Patna High Court
Ambika Devi And Ors. vs Balmakund Pandey And Ors. on 4 February, 1980
Equivalent citations: AIR1981PAT111, AIR 1981 PATNA 111
JUDGMENT Sinha, J.
1. This is an appeal by defendants 1st Party against the decision of learned Subordinate Judge, Arrah decreeing Title Suit No. 30 of 1963, instituted by the plaintiffs-respondents for partition of the properties described in the four Schedules to the plaint after declaration of title over the properties covered by two of the four schedules, namely, Schedules 3 and 4 to the plaint.
2. The plaintiffs and defendants 1st party, defendant No. 8 being the daughter-in-law of one of the defendants 1st party, hail from a common ancestor, namely, Debi Charan Pandey. The genealgy as given in the plaint, was not disputed before this Court. It would, therefore suffice to say that one Debi Charan Pandey had four sons namely, Sohbat Pandey, Lal Bahari Pandey, Sheo Tahal Pandey and Naubat Pandey. Plaintiff No. 1, Balmakund Pandey undisputedly, having alias name of Mukund Pandey, is the grandson of Lal Behari Pandey. Lakshmi Pandey (Plaintiff No. 2), Rajesh-wari Kuer (Plaintiff No. 3), Bhim Pandey (Plaintiff No. 4), Shri Ram Pandey (Plaintiff No. 5), Sidhnath Pandey (Plaintiff No. 6), Most. Jatia (Plaintiff No. 7) represent the branch of Sheo Tahal Pandey. Naubat Pandey had three sons, namely, Rajkumar Pandey, Ram Nandan Pandey and Mahesh Pandey alias Ram Das Pande. Mahesh Pandey, initially plaintiff No. 8, is dead. Rajpati Pandey (Plaintiff No. 9) is son and Most Phuleshwari Kuer (Plaintiff No. 10) is the daughter-in-law of Mahesh Pandey. Chandra Shekhar Pandey (defendant No. 1), Anrath Pandey (defendant No. 2). Subadar Pandey (defendant No. 3), since dead, and Raghunath Pandey (defendant No. 4) are the four sons of Rajkumar Pandey i. e. they are grandsons of Naubat Pandey and Raj Narain Pandey alias Budhan Pandey (defendant No. 5), Chandraman Pandey (defendant No. 6) and Ram Ekbal Pandey (defendant No. 7) are the sons of Chandra Shekhar Pandey.
3. There are four items of properties in Schedule 1. Two of the items relate to lands of Mouza Chak Khan Pukur (Touzi No. 1447) and Mouza Kulia Degi (Touzi No. 1448) situate within 24 Paragana in the West Bangal which will be referred to hereinafter as the Bengal properties. Item No. 3 of Sen. 1 are lands of Khata No. 19 of Mouza Dulahpur-Nayazipur bearing Touzi No. 1358 and item No. 4 are lands of Mouza Rajpur Dhusri Dhari bearing Touzi No. 1347, both of which are situate in the erstwhile district of Shahabad now Bhojpur. The properties of Schedule 2 con-sist of several items of lands given in Rehan by outsiders to the parties. the Rehan deed having been executed in the name of plaintiff No. 1 (Balmakund Pandey), defendant No. 5 (Budhan Pandey), plaintiff No. 9 (Rajpati Pandey), defendant No. 1 (Chandra Shekhar Pandey, since dead), defendant No. 2 (Anrath Pandey) and defendant No. 5, (Budhan Pandey). The properties of Schedule 3 relate to Khata No. 39 (34/1) having an area of 4.19 acres and are situate in Mouza Dhusri Dhari. The properties of Schedule 4 are again Rehan lands of Mouza Dhusri Dhari in the erstwhile district of Shahabad which Rehan deed stands in the name of defendant No. 8.
4. The learned counsel for the parties were at one that the plaintiffs shall be out of Court in case the story of partition, as set up by defendants 1st party, is upheld. The contentions raised being of limited nature, it is not necessary to set out, detailed facts of the case at this stage and it would suffice to say that the plaintiffs alleged that the differences between the parties having aggravated in the year 1961, the instant title suit having been instituted on 18-6-1963. the parties separated in mess and partitioned all their movable properties but the immovable properties contained in the four schedules, which were said to be joint family properties and in respect of which the plaintiffs claimed unity of title and possession, were left joint. While plaintiff No. 1 and plaintiffs Nos. 2 to 7 each claimed l/3rd interest in the properties in dispute, plaintiffs Nos. 8 to 10 claimed l/6th interest therein thereby leaving l/6th interest therein for the defendants 1st party.
5. The properties of Schedule 3 to the plaint formed the subject-matter of a proceeding under Section 145, Cr. P. C. between the parties which was decided in favour of defendants 1st party and against the plaintiffs thereby leading to the alleged dispossession of the plaintiffs therefrom on 22-5-1962, the date of decision of that proceeding. The properties of Schedule 4 to the plaint were acquired in the name of a female (defendant No. 8). It was for these reasons that the plaintiffs sought for partition of the properties of Schedules 3 and 4 after declaration of title.
6. Defendants 1 to 7 contested the suit by filing one set of written statement and so did defendant No. 8 by filing a different set of written statement. The main defence set up by defendants 1 to 7 was that the four branches of Debi Charan Pandey had already separated before the cadastral survey and settlement operation, which, undisputedly, was finalised in the year 1912. This partition resulted in disruption of the joint family of the parties, their separation in mess, ascertainment of their shares in all the joint family properties and partition by metes and bounds of all the joint family properties except the properties of Khata No. 19 (item No. 3 of Schedule 1), which contained lands as also the residential house of the parties and which were also subsequently partitioned. After this partition Sohbat Pandey, one of the Sons of Debi Charan Pandey, died issueless and the lands that had fallen to the share of Sobhat Pandey including his interest in the lands of Khata No. 19 were partitioned among the remaining three branches of Debi Charan Pandey. After this partition the parties ceased to have any concern with the properties falling into the share of other co-sharers and they began to deal with their properties treating them as their own as also acquired lands in their own names. Defendants 1st party and defendant No. 8 joined hands in asserting that the properties of Schedule 4 were acquired by defendant No. 8 after the said partition out of her own Khas fund with which neither the plaintiffs nor defendants 1st party had any concern.
7. After dealing with the evidence, both oral and documentary, the trial Court held that the lands of Schedules 1 to 3 were the joint lands of both the parties and that the story of partition as set up by defendants 1st party 'did not seem to be correct'. As regards the properties of Schedule 4, the trial Court held that they were acquired by defendant No. 1 from the joint family fund and not by defendant No. 8 out of her separate fund. On these findings amongst other the plaintiffs' suit was decreed as claimed in the plaint and a preliminary decree was ordered to be prepared. The claim for mesne profits was also decreed.
8. The bone of contention between the parties is whether the story of partition as set up by defendants 1st party is correct and in support of his contention Shri R. S. Chatterji mainly relied on certain documentary evidence.
9. Ext. H-1 is the khatian in respect of the Bengal properties. The shares of the parties in this property stand specified in this Khatian. There is also an endorsement in this documents that on account of partition the possession of Mahesh Pandey had not been shown in respect of some of the properties. The trial Court discarded this document by simply observing that a Khatian cannot be regarded as evidence of partition. This may be so but specification of the shares of the different branches indicate their separation Ext. C-1 series are the sale deeds. Where there is no written document for partition and a question arises whether there has been a partition or not, the intention of the parties as to separation can only be inferred from their acts. The question is one of the fact to be decided with due regard to the cumulative effect of all the facts and circumstances and primarily the burden of showing that there has been a partition is on the person setting it up. As has been stated, in para 327 of Mulla's Hindu Law. Thirteenth Edition, at page 380, in case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps in the evidence more readily by reasonable inferences from the evidence on record than in a case where the eivdence is not obliterated or lost by passage of time. Ext.C3-l is a sale deed dated 16-4-1947 executed by Mahesh Pandey alone by which he disposed of his eight annas interest in some of the Bengal properties by stating that the property conveyed under the deed had been coming in his rightful possession by virtue of an amicable partition with the co-sharers, who were named therein and who included defendant No. 1 Chandra Shekhar Pandey. It is further staled therein that by this sale deed he, his sons and sons' son completely divested themselves of their interest in the vended property and that he was selling the property in order to acquire lands in the district of Shahabad. Mahesh Pandey was identified before the Sub-Registrar by plaintiff No. 1. Balmakund Pandey. Ext. C1-1 dated 23-4-1946 is a similar sale deed executed by Mahesh Pandey with respect to 2.71 acres of the Bengal properties. Ext. C2-1 is another sale deed dated 16-4-1947 executed by Mahesh Pandey, above named by which he disposed of some of the Bengal properties after stating, inter alia, that he had raiyati interest in the vended properties by getting the same amicably partitioned with the co-sharers. Ext. C4-1 dated 5-4-1960 is yet another sale deed executed by Mahesh Pandey in respect of some of the Bengal properties in which after naming some of the defendants 1st party as co-sharers he stated that he had obtained title to the vended property by virtue of private partition with the co-sharers by metes and bounds. Ext. C-l and Ext. C5-1 are the two sale deeds dated 14-1-1966 and 23-4-1966 executed by plaintiff No. 9, son of Mahesh Pandey, and plaintiff No. 1 in respect of some of the Bengal properties. Apart from the statement about par-
tition, these sale deeds further show that some of the plaintiffs were dealing with the Bengal properties. Separately treating the vended properties as their exclusive properties. The genuineness or validity of all these sale deeds is not open to doubt nor any such challenge was put forward in course of argument by Shri Tara Kant Jha. In para 87 of the judgment, the trial Court did not attach importance to the statements made in and the separate dealings evidence by the sale deeds by observing that the plaintiffs' case was that these sales took place because the lands stood in the name of the seller which was not inconsistent with the story of joint ownership and joint possession and that the plaintiffs' story about wrong recital about partition in some of the sale deeds appeared to be correct because the evidence discussed by him showed that the family continued to be joint till the year 1961. There is no satisfactory and reliable evidence on behalf of the plaintiffs in support of the plaintiffs' case, as referred to in para 87 of the judgment of the trial Court. To escape the effect of admission about private partition by metes and bounds in some of the sale deeds. P. W. 11 and P. W. 16, both of whom are plaintiffs, stated that the statements were wrongly made and that it was defendant No. 1 who had got those sale deeds scribed, he being the karta of the joint family. This self-serving statement of these two witnesses is unfit for reliance. No earthly reason was pointed out in course of argument by Shri Tara Kant Jha as to why such wrong statement should have been made there. Ext. J-1 is the deposition of P. W. 16 in Title Suit No. 22 of 1949 which was made on 18th August, 1954 in which he stated that Chandra Shekhar Pandey was not on good terms with them and that he was not the Malik of the family. Rather, he stated that Mahesh Pandey was the Mallik and Karta since his Hosh, he having given his age in the deposition (Ext. J-1) as 55 years. When the attention of P. W. 16 was drawn to the statements made in Ext. J-1 he came forward with an explanation that he had so stated at the instance of Chandra Shekhar Pandey but in the next breath, he stated that what he had stated there was correct. Shri Tara Kant Jha, however, contended that the above admission made by Mahesh Pandey in these sale deeds cannot be binding on the other plaintiffs though it may be binding on plaintiff No. 9. Certain principles as regards the effect of admission, have to be borne in mind. An admission must be a clear and unambiguous statement. The value of admissions must depend upon the circumstances in which they are made end possible motives for incorrect statement by interested persons should not be ignored. Where several persons are jointly interested in the subject-matter of the suit, the general rule is that the admission of any one of these persons is receivable against himself and follows, whether they be all jointly suing or sued or whether an action be brought in favour of or against one or more of them separately, provided the admissions relate to the subject-matter in dispute, and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered. Whether the clear admission made by Mahesh Pandey in some of the sale deeds about partition by metes and bounds at a time when there was no dispute or difference between the parties would be finding on all the plaintiffs is not of prime consideration. Since all the plaintiffs are sailing in the same boat and are jointly interested with Mahesh Pandey and after his death with his son, a co-plaintiff, these admissions would be relevant facts for consideration of the issue involved as would create a strong circumstance in favour of the case of the defendants 1st Party of which they can take advantage. These apart, these sale deeds obviously show that some of the plaintiffs were dealing with the Bengal properties since long separately treating the particular property sold by them as their exclusive property to the exclusion of the other co-sharers which would again be a circumstance against the story of jointness set up by the plaintiffs in the plaint.
10. Ext. B-1 series are the rehan deeds and rehan bechnama executed in the name of some of the plaintiffs and defendants 1st party in the years varying from 1943 to 1961, the genuineness of which is undisputed. These deeds show that the parties have been acquiring properties separately in their names since long. The endorsements Ext. A-1 and A1-I on Exts. B-l and Bl-I each dated 6-7-1961 deserve special significance. The consideration money of Ext. B1-I was Rs. 900/-. It was executed in the name of plaintiff No. 1. Ext. A-l shows that plaintiff No. 1 and plaintiff No. 9 re-
turned the original deed of rehannama on receipt of Rs. 900/-. Ext. A1-I also shows that plaintiff No. 1 alone received back the consideration money of Ext. B1-I. Ext. G-1 is a hand-note executed by Padum Thakur in favour of plaintiff No. 1 on 13-6-1954. In 1956 this Padum Thakur gave certain lands to Budhan Pandey (defendant No. 5) and, undisputedly, kept a part of the consideration money in reserve for paying the dues of the hand-note (Ext. G-1). Ext F-1 shows that plaintiff No. 1 got the money due under this hand-note from defendant No. 5. The plaintiffs alleged separation in mess as also complete partition of all moveable properties in the year 1961 stating further that the immoveable properties remained joint. Defendants 1st party set up a case of complete partition some time before the cadastral survey. In such circumstances acquisition made by the different branches in their separate names and the transaction between the parties, inter se, though not conclusive proof of partition would be strong circumstances indicating partition. The trial Court was, therefore, in error in not attaching so much value to these documents, vide para 88 of the judgment.
11. The defendants have also filed the rent receipts (Ext. D-1 series) most of which relate to the lands of Schedule 3. They stand in the name of defendant No. 1 and relate to the period varying from 1944 to 1964. Some of these rent receipts are in respect of Bengal properties and they stand separately in the name of defendant No. 1, Mahesh Pandey, father of Plaintiff No. 9, and Subedar Pawdey son of defendant No. 3. I shall deal with the two Chaukidari receipts filed by the defendants marked Exts. F-1 and F-1/1 as also Ext. 1-1 series, orders in connection with the 145 Cr. P. C. preceding, at the appropriate place.
12. A large number of documents were also filed on behalf of the respondents but since the learned counsel for the plaintiffs-respondents relied only on some of them. I shall deal with them one by one. Ext. 1 series are the rent receipts, tome of which stand in the name of plaintiff No. 2 with respect to 6.23 decimals of land of Mouza Dulahpur, which undisputedly are lands other than the lands of Schedule 3. Some of these rent receipts relate to Schedule 3 lands and they stand in the name of defendant No. 1, Chandra Shekhar Pandey. The trial Court has inferred jointness between the parties from the mere production of the rent receipts by The plaintiffs standing in the name of defendant No. 1 without taking into consideration the explanation offered by D. W. 5 in para 42 of his deposition that before differences grew up between the parties one party used to obtain papers in custody of the other party which is not an unusual feature on case of agnatic relations as also the statement of P. W. 11 in para 41 of his deposition. Without dealing with the contents of the post-cards Ext. 3 series the trial Court observed that they gave 'definite impression' of the fact that both the parties were joint and had common purpose of managing the properties of Bengal and Shahabad jointly after due consultations. While some of the parties were residing in Bengal, the others were in the district of Shahabad. In such circumstances, any correspondence between the parties or even consultations regarding cultivation etc. cannot furnish any scope for 'definite impression' of jointness as wrongly assumed by the lower Court. It is true that the appellants failed to include these post-cards in the brief but if the trial Court without going into the details of these post-cards gained some impression, this cannot adversely affect the case of the appellant. Ext. 4 series are the Chaukidari receipts, some of which standing in the name of Chandra Shekher Pandey were issued by the authorities concerned in Bihar and some of them standing in the name of Mahesh Pandey were issued by the authorities concerned in Bengal. Two rent receipts (Exts. F-l and F1-I) have also been filed by the defendants which were granted by the authorities in Bengal in the name of Chandra Shekhar Pandey. While observing that Ext. F series would not help the case of the defendants, the trial Court observed that Ext. 4 series proved the plaintiffs' case that since Mahesh Pandey was managing the Bengal lands, his name was entered into the Chaukidari receipts issued by the Bengal authorities. This is an incorrect approach adopted by the lower Court.
13. Undisputedly, there are two plots of land in Mouza Niyazipur appertaining to Khata No. 19 (item No. 3 of Schedule 1) over which cattle hats are held. Exts. 6 to 6B are the counter-foils relating to the realisation of tolls from the cattle sellers, Ext. 7 is the challan, Ext. 8 is the notice and Ext. 9 is the registration certificate, all of whom stand in the name of Chandra Shekhar Pandey. The production of these documents standing in the name of Chandra Shekhar Pandey by the plaintiffs has led the trial Court to infer jointness among the parties without considering the statement of D. W. 5 referred to above, that one party used to obtain documents in custody of the other. The contention of Shri Tara Kant Jha was that had the parties really partitioned the lands of Khata No. 19 each of the branches would have realised tolls separately in their separate names. Considering the nature of such lands, in spite of partition, the parties might have thought it convenient and profitable to treat the same as joint for the purpose of realisation of toll. D. W. 5 has stated that the realisation used to be made in his name as the foils and the counter-foils had been got printed in his name but the receipts used to be written by different persons has also been stated by P. W. 11 and the realised toll used to be distributed according to the Shares. He also successfully stated that parties used to contribute to him in the payment of tax for the same.
14. Relying on Ext. 12, a copy of the affidavit sworn in by Chandra Shekhar Pandey in the proceeding under Section 145 Cr. P. C. as also some of his statements in his evidence in the court below and recital in the document Ext. C-1, Shri Tara Kant Jha contended that there was inconsistency in the case of the defendants as to the time of partition. As it some times happend in case of a private partition not evidenced by any written document which takes place long back it may not be possible for a junior member of the family to remember the exact date, month and year of partition. The cadastral survey operation was finalised in the year 1912 when Chandra Shekhar Pandey, the oldest among the members of the defendants 1st party, was hardly about six to seven years of age. No adverse inference against the story of partition can, therefore, reasonably be drawn for non-mention of the particular year of the partition in the written statement particularly when the time of partition is tagged with a very important event, namely, the cadastral Survey operation. Chandra Shekhar Pandey stated in Ext. 12 that the parties had been living separately 'since long' i. e. over 30 years by virtue of private partition, which according to trial Court, contradicted the case of partition. The terms 'over 30 years' cannot be taken to mean exact 30 years Rather, it would mean in a period beyond 30 years which may include the period prior to the cadastral survey operation. This apart, the parties came to court with two cut and dried cases, the plaintiffs alleging separation in 1961 and the defendants alleging partition before the cadastral survey operation.
15. Coming to the statement of D. W. 5 in course of his deposition in the court below, the Bengal properties consisted of several Khatas including Khata Nos. 145/174 and 144/173 consisting of Plot Nos. 188 and 187 having an area of 0.46 decimals and 1 acre respectively. In para 14 of his deposition, D. W. 5 stated that in these two Khatas only Mahesh Pandey and Raj Kumar Pandey got share to the extent of eight annas each presumably in the initial partition and that the other plaintiffs had no share therein. He further stated that the lands of these two Khatas were partitioned among the Malikan presumably meaning thereby Mahesh Pandey and Raj Kumar Pandey in the year 1920 or 1922 and in this partition entire land of Khata No. 145/174 fell into the share of Raj Kumar Pandey and the other Khata to the share of Mahesh Pandey. He further stated, in para 18 of his deposition, that Mahesh Pandey executed a sale deed in favour of Sarat Sao and Hazari Sao in which he transferred more land of one plot than what was his share and the said land was accordingly entered in one of the survey operations in Bengal, there undisputedly being several survey operations there. This led to the execution of another sale deed by Mahesh Pandey in favour of Sarat Sao and Kazan Sao. This stands supported by the recitals in the sale deed Ext. C1-1 executed on 23-4-1946 and Ext. C4-1 dated 5-4-1960 in the name of Hazari Sao and Sarat Sao, Ext. C4-1 stating, inter alia, that one of the plots fell into his share in amicable partition with the co-sharers but, as the co-sharers did not accept this private partition a fresh arrangement regarding the division of lands conveyed under that sale deed was made. It appears that there was some confusion between Mahesh Pandey and sons of Raj Kumar Pandey over the lands of these two Khatas in the earlier partition which ultimately might have led to the second partition of the lands of these two Khatas between Mahesh Pandey and the sons of Raj Kumar Pandey as spoken of by D. W. 5 in para 14 of his deposition D. W. 5 deposed in court in June, 1967 and had stated his age to be 64 years. According to his statement in para 2, the earlier partition took place before his hosh. This statement has got to be read along with his subsequent statement in his very examination-in-chief in para 14, referred to above. The statement of D. W. 5 in para 51 of his cross-examination, was also referred to wherein he stated about the partition of the Bengal Properties in the time of his father and subsequently in the time of his father and grand-father. This confusion might have arisen on account of the fact that, as clearly stated by D. W. 5, the partition took place prior to his hosh.
16. Learned counsel for the respondents also relied upon on the documents Exts. 14 and 14 (a) which are copies of plaints of Title Suit No. 22 of 1949 and Title Suit No. 264 of 1909 respectively as also on the certified copy of deposition of Raj Kumar Pandey (Ext. 20) in Title Suit No. 264 of 1909. Ext. 17 (a) is the order-sheet of Title Suit No. 264 of 1909, Ext. 16 (a), the certified copy of decree of the appeal arising from the suit and Ext. 18 and Ext. 16 (b), the judgment and decree of the Calcutta High Court in Second Appeal arising therefrom. The plaintiffs in the plaint Ext. 14 (a) were Naubat Pandey, ancestor of the defendants 1st Party, Lakshmi Pande, plaintiff No. 2 and others and the defendants were Ram Piyare Pandey son of Jaipal Pandey and others and the subject-matter of the suit was a deed of rehan executed by Jaipal Pandey. Ext. 20 is a certified copy of deposition of Raj Kumar Pandey father of defendant Chandra Shekhar Pandey in the said suit recorded on the 24th Feb., 1910. In the plaint there was a statement that the plaintiffs were members of a joint family governed by Mitakshara and Raj Kumar Pandey also stated in his deposition (Ext. 20) that the plaintiffs were all joint. Ordinarily a joint family envisages the existence of a karta of the joint family. There is no mention in this plaint as to who was the Karta of the joint family mentioned therein although it states about Jaipal Pandey having taken this loan in his capacity as karta of the family of the defendants, A karta of a joint family can alone bring a suit in respect of a transaction entered into by the joint family. Here the different branches of Debi Cha-
ran Pandey have been arrayed as plaintiffs and, as contended by Shri R. S. Chatterji, learned counsel for the appellants, all the plaintiffs might have joined as such on account of the loan in question having been advanced jointly by them although there was no joint family. D. W. 5 has also stated, in para 25 of his deposition, that one Ram Gulam Pandey, sister's husband of Ramdas Pandey, ancestor of some of the plaintiffs used to make pairvi in the suit thereby suggesting that the wrong recital about the joint family in this plaint might have been made at his instance. Be that as it may, the cadastral survey operation having been finalised in the year 1912, it is also possible that the partition, as alleged by the defendants, took place after the filing of this plaint and the deposition of Raj Kumar Pandey. These apart, in a suit for partition, where previous partition is alleged and there is no document of any such private partition it is the preponderance of the evidence that matters.
17. Coming to the plaint (Ext. 14), this suit was filed by Mahesh Pandey, Mukund Pandey, Lakshmi Pandey as also the two sons of Raj Kumar Pandey, namely, Subedar Pandey and Raghunath Pandey, impleaded as defendants 3 and 4 in the instant suit. Outsiders to the family were defendants 1st Party in the suit and defendant 2nd Party consisted of the three persons, namely, the other two sons of Raj Kumar Pandey namely Chandra Shekhar Pandey and Anrath Pandey as also Raghubir Pandey father of plaintiffs Bhim Pandey and Ram Pandey. It appears that defendants 1st party had instituted Title Suit No. 20 of 1939 against defendents 2nd Party of that suit in respect of the ancestral lands of Plot No. 439 alleging that this plot had fallen to the exclusive share of defendants 2nd Party by virtue of a private partition in their family, in which a decree was passed in favour of the plaintiffs. Defendants 2nd Party then preferred an appeal as also second appeal but it appears that they lost it and thus the decree passed in favour of the plaintiffs of that suit became final. Title Suit No. 22 of 1949 was filed by the plaintiffs of that suit for a declaration that the decree passed in Title Suit No. 20 of 1939 was not binding on them and that plot No. 439 is the joint property of the plaintiffs and defendants 2nd Party, they being the members of a joint family with plaintiff No. 1, Mahesh Pandey being the karta of the joint family. The decree of the suit (Ext. 16) shows that it was dismissed on contest with cost. The judgment Ext. 18 (a) further shows that this suit was contested only by defendants 1st Party wherein it was held that there had been no partition between the plaintiffs of that suit and the defendants 2nd Party and that they were still members of the joint family. Shri R. S. Chatterji contended that the suit having been dlsmisssed this iugdnrent cannot operate as res judicata to which contention Shri Tara Kant Jha agreed but the latter contended that two of the sons of Raj Kumar Pandey being the co-plaintiffs of that suit the admission in the plaint about the joint family will be binding on the defendants 1st Party. Though the two sons of Raj Kumar Pandey, above named, were sailing in the same boat with Mahesh Pandey and Raghubir Pandey, father of plaintiffs 4 and 5 were sailig in the same boat with defendent Chandra Shekhar Pandey in that, suit, the stand taken by them in the instant suit is different. Ordinarily had the plaintiffs and defendants 2nd party of that suit been members of a joint family then, they were expected to fight with the outsiders to the family jointly and there would have been no occasion for some of the branches to be arrayed as defendants 2nd party. Lastly P. W. 16 stated, in para 19 of his deposition, that whatever was stated in Ext. 14 was at the instance of (Sikhane se) Chandra Shekhar Pandey. Any admission made in such circumstances can have very little weight. It appears that the trial Court without appreciating the circumstances mentioned above wrongly relied on Exts. 14 and 14 (a) as documents which belied the story oi partition set up by the defendants. So far as Ext. 20 is concerned, Raj Kumar Pandey simply stated in Title Suit No. 264 of 1909 that they were joint 'the plaintiffs are all joint' which cannot tantamount to his admission that they were all members of the joint family as the possibility is that he intended to mean that the plaintiffs had all joint interest in the mortgage bond which was the subject-matter of that suit. Ext. 26 (a), the deposition of Chandra Shekhar Pandey in Title Suit No. 12 of 1929 is also not of much consequence. There Chandra Shekhar Pandey had simply stated that Ramdas had died joint with him but there is no evidence as to when Ramdas died. Secondly, as rightly conceded by Shri Tara Kant Jha, the attention of Chandra Shekhar Pandey (D. W. 5) not having been drawn to the statements made in Ext. 20 (a) it cannot carry any weight. The Khatians (Exts. 22, and 22 (a)) showing the specified share of the parties cannot also be of much assistance to the respondents.
18. Except to the extent indicated above, the learned counsel for the parties did not rely on the oral evidence adduced in this ease and as such any detailed discussion of their evidence appears to be unnecessary. However, coming to the witnesses for the plaintiffs, it would suffice to say that the evidence of P. Ws. 2, 3, 4, 5, 6, 8, 10 and the two plaintiffs, namely, P. Ws. 11 and 16, on the point of jointness alleged by the plaintiffs cannot be regarded as satisfactory and reliable nor most of them appear to be competent to depose on this point, This being the position the trial Court acted wrongly in relying on their evidence. P. W. 2 and P. W. 3 were found changing their statements in their cross-examination. P. W. 2 appeals to have animus against defendant Chandra Shekhar Pandey. P. W. 3 showed his incompetency as to the details of Schedule 3. lands, The evidence of P. W. 4 too reveals his incompetency and be appears to have animus against de-fendants 1st party. P. W. 5 was convicted in a theft case. The suggestion thrown to him was, though he denied it, that defendant Chandra Shekhar Pandey had deposed against him, in that theft case. He had also deposed for the plaintiffs earlier and had worked as a ploughman of Dudh Nath (P. W. 2) for eight to nine years. P. W. 6. on his own showing, is a ploughman of the plaintiffs and he had earlier deposed for them. His evidence regarding joint cultivation of some of the lands by the parties is inconsistent with the case set up by the plaintiffs as deposed to by come of the plaintiff witnesses. P. W. 8 claimed to be a relation but ignorance about the names of the issues of the family and the time when they were married make his claim of being a relation doubtful and it has been suggested to him that the relationship alleged by him is false. The evidence of P. W. 10 also discloses his incompetency to depose on the point of jointness. While the plaintiffs are his close relations, defendant Chandra Shekhar Pandey is not so closely related to him as Mathura, the father-in-law of defendant Chandra Shekhar Pandey, on his own showing is his separated uncle. P. Ws. 11 and 16 being the plain-tiffs their evidence cannot be accepted without a grain of salt. A scrutiny of their evidence discloses their clear anxiety to support their own case. Exts. F-1 and F1-I clearly belie the statement of P. W. 11 that regarding Bengal properties the Chaukidari was assessed only in the name of Mahesh Pandey. P. W. 16 was found taking recourse to memory which indicated his untrust-worthiness. While admitting separate cultivation by the parties, P. W. 16 stated that the lands that they cultivated were not one and the same every year. No satisfactory evidence is forthcoming on behalf of the respondents regarding the partition of moveables in the year 1961. P. W. 16 did not remember about the kind of gram and the quantity that was partitioned. He stated that there was no witness of this partition. One Sibdayal Teli, according to him, had weighed the grains for partition but he has not been examined. The evidence adduced on behalf of the defendants consist of the evidance of D. W. 1, D. W. 5, B. W. 6. D. W. 7, D. W. 8 and D. W. 10. D. W. 1 is an interested witness as his own sister had been married to defendant Chandra Shekhar Pandey. The partition did not take place in his presence but he had seen separate messing and cultivation of the parties. D. W. 5 is one of the defendants and his evidence which were referred to by the learned counsel for the respondents have already been dealt with above. He is, no doubt, an interested witness but his evidence on the whole appears to be more satisfactory and reliable than the evidence of P. W. 11 and P. W. 16, D. Ws. 6, 7, 8 and 10 no doubt came to depose without summons. It is also true that there are some infirmities in their evidence but, on the whole, the oral evidence adduced on behalf of the defendants when read in the context of unimpeachable documentary evidence filed on their behalf, which have been referred to above, may be regarded as acceptable and reliable.
19. On a consideration of all these facts and circumstances as also the broad probabilities of the case in disagreement with the Court below, I have no hesitation in holding that the story of partition as set up by the defendants is correct and the story of separation in the year 1961, as alleged by the plaintiffs, is unfit for acceptance.
20. The properties of Schedule 1 to the plaint might initially be ancestral but, once they were partitioned, as alleged by the defendants, and some of the co-sharers disposed of the lands of their share in the Bengal properties, the question of re-partition of these properties cannot arise. The properties of Schedule 2, as stated above, consist of lands given in rehan in the names of different parties un-disputedly, they are acquisitions after the partition alleged by the defendants. If these properties were acquired by the parties separately in their names after the partition proved by the defendants they cannot be liable to be partitioned.
21. Coming to the properties of Schedule 3, they were the subject-matter of a proceeding under Section 145 Cr. P. C. between the parties. The evidence adduced indicates that these properties were obtained in a suit for foreclosure. The case set up by defendants 1st party, in para 26 of the written statement, was that they were their Khas properties and they were coming in their possession since long and the plaintiffs had no concern with the same. The stand taken by Chandra Shekhar Pandey in the Section 145 Cr. P. C. proceeding vide Ext. II-I, the judgment of that proceeding, was that this land had come to the share of defendants 1st party exclusively and they were paying rent for the same all along and obtaining rent receipts for the same. While some of the plaintiffs who were second party claimed to be in joint possession of this land, the defendants 1st party claimed exclusive possession thereon. By order dated 28-5-1962, the story of joint possession was negatived and the defendants 1st party were declared to be in possession thereof. Ext. I-1 is is a certified copy of the criminal revision preferred by the plaintiffs against the order of Section 145 Cr. P. C. proceeding which shows that the criminal revision was dismissed. The rent receipts filed on behalf of both the parties show that in the serishta oi the landlord this land stood recorded a!! along in the name of defendant Chandra Shekhar Pandey and it was he who was paying the rent thereof. The plaintiffs put forward a case that they were in joint possession of this property but they were dispossessed therefrom after the said order though they have not adduced any evidence as to the actual date or month or year or even the manner of dispossession. The oral evidence of joint possession over this land adduced by the plaintiffs is un- acceptable. P. W. 2 has no concern with the land nor the rent for this land was ever paid in his presence. P. W. 3 was unable to say the number of Topras comprising this land. P. W, 4 was unable to say the plot number or khata number of this land. P. W. 5 appeared to be anxious to support the case of the plaintiffs. He stated that Chandra Shekhar Pandey was the Malik since the last 30 to 36 years although plaintiff Balmakund Pandey deposed in Title Suit No. 22 of 1949 vide his deposition Ext. J-l that Chandra Shekhar Pandey was not the Malik of his family. The interestedness and unreliability of P. W. 6 has already been discussed above. P. W. 9 claimed to be bataidar of a portion of this land but he was unable to say the area of the biggest: or the smallest Topra. He has no paper of this batai cultivation. The other two witnesses on this point are P. Ws. 11 and 16 whose evidence cannot be regarded as satisfactory, D. W. 5 in his evidence claimed this property as his exclusive one and D. W. 6 stated that they are in cultivating possession of defendant Chandra Shekhar Pandey and that the plaintiffs had never cultivated it. The evidence of D. W. 7, D. W. 8 and D. W. 10, who claimed to have their own lands nearby, is to the same effect as that of D. W. 6. Thus the oral evidence adduced on behalf of the defendants support the exclusive possession of defendants 1st party over this land since long to the entire exclusion of the plaintiffs. It is true that, in the recent survey and settlement operation, these lands were jointly recorded in the names of the parties after rejecting the objection raised by defendant Chandra Shekhar Pandey vide the certified copy of the order Ext. 17B but the main ground on which this appears to have been done is a finding of the survey authorities that both the parties have got right and title in this land which, as rightly contented by Shri R.S. Chatterji, was beyond the scope for decision by survey authorities. It is also true that the stand taken in the past by defendants 1st party as to the manner of acquisition of this land was inconsistent but it is established beyond all shadow of doubt that they are coming in possession over the same to the entire exclusion of the plaintiffs since long on paying the rent for the same. The defendant 1st party as held above, has succeeded in proving the partition, as alleged by them. This being so, the presumption would be that all the properties of the joint family were divided and a person alleging that the joint family property, in the exclusive possession of one of the members after the partition, is joint and is liable to be partitioned, has to prove his case which the plaintiffs have signally failed to prove. Even assuming that initially the properties of Schedule 3 belonged to the joint family, defendants 1st party being in exclusive possession and enjoyment of the same for more than 12 years prior to the institution of the suit openly, adversely and to the knowledge of all, as rightly contended by Shri R. S. Chatterji, they can well claim to have acquired exclusive title to the same after proving the story of partition, which stands proved.
22. Coming to the properties of Schedule 4, obviously they were acquired by rehan deeds executed in the name of defendant No. 8 in the year 1961 long after the partition, alleged and proved by the defendants 1st party and this being the position it cannot be made liable for partition and it is unnecessary to consider whether the joint family as it existed prior to partition, possessed sufficient nucleus which might have contributed to the acquisition of these properties or whether in fact defendant No. 8 had purchased the same out of her own khas fund. In addition to the relief for partition, the plaintiffs also claimed decree for mesne profits in respect of the lands of Schedules 3 and 4. It would suffice to say that, in view of the finding recorded above, the plaintiffs cannot be entitled to any decree for mesne profits.
23. The result is that the appeal is allowed, the judgment and decree of the court below are set aside and the suit instituted by the plaintiffs is dismissed. There will however, be no order as to costs and the parties shall bear their own costs throughout.
Hari Lal Agrawal, J.
24. I agree.