Patna High Court
Most.Bedamo Devi @ Bedami Devi vs Most.Raj Pato Devi & Ors on 11 April, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court FA No.217 of 2000 dt.11-04-2012
1/14
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.217 of 2000
Against the judgment and preliminary decree dated 20.09.1999
passed by Sri Mahatam Prasad, Subordinate Judge IX, Patna in
Title Partition Suit No.99 of 1994.
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Most.Bedamo Devi @ Bedami Devi
.... .... Defendant-Appellant
Versus
Most.Raj Pato Devi & Ors
.... .... Plaintiffs-Respondents
With
First Appeal No. 143 of 2001
Against the judgment and final decree dated 07.12.2000(decree
signed on 13.02.2001) passed by Subordinate Judge IX, Patna in
Title Partition Suit No.99 of 1994/45 of 1998.
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Parmanand Singh & Ors
.... .... Defendants-Appellants
Versus
Most. Raj Pato Devi & Ors
.... .... Plaintiffs-Respondents
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Appearance :
For the Appellants(in both the First Appeals) : Mr. Ganpati Trivedi, Advocate
Mr. Ajay Kumar Singh, Advocate
For the Respondent nos.2 to 4 : Mr. Kamal Nayan Choubey, Sr. Advocate
Mr. Aditya Narayan Singh-1, Advocate with him.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 11-04-2012
Mungeshwar The First Appeal No.217 of 2000 has been filed by defendant no.4
Sahoo, J.
alone against the judgment and preliminary decree dated 20.09.1999 passed by Sri Mahatam Prasad, Sub Judge IX, Patna in Title Partition Suit No.99 of 1994 whereas First Appeal No.143 of 2001 has been filed by the defendant nos.5 to 8 only against the final decree passed in the aforesaid title partition suit. Since the parties are same and the learned counsels also are same in both the First Patna High Court FA No.217 of 2000 dt.11-04-2012 2/14 Appeals and both the appeals arise out of the same partition suit, i.e., one against preliminary decree and the other against final decree, both are heard together and disposed of by this common judgment.
(2) We shall consider first the First Appeal arising out of the preliminary decree, i.e., First Appeal No.217 of 2000. The plaintiffs- respondents filed aforesaid Title Partition Suit No.99 of 1994 alleging that late Ramjivan Singh had three sons namely late Bindeshwari Singh, Chandeshwari Prasad Singh, the defendant no.1 and late Singheshwari Prasad Singh. The genealogical table has been given at the foot of the plaint. The families of three brothers constitute joint Hindu family wherein late Bindeshwari Singh was the karta. All the three brothers were in Govt. service. The other two brothers who were also in Govt. service used to hand over their salary to the karta, Bindeshwari Singh. The said joint family owned and possessed the joint family property described in schedule II to the plaint. Singheshwari Prasad Singh died in 1983 while in service in the state of jointness leaving behind the plaintiffs as his legal heirs. There was dispute in the joint family in 1984 and consequent thereupon, there was disruption in the family. Bindeshwari Singh, the karta himself prepared a chart of partition containing the description of the properties allotted to the branches of the three brothers. A copy of the same was given to each of the family which was annexed with the plaint as Annexure 1. After the said separation, defendants, 1st set, i.e., Chandeshwari Prasad Singh and his sons completely separated from the defendants, 2nd set but in spite of allotment of separate share, the plaintiff remained joint with defendants, 2nd set both in property and mess. The plaintiff nos.2 to 4 were immature.
(3) The further case of the plaintiffs-respondents is that the father of defendants, 2nd set namely Bindeshwari Singh died in the year 1990 Patna High Court FA No.217 of 2000 dt.11-04-2012 3/14 leaving behind the defendants, 2nd set. The partition affected by Bindeshwari Singh in the year 1984 was not signed by the parties and on the other hand, it required some necessary clarification and because of that matter always scuffle used to occur between the parties. To get rid of the said trouble, the parties sat together on 29.03.1992 in presence of two witnesses, Rambali Singh and Shakaldeo Singh and prepared a fresh memorandum of partition with certain changes, modification and clarification in the previous chart prepared in 1984. On 29.03.1992, a fresh memorandum of partition was written by Sri Rambali Singh. The plaintiff no.2 signed for himself and on behalf of all plaintiffs. The defendant no.1 signed for himself and on behalf of defendant nos.2 and 3. The defendant no.5 signed for himself and for defendant no.4 and 6 to 8. The said memorandum of partition is Annexure 2 to the plaint. After this, all the three branches completely separated. In the partition of the year 1992, the three branches were residing in holding no.9 in which there were altogether 6 rooms with verandah courtyard, kitchen. Out of 6 rooms, 2 rooms were in occupation of each branch. In Annexure 2, out of the said rooms, 5 rooms were allotted to defendants, 1st set and one room in the south east corner together with 3/4 kattha of land towards north east corner was allotted to the plaintiff. It was further settled that after necessary measurement of the cost of construction over 3/4 kattha land, it would be compensated to the defendants, 2nd set by the plaintiff out of their own share. It was also settled that within six months, all the parties will vacate the portion of other parties in their occupation. After said partition, all the three parties made certain construction on vacant lands. The defendants, 1st set had already vacated the southern 2 rooms of holding no.9 and they have shifted to their portion in holding no.10A. The defendants, 2nd set forthwith occupied the 2 rooms vacated by defendants, 1st set but neither they Patna High Court FA No.217 of 2000 dt.11-04-2012 4/14 are ready to vacate south east corner room falling in the share of the plaintiffs according to Annexure 2 nor they are ready to give effect to other terms and conditions of Annexure 2. After six months, as stipulated in Annexure 2, the plaintiff asked the defendants, 2nd set to vacate their portion but they did not hear.
(4) It appears that in the original plaint, the prayer was made for passing a preliminary decree in favour of the plaintiff in accordance with Annexure 2 to the plaint or in the alternative, the fresh preliminary decree for partition be passed. It appears that after filing of the written statement which was filed in 1995, the plaintiff amended the plaint and it is stated that since the defendants are not accepting the partition of the year 1992 as contained in Annexure 2, a fresh preliminary decree for partition be passed. The relief was also amended. The original relief to the effect that a preliminary decree of partition be passed in accordance with Annexure 2 was deleted.
(5) The defendants, 2nd set-appellants filed contesting written statement alleging that immediately after death of Singheshwari Prasad Singh, separation in mess, worship and business took place in the family but the properties remained joint between the parties as tenants in common with defined 1/3rd interest. After severance of jointness, Bindeshwari Singh ceased to be the karta of the family. He made a chart of partition and handed over it to Chandeshwari Prasad Singh and Singheshwari Prasad Singh for approval but the said chart was rejected by the two brothers as unfair and most unequal. Therefore, the parties remained joint as before. The plaintiffs called Rambali Singh and others and a partition proposal was drawn up with consent of the parties subject to adjustment of certain equities with regard to the ornaments etc. and it was subjected to give a final shape after adjustment within six Patna High Court FA No.217 of 2000 dt.11-04-2012 5/14 months by a registered document. The same was not given effect to and, therefore, no final shape with necessary modification after adjustment could be given and consequently, no registered document was executed. Annexure 2 is a manipulated photocopy and the genuineness of the said was denied by the defendants. The defendants-appellants also stated that Annexure 1 and 2 besides being manipulated are different from the original and, therefore, are inadmissible and moreover, those are nothing but mere proposal. Accordingly, none of those documents are enforceable for any declaration as sought for by the plaintiff, as those remained a dead letter. The parties are occupying different portions according to their respective convenience and the properties are held as tenants in common except for the various new constructions made by the parties with consent of one another with mutual understanding that the new construction shall be allotted to the party who has raised subject to adjustment of equities. This arrangement was arrived at in order to meet the growing need of the family. The defendants-appellants in paragraph 22 of the written statement categorically stated that in the circumstances that Annexure 1 and 2 are inadmissible, these defendants have no objection in a fresh partition without reference to the so called Annexure 1 and 2. The defendant nos.9 to 11 and 13 who are purchasers have filed separate written statement contesting the suit. They are the purchasers from the defendants, 1st set. The defendants, 1st set did not contest the suit.
(6) On the basis of the aforesaid pleading of the parties, the learned court below framed the following issues:
I. Is the suit as framed maintainable?
II. Have the plaintiffs got cause of action for the suit? III. Is the suit barred by law of limitation?
IV. Have the plaintiffs valued the suit property and is the court fee paid there on Patna High Court FA No.217 of 2000 dt.11-04-2012 6/14 sufficient?
V. Is there unity of title and unity of possession between the plaintiffs and defendants in respect of the suit Holdings?
VI. Are the plaintiffs entitled for partition as per claim in the suit? VII. Are the plaintiffs entitled for the reliefs as sought for? VIII. To what other relief or reliefs for which the plaintiffs are entitled?
(7) After trial, the learned court below held that the defendants-
appellants have got no objection in fresh partition and, therefore, decreed the plaintiff's suit.
(8) The learned counsel, Mr. Ganpati Trivedi appearing on behalf of the appellant submitted that according to the plaintiff's case, there had already been partition in the year 1984 and in the year 1992. Therefore, the suit could not have been decreed by the court below for fresh partition. The plaintiffs admitted the fact that after partition, the defendants, 1st set shifted to their share and they have sold the properties to the purchasers and in such circumstances, if a fresh partition is recorded then there shall be irreparable loss to the appellant. The plaintiff originally filed the suit for enforcement of Annexure 2 but the learned court below decreed the suit for fresh partition. The learned counsel further submitted that the defendants-appellants had adduced evidences that after partition, they have constructed separately the houses and are residing there and the three branches were separate in all respects but the learned court below without considering these evidences, decreed the suit on the ground of Order 12 Rule 6 C.P.C. saying that the defendants-appellants admitted the claim of the plaintiff. The learned counsel further submitted that in fact, the defendants-appellants never admitted the claim of the plaintiff rather from reading the written statement as a whole it will appear that in fact, the defendants-appellants were giving emphasis that Annexure 2 should be Patna High Court FA No.217 of 2000 dt.11-04-2012 7/14 registered to give the finality to the partition between the three branches and, therefore, the admission made in paragraph 22 is only alternative. Moreover, on the basis of mere statement only made in paragraph 22, the plaintiff's suit cannot be decreed particularly when it is the case of the plaintiffs themselves that there had already been partition between the parties. Moreover, if the suit could have been decreed on the basis of admission in the written statement in view of Order 12 Rule 6 C.P.C. at the very initial stage, the plaintiff should have filed application and the trial court should have decreed the suit but after trial, i.e., after production of oral as well as documentary evidences in the judgment, the court below decreed the suit wrongly held that the defendants have no objection if a fresh partition is ordered. The learned counsel submitted that he has got no objection if the partition is done according to Annexure 2 to the plaint. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside.
(9) On the other hand, the learned senior counsel, Mr. Kamal Nayan Choubey appearing on behalf of the plaintiffs-respondents submitted that so far selling the share of defendants, 1st set is concerned, it will not affect the share of the parties because whatever properties have been sold by the defendants, 1st set shall be adjusted in their share. Moreover, the dispute is between the plaintiff and the defendants, 2nd set-appellants regarding holding no.9 wherein defendants, 1st set is never allotted any share. Originally, the plaintiff filed the suit for giving effect to Annexure 2, i.e., the partition in the year 1992 but the defendants-appellants filed the written statement challenging the said Annexure 2 and it is their case that Annexure 1 and 2 are manipulated documents and cannot be given effect to. Therefore, the plaintiff had got no option but to amend the plaint and deleted the prayer partition for giving effect Patna High Court FA No.217 of 2000 dt.11-04-2012 8/14 to Annexure 2. Now, therefore, the appellants cannot be allowed to blow hot and cold by saying that Annexure 2 may be given effect to. The share of the plaintiff is admitted and according to the appellants, they are in possession of the property according to the convenience. Therefore, the learned court below has rightly decreed the suit for partition. On these grounds, the learned counsel submitted that the First Appeal is liable to the dismissed with cost.
(10) In view of the above contentions of the parties, the points arise for consideration in this appeal is as to "whether the plaintiff's suit has rightly been decreed by the court below" and "whether the impugned judgment and decrees are sustainable in the eye of law?"
(11) According to the plaintiffs, the karta had prepared the partition chart in the year 1984 which was incomplete and, therefore, there was scuffle between the parties. Accordingly, in the year 1992, another memorandum of partition was prepared to resolve the earlier dispute.
According to this partition of the year 1992, the defendants, 2nd set-appellants were to vacate the portion allotted to the plaintiff but they did not vacate and did not give effect to Annexure 2. On the contrary, according to the defendants, 2nd set-appellants, Annexure 1 was incomplete and it was not acted upon. So far Annexure 2 is concerned, it is unregistered and unless it is registered, it could not be given effect to and moreover, these Annexure 1 and 2 are manipulated documents and are different than the original documents and none of these documents are enforceable in the eye of law. The parties are in occupation according to their convenience.
(12) The parties have adduced their evidences in support of their pleadings. P.W.1 is plaintiff no.3. P.W.2 is the plaintiff no.2. Both of them have stated the same thing as pleaded in the plaint.
Patna High Court FA No.217 of 2000 dt.11-04-2012 9/14 (13) D.W.3 is defendant no.8. He has stated that in 1983, Singheshwari Prasad Singh died. After his death, there was separation in mess and residence and in 1984, there was complete partition between the parties. According to the partition, all the parties came in separate possession of the properties. After coming into possession, they all have constructed their own houses. According to the partition of the year 1984 and 1992, the parties are in separate possession of the properties. D.W.4 is a formal witness. D.W.5 is defendant no.5. He has stated that Singheshwari died in 1983. Thereafter, the plaintiffs gave pressure for partition. A complete partition took place in 1984. They came in separate possession of the properties according to partition. In the partition of 1992, Rambali Singh, Chandeshwar Singh, Mithilesh Singh and others have signed. D.W.6 has stated that on 29.03.1992, the parties have called them to resolve some dispute and a document was prepared. D.W.2 is defendant no.6. He has stated that after death of Singheshwari in 1983, there was complete separation between the three branches. They were in joint possession according to their convenience. In 1984, a chart was prepared for partition. According to that partition, all the three branches came in separate possession in separate holding. These are the evidences produced by the parties.
(14) From the evidences of the defendants discussed above, it appears that the pleading is different and the evidence of the witness examined by the defendant is different. In the pleading, this specific case of the appellant is that although there was separation in mess and residence but there was no partition by metes and bounds. The partition of the year 1984 was not given effect to because it was not finalized as it was unequal. The partition of the year 1992 was also not finalized as there was no registration and the parties Patna High Court FA No.217 of 2000 dt.11-04-2012 10/14 remained joint as before whereas in the evidence, the witnesses have stated that there was complete partition in 1984 and according to that partition, the parties came in separate possession. It is well settled principles of law that no amount of evidence can be looked into upon a plea which was never put forward, a court cannot make out a case not pleaded. The court should confine its decision to the question raised in the pleading vide (2008)17 Supreme Court Cases
491. Here, whatever the evidence has been adduced by the defendants- appellants is contrary to the pleading. Therefore, their evidence cannot be looked into nor can be relied upon.
(15) From perusal of the pleadings of the parties, it appears that the plaintiff specifically pleaded about the partition of the year 1984 which was denied by the defendants-appellants. The plaintiff specifically pleaded about partition of the year 1992 but the defendants again denied the partition of the year 1992. It is specifically pleaded in the written statement that these partitions were never given effect to rather the parties are in possession of the properties according to their convenience. The share of the plaintiff to the extent of 1/3rd is admitted. It further appears that originally the plaintiff prayed for enforcing Annexure 2 but when the defendants-appellants challenged Annexure 2 amendment application was filed and the plaintiff deleted that relief. In such circumstances, now the appellants cannot be allowed to aprobate and reprobate, i.e., cannot be allowed to blow hot and cold to suit his own will. At one place, he said that Annexure 2 is manipulated and is different than original and invited a decision. When the decision went against him, before the appellate court he is saying that the Annexure 2 may be given effect to. As stated above in paragraph 22, the defendants-appellants specifically stated that if a fresh partition is affected without reference to Annexure 1 and 2, the Patna High Court FA No.217 of 2000 dt.11-04-2012 11/14 appellants have got no objection.
(16) Order 12 Rule 6 of the Code of Civil Procedure provides that where admissions of facts have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or on its own motion and without awaiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit having regard to such admission.
(17) Here, the plaintiffs prayed for partition of 1/3rd share. The defendants did not deny the share. The defendants-appellants further specifically pleaded that they are in possession of the property according to convenience and are joint as before. Annexure 1 and 2 are manipulated documents and the defendants-appellants have got no objection if a fresh partition is given effect to without reference to Annexure 1 and 2. In such circumstances, the court had no option but to decree the plaintiff's suit.
(18) So far the submission of the learned counsel that immediately on the filing of written statement on the basis of statement made in paragraph 22 of the written statement, the suit could have been decreed. In my opinion, only because it was not decreed there is no bar in decreeing the suit at subsequent stage. As we have seen above that this jurisdiction can be exercised by the court at any stage and suo moto also. Therefore, only because after evidence the court below has exercised this jurisdiction, it cannot be said that the judgment and decrees are vitiated. Moreover, still the share of the plaintiff is not disputed. The partition of year 1984 and 1992 is not admitted. As stated above, the defendants-appellants cannot be allowed to say that partition cannot be granted although they pleaded that Annexure 1 and 2 are manipulated documents.
Patna High Court FA No.217 of 2000 dt.11-04-2012 12/14 (19) In view of my above discussion, I find that the learned court below has rightly decreed the plaintiff's suit for partition. I find no reason to interfere with the impugned judgment and decree. Therefore, this First Appeal is dismissed with cost of Rs.10,000 to be paid by the defendants- appellants to the plaintiffs-respondents within one month failing which the plaintiffs-respondents shall be at liberty to realize the same through the process of the court.
(20) So far the First Appeal No.143 of 2001 arising from the final decree proceeding is concerned, it appears that on the basis of the preliminary decree, a takhtabandi has been made and in the northern portion of holding no.9, the appellants have been allotted whereas in the southern portion, the plaintiffs-respondents have been allotted. The learned counsel submitted that the learned court below has not considered the settled principles of law of partition and has not considered the possession. The learned court below also did not consider that the defendants, 2nd set-appellants were not allotted any portion of the house towards the main road. On the contrary, according to the learned counsel for the plaintiffs-respondents, there are main road in three sides and so far the block allotted in favour of the appellants has got main road in the northern side as well as in the western side. However, before the trial court, the plaintiffs also agreed to take the portion of the block allotted in favour of the defendants-appellants, i.e., the plaintiffs-respondents agreed to change the takhta but the defendants-appellants did not agree. At the time of hearing, it was argued that all the properties have been given in possession to the plaintiffs-respondents according to final decree. However, the defendants- appellants have got stay regard to 2 rooms allotted in favour of the plaintiffs- respondents.
Patna High Court FA No.217 of 2000 dt.11-04-2012 13/14 (21) In view of the above contentions of the parties, the point arises for consideration is as to "whether the final decree can be interfered with in this appeal?"
(22) The only contention of the learned counsel for the appellant is that in Annexure 2, the portion which was allotted in favour of the appellant have been now allotted in the takhta of the plaintiffs-respondents. It may be mentioned here that we have seen above in the preliminary decree that it is not the case of the defendants-appellants that the parties had separated according to 1984 partition or 1992 partition by metes and bounds. Moreover, it is well settled that so far fact is concerned, the pleader commission visits the place in presence of the parties and after measurement divides the property in equal share to the parties. After objection, the same is being examined thoroughly by the trial court and, therefore, the First Appeal arising out of final decree is in the nature of Second Appeal. In such circumstances, there must be some question of law then only this court will be able to interfere with findings of the pleader commissioner which was confirmed by the trial court. Here, from perusal of the order passed by the court below while rejecting the objection and confirming the pleader commissioner's report, it appears that the takhta which was allotted in favour of the plaintiffs-respondents was offered to the defendants-appellants but they refused to take the said takhta.
(23) In view of the above facts and circumstances of the case, I do not find any reason to interfere with the final decree passed by the court below. Since the preliminary decree has been confirmed by this court, the plaintiff has got 1/3rd share in the holding no.9. This share is not disputed. Only the dispute is that the defendants-appellants should have been given some rooms in the front side. From perusal of the map annexed with the pleader Patna High Court FA No.217 of 2000 dt.11-04-2012 14/14 commissioner's report, it appears that if that is being done then there will be much more complications, i.e., some portion will be allotted in the south and some portion in the north and likewise, the other party will allotted some portion in north and some portion in south and there will be inconvenience to each other. To resolve this difficulty, the plaintiffs offered the takhta allotted in their favour to the defendants-appellants but they also refused to accept the same.
(24) Considering the above facts and circumstances of the case, I find no reason to interfere with the impugned judgment and final decree. This First Appeal is dismissed with cost of Rs.10,000 to be paid by the defendants- appellants to the plaintiffs-respondents within one month from today failing which the plaintiffs-respondents shall be at liberty to realize the same through the process of the court. The interim stay is vacated.
(25) In the result, both the First Appeals are dismissed with costs of Rs.10,000 each to be paid by appellants as indicated above.
(Mungeshwar Sahoo, J) Saurabh/A.F.R.