the aforesaid appeal and the appellants before this Court filed Title Suit No. 111 of 1975, seeking annulment of the decree passed in Money Suit No. 23 of 1967 as also the sale of the suit land in Execution Case No. 119/73. This suit was heard and thereafter, the trial Court dismissed the suit on the grounds, inter alia, that the suit was filed beyond time-limit and also on the ground that plot No. 708 was not the exclusive property of the plaintiff of T.S. No. 1.11 of 1975. Before this Court in the Second Appeal, the only issue of law formulated for decision of this appeal is whether in the absence of sufficient nucleus of joint family, the suit plot No. 708 could be purchased in the individual name of the appellant, in order to form part of the joint family property and whether the Courts below misdirected themselves by holding that the plaintiff of the suit in appeal had failed to discharge his onus.
3. Before I proceed to discuss the substantial question of law, formulated for decision of the appeal, I would like to refer to the argument put forward by the appellants before me to the effect that any other question of law not formulated by this Court at the time of admission may be raised under Section 100 of the Code of Civil Procedure. In this connection, the bar of the suit by time was also referred to. It was submitted before me that the lower Courts wrongly decided the issue of limitation because the suit under appeal was well within time from the date of knowledge of the decree passed in the money suit concerned. In this connection, I find that both the lower Courts gave concurrent finding that the plaintiff-appellants had full knowledge of pendency of money suit and there was proper notice, served upon persons concerned in the execution case concerned and there was due proclamation of sale as enjoined under the law. The plaintiff-appellants, therefore, had failed to prove that the suit was well within time from the date of his knowledge. When any party in the suit claims knowledge of the decree on a particular date or period, that is a question of fact which is decided on evidence. Both the lower Courts in this connection discussed the oral and documentary evidence and came to definite finding that the suit was barred by time. Hence, the question of limitation was a mixed question of fact and law and so the findings of both the lower Courts becomes conclusive. I am, therefore, of the opinion that there is no necessity to differ with the findings of the lower Courts on the point of limitation.
4. Now, so far the question whether Plot No. 708 was the exclusive property of the plaintiff-appellants and so it should not have been put to auction-sale is the only question before this Court. The appellants' contention was that both the lower Courts misdirected themselves in placing the onus upon the plaintiff-appellants instead of upon the defendant-respondents. In this connection, it was submitted that admittedly, plot No. 708 was purchased in the name of plaintiff-appellants' ancestors in the year 1951 and so it was for the defendants to prove that it was part of joint family property (defendant No. 2 of the money suit). In this connection, it was further submitted that it was not proved by the judgment-debtor of the money suit that there was nucleus of property held jointly by the plaintiff-appellants' and the judgment-debtor of the money suit and hence, the sale-deed, standing in the name of plaintiff-appellants ancestor had to be held to be his exclusive property; but the appellants' lawyer has lost sight of the fact that it was the pleading of the plaintiff-appellants in the suit under appeal that suit plot No. 708 was purchased after separation in the family and that only 10 kathas of plot No. 711 and 718 fell to the share of judgment-debtor of the money suit, therefore, the auction-sale in the execution case with respect to the land beyond 10 kathas of plot No. 711 and 718 and the sale of plot No. 708 was wrongly done. Now, two questions had to be decided by the lower Courts, whether on account of partition in the family of the defendants only 10 kathas of plot No. 711 and 718 fell to the share of the judgment-debtor of the money suit and whether plot No. 708 was acquired in the name of ancestor of the plaintiff-appellants after separation. Another question was the question whether plot No. 708 was acquired when the joint family has sufficient nucleus to purchase plot No 708 in the name of one of these coparceners. The clear law is that when a family is joint and has joint family property having sufficient income to make further acquisitions, any purchase in the name of any coparcener shall be deemed to be the property of the joint family and to prove the exclusive property of that coparcener is the onus of the coparcener in whose name the freshly acquired property stands. I find that both the lower Courts considered the oral and documentary evidence in this connection and came to the definite finding that the plaintiff-appellants failed to prove that on partition, only 10 kathas fell to the share of judgment-debtor of the money suit. Both the lower-Courts also gave a concurrent finding that the joint family of the appellants and the defendants of the money suit had sufficient nucleus to purchase fresh property. In this connection, it was submitted before me that there was no evidence that the joint family had saving to purchase plot No. 708 for Rs. 490/- in the year 1951. The learned lawyer has confused the word-'savings'. He interpreted the work 'nucleus' to be savings and equated it with the word 'income' in order to camouflage the idea behind the word-'nucleus'. The word-'nucleus' in its literal sense means core mass of anything and 'nucleus' of joint family property means, in clear terms, the original property from which can flow sufficient income to acquire any further property by a joint family of coparceners. In the lower Court, the Khatiyan (Ext. 6/B) was filed which indicated that the common ancestor of the aforesaid plaintiff-appellants and the judgment-debtor of the money suit possessed six plots having an area four acres and odd decimals and all those lands were culturable lands. On this basis, both the lower Courts held that the joint family possessed sufficient nucleus to give sufficient income to purchase plot No. 708 in the year 1951.1 do not think the lower Courts committed any legal or material error in coming to this conclusion on the basis of the evidence. In such a circumstance, it was for the plaintiff-appellants to prove that suit plot No. 708 was acquired after separation or from the independent income of the plaintiffs' ancestor. So far as the evidence of separation is concerned, there was no evidence on behalf of plaintiff-appellants as to when the separation took place. The pleading in this connection was also absent. The trial Court and the appellate Court both, therefore, discussed the evidence of a particular defence witness and came to the finding that separation in the joint family and the joint property came only after 1951. So this was a question of fact and both the lower Courts gave concurrent finding which became final and I do not think, this Court can unnecessarily interfere with the aforesaid findings. It was submitted before me by the appellants' lawyer that the finding of the lower Courts as regards separation and as regards nucleus, are perverse and so this Court can rightly interfere. But, the discussion above has shown that the findings of the lower Court are neither perverse nor unwarranted by the evidence on the record; rather the interpretation of appellants' lawyer regarding nucleus and the evidence of separation, etc. is itself myopic. So, I am of the considered opinion that the lower Courts did not misdirect themselves in placing the onus on the plaintiff-appellants to prove that plot No. 708 was exclusive property of the plaintiff's ancestors so that it could be excluded from the auction-sale in the execution case of the money suit.
5. As a result of the aforesaid discussion, I am of the opinion that this appeal has no merit nor the judgment of the lower Courts deserve any interference.
6. Accordingly, this appeal is dismissed on contest but without cost.