Patna High Court
Ashok Kumar & Ors vs Ram Chandra Pd & Ors on 16 April, 2014
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.407 of 1989
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1.Ashok Kumar
2.Binod Kumar
3.Pramod Kumar, All sons of late Bishwanath Ram Sahu, resident of Mohalla- Sheikhpura, Post Office & Police Station-Sasaram, Dist.-Rohtas .... .... Appellant/s Versus
1. Ram Chandra Prasad Son of Late Bechan Sah
2. Kalawati Devi wife of Ramchandra Prasad Both resident of Mohalla- Sheikhpura, Post Office & Police Station-Sasaram, Dist.-Rohtas .... .... Respondent/s =========================================================== Appearance :
For the Appellant/s : Mr. Anjani Kumar Sinha, Advocate For the Respondent/s : Mr. Ganpati Trivedi, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH C.A.V. JUDGMENT Date: 16 -04-2014
1. The appellants in the present appeal were plaintiffs in Title Suit No. 101 of 1985 which was decreed in their favour by the Court of learned 1st Additional Munsiff, Sasaram by a judgment and decree dated 17.8.1989. They are aggrieved by the judgment and decree dated 25.7.1989 passed by learned 1st Additional District Judge, Rohtas at Sasaram in Title Appeal No. 58/7 of 1989 which learned First appellate Court has set aside the judgment and decree dated 17.5.1989 and dismissed the suit.
2. The appellants had sought declaration of title/confirmation of possession and in the alternative recovery of possession in their favour and for grant of permanent injunction against the defendants in 2 respect of the suit property. They also sought for a declaration that the ex-parte order dated 2.4.1985 passed by the Executive Magistrate, Sasaram in case No. 878 M/1982 under Section 145 of the Code of Criminal Procedure was illegal, void, without jurisdiction, inoperative and not binding on the plaintiffs.
3. As per the plaintiffs' case one Ram Kishun Sah had four sons, namely, Bhagwan Sah, Tinkauri Sah, Sita Ram Sah and Ram Chandra Sah. Ram Kishun Sah had properties at Varanasi as well as at Sasaram. In a family arrangement made much earlier, Bhagwan Sah and Ram Chandra Sah had settled with the properties at Varanasi whereas Tinkauri Sah and Sita Ram Sah settled with the properties at Sasaram. Plaintiffs belonged to the branch of Sita Ram Sah, who as per the plaintiffs' case had settled with the properties at Sasaram jointly with Tinkauri Sah. Heirs of Tinkauri Sah were the defendants.
4. The plaintiffs' further pleaded that the ancestral properties at Sasaram were partitioned among two brothers and the suit properties along with some other land came in exclusive share of Bishwanath Sah (original appellant no.1 who was substituted subsequently after his death by his three sons). The other son of late Sita Ram Sah, namely, Ram Briksh Sahu was also plaintiff and was appellant no.4 in the present second appeal but his name was subsequently expunged as he died issueless. There was a registered 3 deed of Taksimnama or deed of partiution dated 30.8.1957 between the original plaintiff by virtue of which the suit property came in exclusive share of the plaintiff no.1 who died during the pendency of the suit and the present appellants got substituted in his place. The original plaintiff No.1 had executed a mortgage deed dated 8.5.1967 in favour of one Ram Bilash Ram out of some personal need which was subsequently redeemed. Municipal assessments for the period 1958-59 to 1973-74 were made in the name of the said plaintiff. As per the appellants/plaintiffs the defendants initiated a proceeding under Section 144 of the Code of Criminal Procedure which was subsequently converted into a proceeding under Section 145 of the Code of Criminal Procedure vide case No. 872m/1982. The said proceeding was dropped by the learned Executive Magistrate, Sasaram on 25.2.1984. However, subsequently by an ex-parte order dated 2.4.1985, he allowed the proceeding under Section 145 of the Code of Criminal Procedure. This compelled the appellants/plaintiffs to file a suit as the defendants started interfering with his peaceful possession over the suit land.
5. The defendants filed their written statement, taking a plea that the suit property had been recorded exclusively in the name of Tinkauri Sah, grandfather of the defendant no.1/respondent no.1 and it was not joint as claimed by the defendants. They pleaded that after 4 death of said Tinkauri Sah, his sole son Bechan Ram became the exclusive owner of the property having description of plot No. 1540 ( measuring 10 Karis) under Holding no.114 of Municipal Ward No.4 at Sasaram. Bechan Ram vide a sale deed dated 23.5.1987 had sold the suit land to one Triveni Lal, who thereafter sold it to Kalawati Devi, wife of defendant no.1 vide registered deed dated 13.6.1981. As per the defendants, Tinkauri Sah had constructed a house over the suit property in the year 1942 itself with the permission of Sasaram Municipality. It was pleaded that Triveni Lal, though had purchased the property in the year 1957, he did not make any effort to get it mutated. However, defendant no.1 i.e. Kalawati Devi got the plot mutated in her name. The defendants further pleaded that deeds of Takshimnama, Mortgage and its redemption as pleaded by the plaintiffs were forged and never acted upon.
6. On the basis of respective pleadings of the parties the trial Court formulated altogether nine issues including the following three:-
"4. Whether there was ever unity of title and possession between the plaintiffs and defendants with regard to the disputed land?
5. Whether the story of partition is genuine and the disputed land was ever allotted to the share of plaintiffs?
7. Whether order dated 2.4.1985 passed by Shri 5 D.N. Mishra Executive Magistrate, Sasaram in Case No. 878M/1982 under Section 145 Cr.P.C. is illegal, void, without jurisdiction, inoperative and not binding on the plaintiffs?"
7. On the basis of analysis of the oral and documentary evidence brought on record in course of trial and rival pleadings of the parties, learned trial court dealing with issues No. 3, 4, 5 and 6 came to a conclusion that there was complete absence of direct evidence of partition on record. The trial Court held that the plaintiff failed to substantiate the story of partition and the disputed land falling in share of Sita Ram, as developed in his plaint. Learned trial Court held that on the basis of the oral and documentary evidence available on record, only inference that could be drawn was that the disputed Plot No. 1540 along with Plot No. 1456 was purchased from income of joint business but the same was by arrangement allotted to Tinkauri Sah, heirs of the defendants. It further held that the plaintiff did not plead and prove that the land was purchased from the income of joint business nor in the defendants' case self-acquisition of disputed land had been pleaded. It further held that even if the property was deemed ancestral, the 6 plaintiff was not entitled to challenge the separation arrangement made before 1930. It went to say that there was no evidence that the suit land pertaining plot No. 1540 was ancestral property of the family of Ram Kishun Sah. It further held that there was abundant evidence to show that Tinkauri Sah enjoyed possession over the suit land permanently without any interference and after him Bechan Sao remained in possession over the disputed land. Dealing with the story of second partition as developed by the plaintiffs, the trial Court analyzing the evidence came to a finding that execution of deed of Taksimnama dated 30.08.1957 (Exhibit-10), which was the foundation of plea of second partition by the plaintiffs could not be said to have been legally brought on record as executor namely, Bishwanant Sah and Ram Briksh Sah were not examined. However, the trial Court subsequently held that since during period of vesting of ownership in Triveni Lal, municipal assessment list was prepared in the names of sons of Sita Ram Sah and one Tamsuk Makfulla was executed by Bishwanath Sah therefore, Triveni Lal did not come over possession of disputed land and thus sale deed was not acted 7 upon and sons of Sita Ram, Bishwanath Sah and Ram Briksh Sah enjoyed possession upon the suit land. It further held that though Triveni Lal purchased from a rightful vendee but he remained dormant and sons of Sita Ram enjoyed possession over the suit land. The right of Triveni Lal acquiesced in due course and as such he has no legal right to transfer the suit land to Kalawati Devi, with wife of the Respondent No. 1.
8. On the basis of oral evidence, the trial Court recorded that there was no link in the pleading and proof of defendants regarding possession of disputed land. After publication of municipal assessment list in the year 1958-59, possession of Bishwanath Sah and Ram Briksh Sah had become adverse to Triveni Lal who did not choose to recover possession nor got alteration done in the assessment list and continued to remain dormant till execution of the sale deed in favour of Kalawati Devi ( defendant no.2). The Court accordingly, held that the suit brought by the transferee of Triveni Lal was barred under Article 65 of the Limitation Act. The Court accordingly held that the plaintiffs got subsisting title and possession over the suit land.
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9. Dealing with issue no.7, on the basis of assessment of evidence on record, the Court held that order of restoration of a proceeding under Section 145 of the Code of Criminal Procedure was without jurisdiction and consequently final order passed on 2.4.1985 was illegal. After having recorded his findings the learned trial Court decreed the suit in favour of the plaintiffs/appellants.
10. The defendants/respondents thereafter, preferred appeal before the appellate Court. The appellants raised a plea before the First Appeal Court, inter alia, that once the trial Court came to the conclusion that the suit land was exclusive property of the ancestors of the defendant, namely, Tinkauri Sah by virtue of having been allotted to him in the partition arrangement prior to 1930 among the four sons of Ram Briksh Sah, there was absolutely no basis for holding that the plaintiffs acquired title thereto by adverse possession because the nature of the suit land was such that it was not capable of being actually and physically possessed which was a vacant piece of land with a well and dilapidated structure of latrine. Learned First appellate Court on the basis of rival pleadings, 9 evidence available on the record of the trial Court and points raised by the appellants formulated the following point for consideration:-
" Therefore, the point for consideration in the present appeal is whether the plaintiff-respondents had or have acquired title to the suit land either on the basis of partition as alleged by them, or by adverse possession and are in actual physical possession thereof so as to be entitled the reliefs sought by them?"
11. On the point whether two sons of Ram Kishun Sah, namely, Bhagwan Sah and Ram Chandra Sah had settled at Varanasi and other two sons Tinkauri Sah and Sita Ram Sah settled at Sasaram, learned First appellant, on the basis of the pleading itself came to a finding that there was in fact of separation in the joint family of the sons of Ram Kishun Sah and in course of such partition Bhagwan Sah and Ram Chandra Sah were allotted properties situated at Varanasi whereas Sita Ram Sah and Tinkauri Sah were allotted property situated at Sasaram including the suit lands. However, there was no evidence nor pleadings as to when such partition/ separation 10 takes place. The first appellate Court on assessment of rival pleadings and evidence of the parties on record referred that the trial Court came to a finding that the story of partition as propounded by the plaintiffs had not been substantiated by them and the story of second partition between Bishwanath Ram and Ram Briksh Ram on the basis of Taksinama had also not been proved. Learned First appellate Court found that trial Court did not deal with the evidence of the parties regarding possession. Learned appellate Court however, reversed the findings of the trial Court primarily on the basis that both oral and documentary evidence adduced on behalf of the defendants on the question of possession of the disputed land was certainly superior to that adduced by the plaintiffs and held that the findings of the trial Court that the plaintiffs were in possession of the suit land since 1958 and had thereby acquired title thereto by adverse possession was not sustainable. Learned First appellate Court, accordingly, set aside the judgment and decree passed by the trial Court, vide his judgment and decree dated 25.7.1989 which is impugned in the present second appeal.
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12. By an order dated 11.5.1990, while admitting the present second appeal this Court formulated following substantial questions of law which the present second appeal involve:-
"(i) Whether the lower appellate Court erred in dismissing the suit without holding that there was partition between the two brothers?
(ii) Whether in the absence of finding regarding partition the appellants were entitled to a decree for joint possession?"
13. I have heard learned counsel appearing on behalf of the appellants as well as the respondents at length. The parties have filed their written notes of arguments which have been kept on record. Assailing the findings of the learned appellate Court it has been submitted by Mr. Anjani Kumar Sinha, learned counsel appearing on behalf of the appellants that the first appellate Court wrongly held the municipal assessment done in the name of the plaintiffs in the year 1957 and onwards was incorrect, since it had not been made on the basis of Exhibit-10, which had not been relied upon by the trial Court itself. Exhibit 10 is the deed of Takshinama ( deed of partition 12 dated 30.8.1957) between both the original plaintiffs. He has submitted that the municipal assessment during this period was made because the plaintiffs had continuous physical possession over the suit land which was within the knowledge to all concerned. He has further contended that the first appellate Court has not recorded cogent reasons nor discussed oral or documentary evidence while holding that the trial court did not deal with the oral evidence of the parties faithfully and separately and for this reason the judgment of the first appellate court is unsustainable. Questioning the findings of the first appellate Court that the learned trial Court illegally declared the title of the plaintiffs by way of adverse possession even there was no pleadings of adverse possession, Mr. Anjani Kumar Sinha, learned Advocate has contended that even though there was no such specific pleadings; evidence either oral or documentary were found suggestive of possession of the plaintiffs over the suit land by adverse possession also and findings of the trial Court should not have been faulted with on this ground by the first appellate Court.
14. To assail the findings of the first appellate Court 13 learned counsel for the appellants has contended that the findings of the first appellate Court reversing the findings recorded by the trial Court does not meet the mandatory requirement of dealing with the evidence and assigning cogent reasons for reversal. He has placed reliance upon a judgment of the Supreme Court reported in 1983 BBCJ 30 (SC) (Madhusudan Das vs. Narayani Bai) to contend that the appellate Court should permit the findings recorded by the trial Court based on oral evidence, to prevail, unless some special feature of a witness excaped the notice of the trial Court and even if witnesses are related, that cannot be discarded. He has placed reliance upon another judgment of this Court reported in 1980 BLJ 414( Shibram Missir vs. Tularam Missir and ors) to submit that a property acquired at a time when only source of income of the parties was joint family income, no self acquisition could be held.
15. Mr. Ganpati Trivedi, learned counsel on the other hand, while appearing on behalf of the respondents/defendants has supported the findings of the first appellate Court and has submitted that there is specific 14 findings by the trial Court that there had been complete absence of direct evidence of partition on record and however, held that Tinkauri Sah was in possession of the suit property permanently without any interference and after him Bechan Sah remained in possession over the disputed land. The trial Court further held in paragraph 9 of the judgment that this clearly indicated that partition among four sons of Ram Kishun Sah might have provided purchase of separate house for Tinkauri Sah, due to which such a purchase was made and Tinakuri Sah remained in possession over there with bonafide right and title. He contends that these finding of the learned trial Court remained unassailed by the plaintiffs/appellants as they did not file any cross objection and thus, these findings became final and were rightly affirmed by the first appellate Court. He contends, relying upon Supreme Court judgment reported in AIR 1962 SC 287 (Bhagwan Dayal vs. Mostt. Rewati Devi) and judgment of this Court reported in AIR 1952 Patna 382 to contend that in absence of any pleading of reunion between Tinkauri and Sitaram Sah, presumption of partition of joint family property between Tinkauri and Sitaram is a 15 necessary corollary as the plaintiffs miserably failed to rebut the said presumption. He has placed heavy reliance upon the Supreme Court judgment reported in ( 2007) 1 SCC 546 ( Gurudev Kaur Vs. Kaki) to contend that findings of fact arrived at by the first appellate Court based on evidence should not be interfered with by this Court unless it is found to be perverse.
16. On the basis of rival submissions made on behalf of the parties, the judgments of the trial Court and the appellate Court as well as lower Court records, it is evident that the plaintiffs claimed title over the suit property on the plea that two sons of Ram Kishun Sah had settled at Varanasi while other two i.e. Tinkauri and Sita Ram settled with the properties at Sasaram. There is no dispute as regard this between the parties. The plaintiffs are sons of Sitaram Sah and claimed their title over the suit land mainly on the ground that there was registered deed of Taksinama dated 30.8.1957, ( Ext.10) after a partition between Tinkauri Sah and Sitaram Sah nearly forty years ago. The plaintiffs had got their names entered in the Municipal records and assessments were made in the year 1958-59. There is no dispute about the fact that the trial Court 16 recorded that there was no evidence to show that the property was ancestral nor nucleus from which the property could have been purchased. They pleaded second partition between Tinkarui and Sitaram which they miserably failed to prove. P.W.8, Vinod Kumar had deposed that in the alleged partition between Tinkauri and Sitaram Sah the dispute land had gone in the share of Sitaram Sah but during cross-examination he admitted that his father had told him that such partition had taken place before 1957. He admitted that he had got no proof about jointness of Sitaram Sah. From the evidence, oral as well as documentary, it would be clear that learned trial Court rightly held that at the time of migration of two brothers at Varanasi, separation was effected amongst all. The trial Court rightly came to a finding that the plaintiffs failed to substantiate the story of second partition between Tinkauri and Sitaram. The plaintiffs failed to bring on record any evidence in support of the fact that suit land appertaining to Plot No. 1540 was ancestral property of the family of Ram Briksh Sah. In my view, after having recorded such finding the trial Court ought not to have decreed the suit in favour of the plaintiffs on the 17 ground of adverse possession, relying upon the Municipal assessments only, a fortiorari, in the absence of any claim for title based on adverse possession, raised by the plaintiffs. I find force in the submission made on behalf of the respondents, relying upon the judgment of the Supreme Court in case of (1995) 4 SCC 496 ( Vidya Devi alias Vidya Vati vs. Prem Prakash and others), paragraph 34 of which reads thus:-
"34................... What, however, emerges from a perusal of the pleadings contained in the written statement filed on behalf of the respondent is that the plea of adverse possession had not been specifically raised by setting out all the requisite ingredients which had necessarily to be pleaded in order to constitute the case of acquisition of title by adverse possession. Unless, the pleadings are complete and all the necessary ingredients to constitute ouster by adverse possession are set out in the written statement, the plea relating to the title of the property in question cannot be said to have been raised and, therefore, there was no occasion to frame any issue on the question of title or to refer it to the civil court. The judgment passed by the Delhi High Court cannot be sustained and must, as proposed by esteemed brother Venkatachala, J. be set aside, though for different reasons, set out above." 18
17. I find force in the submission made on behalf of the respondents/defendant that the plaintiffs themselves pleaded that there was partition among four sons of Ram Kishun Sah in the year 1930, in absence of any pleading of reunion between Tinkauri and Sitaram Sah the presumption of complete partition in the joint family property is a necessary corollary and there is no evidence nor pleading to prove that there was reunion between Tinkauri and Sitaram at any stage after partition. In case of Bhagwan Dayal Vs. Mostt Rewati Devi (supra) the Supreme Court held that every Hindu family is presumed to be joint unless contrary is proved but this presumption can be rebutted by direct evidence of partition or by course of conduct leading to an inference of partition. Further, there is no presumption that when one member separates from the others the latter remain united; whether the latter remain united or not must be decided on the facts of each case. The Supreme Court held that reunion must be strictly proved and to constitute reunion there must be an intention of the parties to reunite in estate and interest and implicit in the concept of a reunion that there shall be an agreement between 19 the parties to reunite in estate with an intention to revert to their former status of a joint Hindu family. From the records it would appear that the plaintiffs did not raise such plea in course of trial.
18. The first substantial question of law as to whether the lower appellate Court erred in dismissing the suit without holding that there was partition between the two brothers; I find that as a matter of fact there was no dispute over the issue of partition among the sons of Ram Kishun Sah as the plaintiffs themselves pleaded that partition was there in the year 1930 itself. For dismissing the suit in the facts and circumstances of the case, the Courts were not required to hold first that there was partition between the two brothers. This was precisely the case of the plaintiffs that there was partition between Tinkauri and Sitaram Sah nearly forty years ago, but as has been discussed above, they miserably failed to bring any evidence in support of the plea that there was such second partition. On the other hand, there was abundant evidence to show that Tinkauri enjoyed exclusive possession over the suit property permanently without any interference and after him his son 20 Bechan Sah remained in possession over the disputed land. It also appears from the evidence on record that the plaintiffs could not even prove that the suit property was a joint family property.
19. On perusal of the judgments of the appellate Court as well as the trial Court I am of the view that the lower appellate Court did not err in dismissing the suit in the facts and circumstances of the case after discussing the evidence on record. So far as partition amongst the brothers is concerned, as referred to in substantial question of law framed by this Court vide order dated 11.5.1990, I am of the view that since the plaintiffs themselves had pleaded that there was partition amongst the fours sons of Ram Kishun Sah including Tinkauri Sah and Sitaram Sah whose heirs are the parties in the suit/appeal, the judgment of the lower appellate Court cannot be faulted with. So far as the second substantial question of law is concerned as to whether in absence of any finding regarding partition, the appellants were entitled to decree for joint possession, I am of the view that jointness between Tinkauri and Sitaram Sah after partition amongst four sons of 21 Ram Kishun Sah has not been proved nor the nucleus from which the property could be said to have been purchased. My answer to the second substantial question of law is in the negative in the facts and circumstances of the case.
20. The findings of the first appellate Court are based on appreciation of evidence which have been discussed, reasons for reversing the findings of the trial Court have been dealt with in detail by the first appellate Court. The judgment of the first appellate Court requires no interference by this court in exercise of power under Section 100 of the Code of Civil Procedure.
21. This second appeal is accordingly, dismissed but without costs.
Arunkumar/- (Chakradhari Sharan Singh, J)