Jharkhand High Court
Rupan Devi And Ors. vs Jamuna Devi And Ors. on 16 January, 2002
Equivalent citations: 2002 AIR JHAR HCR 1108, 2002 A I H C 4356, (2003) 1 LANDLR 456, (2002) 2 JCR 568 (JHA), (2002) 4 CURCC 145, (2002) 3 JLJR 194
JUDGMENT Gurusharan Sharma, J.
1. Defendants are appellants. Plaintiffs filed Partition Suit No. 124 of 1984 for partition of their half share in the suit property given in the Schedule attached at foot of the plaint.
2. Admittedly, Baraik Budhnath Singh died in the year 1943, leaving behind his widow Mostt. Fagan and three sons, namely, Ramu Singh, Harkhu Singh and Etwa Singh, Jamuna Devi, plaintiff No. 1, widow of Etwa Singh along with her two daughters, namely, Birsi Devi and Tirith Devi, plaintiffs 2 and 3, filed the suit against the widow and four daughters of Ramu Singh, defendants 1 to 5.
3. Defendants contested the suit on the ground that there was previous partition between the parties and the present suit for repartition was not maintainable. In support of their claim, defendants produced a document "Batwara list" duly signed by Miostt. Jamuna Devi, plaintiff No. 1, and Baraik Ramu Singh, husband of defendant No. 1 on 22.3.1976. Jagnnath Singh Mukhia of Gram Panchayat Birda, as well as Lota Lal, sarpanch had also put their signatures thereon on the said date. The sarpanch had also made endorsement thereon that the partition was affected in his presence. The said document being unregistered was not marked as an Exhibit and only identification mark 'Y' was put over it.
4. Trial Court decreed the suit holding that defendants failed to produce any documentary evidence of previous partition by metes and bounds.
5. Plaintiffs, on the other hand, produced certified copy of the petition dated 24.10.1981 (Exhibit 2) filed by defendant No. 1 in the Court of Sub-divisional Officer, Khunti, and certified copy of objection petition dated 23.12.1982 (Exhibit 3) filed by defendant No. 1 in D.C. Case No. 9/120 of 1973-74 in the Court of the Deputy Collector, Land Reforms, Khunti.
6. Some of the plots mentioned in Exhibit 2 were also mentioned in Schedule 'A' property of the written statement, which according to defendants were allotted to the plaintiffs in 1976 partition and in Exhibit 2 defendant No. 1 admitted that plaintiffs had half share.
7. Defendants preferred Title Appeal No. 84 of 1987 which was dismissed on 4.12.1989 and the findings of the trial Court were affirmed with observation that certain lands claimed to have been sold by defendants may be allotted to them in the final decree.
8. At the time of admission of the Appeal, following substantial question of law was framed:
"Whether in view of statements made in paragraphs 6 & 8 of the written statement, the learned Court below could have refused to take into consideration and marked as an exhibit, the memorandum of partition (marked Y for identification) and refuse to take the same into consideration, as a memo of partition does not require registration, in terms of proviso to Section 49 of the Registration Act 7."
9. Appellant counsel submitted that the said document dated 22.3.1976 being a memorandum of partition, even if unregistered, was admissible in evidence. A perusal of the said document and specially the endorsement made thereon by sarpanch and in absence of any recital that partition was already effected earlier. It cannot be termed as a memorandum of partition, rather by this document in presence of mukhiya and sarpanch actual partition was effected on 22.3.1976 itself and thereby 18.38 acres land detailed therein was allotted to Mostt. Jamuna Devi, plaintiff No. 1. Surprisingly, nothing is mentioned therein in respect of allotment of lands, if any, to Baraik Ramu Singh, husband of defendant No. 1. For this reason also, the said document could not have been accepted as a document of partition by metes and bounds between the parties. It was not admissible in evidence. The aforesaid substantial question of law is answered accordingly.
10. This Second Appeal is concluded by concurrent findings of fact recorded by two Courts below that there was no previous partition between the parties by metes and bounds and plaintiffs are entitled to half share in the suit property.
11. In the result, this Second Appeal is dismissed having no merit, but without costs. Lower Court records may be sent down.