Patna High Court
Baldeo Prasad Yadav & Anr vs Kedar Nath Yadav & Anr on 5 September, 2011
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No. 252 OF 2004
Against the Judgment and Decree dated 13.08.2004 passed by
Subordinate Judge IIIrd, Patna in Title Partition Suit No.328 of 2000
/ 158 of 2002.
BALDEO PRASAD YADAV & ANR. .......... Defendants/Appellants
Versus
KEDAR NATH YADAV ............ Plaintiff/Respondent
********
For the Appellant : Mr. Sidheshwari Prasad Singh, Sr. Advocate,
Mr. Krishna Kishore Sinha, Advocate
Mr. Ratan Kumar Sinha, Advocate with him.
For the Respondent : Mr. Dhrub Narain, Sr. Advocate
Mr. Mukesh, Advocate
Mr. Sandeep Kumar, Advocate with him.
Dated : 5thday of September, 2011
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar
1. The defendants have filed this First Appeal against the Judgment
Sahoo, J.
and Decree dated 13th August, 2004 passed by Sri Chandra Bhushan Kumar, the learned Subordinate Judge IIIrd, Patna in Title Partition Suit No.328 of 2000/ 158 of 2002 decreeing the plaintiff-respondent suit for partition to the extent of 44.33 paise share in the suit property.
2. The plaintiff-respondent, Kedar Nath Yadav, filed aforesaid partition suit claiming partition of his 44.33 paise share in the suit premises alleging that the suit property is a triple storied pacca building standing on plot No.36F having an area of 425.80 square yards of Rajendra Nagar Road -2- No.10 B Block No.III type 'F' police station Kadamkuan, Thana No.4, District Patna. According to the plaintiff, Bechu Yadav had only one son, Kheyali Prasad Yadav who has two sons and one daughter, namely, Kedar Nath Yadav, the plaintiff, Baldeo Prasad Yadav, the defendant No.1 and Tetri Devi, defendant No.3. The defendant No.2, Ajay Kumar is the son of defendant No.1. Bechu Yadav died in jointness. After his death, his only son Kheyali Prasad Yadav became the karta. The lands and house of Kheyali Prasad Yadav was acquired by Patna Improvement Truest and the aforesaid land which is suit property was given in lease to Kheyali Prasad Yadav through lease deed dated 11.08.1961 executed by the Chairman, Patna Improvement Trust. Kheyali Prasad Yadav constructed up to double storied building out of joint family fund and he died on 02.02.1972. After his death, the plaintiff and defendant No.1 made construction of 4 rooms in second floor out of the amount received from the tenants of the ground floor and the first floor. Out of 4 rooms of the second floor, two rooms are in occupation of the plaintiff and two rooms are in occupation of the defendant No.1. The defendant No.1 was collecting rent upto Rs.15,000/- per month from the said joint house but he was not giving any account and thereby deprived the plaintiff from his due share in joint house. The plaintiffs demanded for amicable partition but he refused. Hence, the suit was filed for partition claiming 44.33 paise share.
3. The defendant No.1 and 2, i.e., father and sons appeared and filed a contesting written statement. The defendant No.3, i.e., daughter of Kheyali Prasad Yadav neither appeared nor filed written statement nor contested the suit. It may be mentioned here that during the pendency of this appeal, the said defendant No.3 who is respondent No.2 in this appeal, namely, Tetri Devi died and application being I.A. No.626 of 2011 filed for -3- substitution of her legal representatives which is pending for disposal. Heard the parties on this application also. Since the defendant No.3- respodnent No.2 neither filed written statement nor contested the suit, it is not necessary to substitute her legal representatives as it will delay the matter, therefore, the appellants are exempted from substituting her legal representatives and her name is expunged from cause title of memo of appeal under provision 22 Rule 4 sub-Rule 4 of the Code of Civil Procedure.
4. The main defence of the defendant No.1 and 2 in short is that Kheyali Prasad Yadav had got agricultural lands also and the same land was acquired by Govt. of Bihar and compensation was paid to him from which he purchased of 2 katha land through two sale deeds dated 28.08.1957 and 29.08.1957 at Sadikpur Jogi and constructed house thereafter which is known as Kankarbagh for residential purpose. During the life time of Kheyali Prasad Yadav, oral partition took place between plaintiff and defendant No.1 in the year 1971 in the month of December. In the oral partition, plaintiff got the house situated at Kankarbagh in his share and the house of Rajendra Nagar was given in the share of defendant No.1. The joint case amount of Rs.90,000/- was also divided and the plaintiff got 60,000/- whereas defendant got Rs.30,000/- after partition in the year 1971. After partition, the plaintiff was looking after the affairs of the house on his behalf and also on behalf of the defendant No.1. This defendant No.1 had very much faith of his elder brother, the plaintiff. The defendant constructed building in first floor and half portion of second floor.
5. The further case of the defendants is that the plaintiff was in need of money. So, he sold his share house at Kankarbagh and on asking by plaintiff, the defendant No.1 also went to Registry office at Hajipur where the sale deed was registered and on the request of his brother, the -4- defendant No.1 also signed the sale deed on good faith. The plaintiff sold his house through registered sale deed dated 24.03.1987 and then the plaintiff vacated the said house and requested the defendant No.1 to allow him to live in his house at Rajendra Nagar along with his family for some time so that he may arrange the house on rent. The defendant had full faith, therefore, he allowed him to reside in the house in two rooms. The defendants requested him many times to vacate but he avoided on different grounds. Then the defendant came to know that the plaintiff is not willing to vacate the premises on false and wrong please. According to these defendants, Kheyali Prasad Yadav died on 15th February, 1974. The plaintiff sold his house to meet the expenses of marriage of his daughters. The daughter of Kheyali Prasad Yadav was married in sound family and she was not in need of a share in house, therefore, in partition, no share was given to her. So, Kheyali Prasad Yadav partitioned in 1971 between his two sons only. The other allegations have been denied by the defendants.
6. On the basis of the aforesaid pleadings of the parties, the learned Court below framed the following issues :
(i) Is the suit maintainable?
(ii) Is the plaintiff has got the valid cause of action ?
(iii) Is the suit hit by Section 34 of the Specific Relief Act?
(iv) Is the suit hit by law of Limitation?
(v) Whether the plaintiff is entitled for the relief or reliefs claimed
for?
(vi) Whether the plaintiff is entitled for any other relief or reliefs.
7. After trial, the learned Court below while deciding issue No.5 came to the conclusion that the plea of the defendant No.1 and 2 regarding previous partition is not tenable and the defendant No.1 and 2 have failed to prove their plea of previous partition. On the other hand, the plaintiffs proved the plea of unity of title over the suit property and as such plaintiff -5- is entitled to his share as claimed in the plaint. The learned Court below also held that the defendant No.1 and 2 are entitled to their 44.33 paise share. The defendant No.3 is also entitled for her share to the extent of 11.34 paise. Accordingly, the plaintiff suit for 44.33 paise share was decreed.
8. The learned senior counsel, Mr. Siddeshwari Prasad Singh submitted that the learned Court below has not properly appreciated the evidences available on record. There was no property of other party at Hajipur but by playing fraud, land measuring 1 dhur was mentioned in the sale deed with a view to get the sale deed registered at Hajipur and on the mere asking of the plaintiff, the defendant No.1 without reading the contents of the sale deed signed on the same. The defendant No.1 had full faith on his elder brother, the plaintiff, but the plaintiff by playing fraud with intention to grab the property of the defendant No.1 created the documents either in his name or in the name of the wives of the parties. The learned counsel further submitted that the plaintiff made a complaint before PRDA complaining that without permission, the defendant No.1 is constructing the second floor and, therefore, the said construction be pulled down. This action of the plaintiff shows that he is not the owner of the suit property as no owner will make such complain for demolition of his own house. The learned Court below has wrongly not relied this complaint of the plaintiff which has been marked as Ext. 'D'. In the sale deed Ext.E/2 dated 24.03.1987, the share of the defendant No.1 has been shown as only 1 dhur and if there was no partition then the defendants have got half share in the property. To show this fact, the defendant filed the said sale deed wherein it is not mentioned that the parties have equal share but the learned Court below mis-interpreted the same. This registered sale deed -6- clearly shows that the plaintiff was the exclusive owner of the house at Kankarbagh which he sold, therefore, the defence of the defendant that there had been partition in 1971 stands proved. The learned counsel next submitted that the plaintiff wrongly mentioned in the sale deed that the house was sold for payment of bank loan which was obtained by the brother-in-law of defendant No.1 wherein the plaintiff and defendant No.1 were the guarantor. In fact, the house was sold by the plaintiff for meeting the expenses of marriage of his daughter which admittedly took place in the year 1988. The second daughter was married in the year 1995. Therefore, the learned Court below should have considered the fraudulent intentions of the plaintiff. According to the learned counsel, the loan of the bank was paid by the brother-in-law of defendant No.1 in the month of January, 1987 itself and therefore, there is no question of selling the house at Kankarbagh for payment of said loan on 24th March, 1987. This is again a fraud committed by the plaintiff. The documents filed by the plaintiff are not reliable because it is the case of the defendant that after partition also, the plaintiff was looking after the affairs of the suit house and the defendant- appellant had full faith on him but the learned Court below wrongly relied upon those documents and has given a finding that there had been no partition. So far possession is concerned, after selling the house at Kankarbagh, the plaintiff had no house to reside and, therefore, on his request, the defendants allowed him to reside in two rooms of the suit premises, as such, the possession of the plaintiff is permissive possession. The defendant was not knowing the fraudulent action of the plaintiff to grab the property of defendant No.1 otherwise, he would not have allowed him to reside in the house. According to the learned counsel, the witnesses including the relations of the parties have deposed that during the life time of Kheyali Prasad Yadav, there had been partition between the two brothers -7- and plaintiff was allotted the house at Kankarbagh whereas the suit house was allotted in the share of the defendant No.1 but the learned Court below without assigning any reason did not rely on the evidences.
9. The learned counsel for the appellant submitted that an application under Order 41 Rule 27 read with Section 151 C.P.C. has been filed by the appellant on 22.04.2009 seeking permission to adduce additional evidence to bring on record the certified copy of survey khatiyan of Khata No.257 plot No.139 Thana No.101 of village Daulatpur, Distt. Vaishali and statement of loan account of State Bank of India, to show that 1 dhur land of Vaishali mentioned in sale deed, Ext.E/2, is not in existence and that the loan amount had already been paid on 17.01.1987. According to the learned counsels these documents are essential for determining real disputes between the parties and for ends of justice, the said documents be marked as Ext. in the present case. On these grounds the learned counsel for the appellant submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff suit for partition be dismissed.
10. On the other hand, the learned senior counsel, Mr. Dhrub Narain appearing on behalf of the respondent submitted that the presumption of jointness is in favour of the plaintiff. As according to the defendants during the life time of father, there had been partition in the year 1971. According to the appellant himself, the appellant had much faith on the plaintiff. There is no case that there was any difference between the father and the son. There is also no case that there was any difference between the two brothers. No reason has been assigned as to why in such circumstances, the partition took place in the year 1971 during the life time of father. Admittedly, the father had also share in the property as has been admitted by the defendant that it is joint family property. According to the -8- defendant-appellants, Kheyali Prasad Yadav died in 1974 and the partition took place in the year 1971 then what happen to the share of father is not mentioned. The learned counsel next submitted that Ext.'D' on which the plaintiff is relying much is of the year 2003, i.e., during the pendency of the suit when the dispute arose between the parties. During the pendency of the suit, the defendant was making construction, therefore, the plaintiff made the complaint. In view of the above Ext.'D', it cannot be said that there had been partition in the year 1971 and that the defendant is exclusive owner of the suit premises. The plaintiff only made a complain with a view to stop the construction so that the defendant may not claim right exclusively in the property. So far Ext.E/2 i.e., sale deed dated 24.03.1987 is concerned, the learned counsel submitted that no doubt, it is mentioned that the vendor No.2 has 1 dhur but nowhere in the body of the sale deed, it is mentioned that there had been partition between the parties. The learned counsel further submitted that the sale deed was executed not only by the plaintiff but also by the defendant No.1 for self and on behalf of his minor defendant-appellant No.2. In the body of the sale deed, it is clearly mentioned that after the death of Kheyali Prasad Yadav, the parties are coming in joint possession of the properties. The learned counsel further submitted that it is not believable or reliable that a person who has separated himself in the year 1971 and was residing separately according to his case in the suit house will joint as co-vendor in the sale deed only on the request of plaintiff. The learned counsel further submitted that overwhelming documentary evidences has been produced by the plaintiff which shows that the plaintiff was in possession of the house and was also inducting tenants in the house which has been relied upon by the Court below and the explanation of the appellant is only to the effect -9- that he had full faith on the plaintiff. This explanation is neither cogent nor reliable.
11. Mr. Dhrub Narain, the learned senior counsel next submitted that the brother-in-law of defendant No.1 took loan from the State Bank of India wherein the plaintiff and the defendant No.1 were the guarantor. When the brother-in-law of defendant No.1 failed to deposit the loan amount, both the brothers sold the property and paid the loan amount. So far the payment of loan on 17.01.87 and selling the property on 24.03.1987 is concerned, according to the learned counsel, it may be possible that the person who was purchasing the property might have given advance money which was deposited earlier and then the sale deed was executed. But on that ground also, no oral evidence is admissible to explain what is stated in the sale deed. The learned counsel further submitted that it is not reliable that the plaintiff would have sold the house which was his only property and residence also for his family only for the purpose of marriage of his daughter which took place in the year 1988. No prudent man will do such thing without making any alternative accommodation for residence of his family. According to the defendant's case after selling the property and vacating the house accommodation, he requested the defendant No.1 to accommodate him. This conduct alleged by the defendant is not reliable. For the purpose of marriage of daughter, nobody will sell everything and will become a beggar in the street. Because admittedly, except this house plaintiff had no other house as alleged by the defendant No.1. The learned counsel next submitted that considering all the evidences and materials available on record, the learned Court below has rightly found that there is unity of title and possession between the parties. On these grounds, the
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learned counsel prayed that the First Appeal is liable to be dismissed with cost.
12. In view of the above rival contentions of the parties, the only point arises for consideration in this appeal is as to whether the parties have got unity of title and possession and the plaintiff is entitled to his share to the extent of 44.33 paisa and whether the impugned Judgment and Decree are sustainable in the eye of law.
13. According to the plaintiff's case, the suit property is joint and he has got 44.33 paise. According to the defendants, there had already been partition in the year 1971 during the life time of their father, Kheyali Prasad Yadav. To prove their respective cases, the parties have adduced oral as well as documentary evidences. Although the plaintiff has examined 29 witnesses, there are only few material witnesses. Most of the witnesses are formal who have proved rent receipts, letters electric bills etc.. Out of the material witnesses, P.W.2 has stated that the suit property was acquired by Kheyali Prasad Yadav and he constructed house till the second floor and thereafter he died. The plaintiff and defendant No.1 had their another house at Kankarbagh which they sold jointly and there was no partition between them. P.W.17 is the plaintiff Kedar Nath Yadav himself. He has fully supported his case as made out in the plaint. According to this witness, defendant No.3 is his sister and there was no partition between them therefore, on the death of their father, his share will be 44.33 paise only. He has also stated that he was collecting rent from the tenants of first floor and the defendant No.1 was collecting rent from the tenants of ground floor after death of their father. The house of kankarbagh was sold by both to discharge the liability of guarantor towards the loan taken by brother-in- law of defendant No.1 wherein both the brothers were guarantor. He has
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denied that he is residing in the suit house on the permission of defendant No.1. He has proved the letter of tenancy dated 01.03.1984 as Ext.'5' and Ext.'6'. He has also proved the original map of the house which has been marked Ext.'7'. He has also stated that the suit premises stands in the name of plaintiff's wife, Panpati Devi and defendant's wife, Shanti Devi and they are paying the municipal tax half and half. P.W.21 has also stated in the same lien as that of the P.W.12. He has further stated that the 3rd floor was constructed jointly by the plaintiff and defendant No.1. All the other witnesses are formal who have proved the documentary evidences which have been marked Ext.1 series to Ext.11 series.
14. It is well settled principle of law that the normal state of every Hindu Family is joint. In the absence of proof of division, jointness is presumed and this presumption is stranger in case of the brothers. Here, the plaintiff and the defendants are brothers and according to the defendant, partition took place during the life time of father. Since the presumption is in favour of jointness, i.e., in favour of the plaintiff, it is for the defendant to prove the fact that there had been partition between them in the year 1971. Now, let us see the evidences adduce by the defendant in support of his case. According to the defendant, there was oral amicable partition.
15. D.W.1 has stated that except the two house at Kankarbagh and Rajendra Nagar, Kheyali Prasad Yadav had no other property. He during his life time, partitioned the house between his two sons. Rajendra Nagar house was allotted to Baldeo Ji, defendant No.1. Kankarbagh house is allotted to Kedarnath, plaintiff. At paragraph 5 in examination-in-Chief, he has specifically stated that after partition both of them started living in their house separately. Therefore, according to this witness, the parties were
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residing separately in their respective house after partition, i.e., after 1971. He has stated that for the marriage of his daughter plaintiff sold his house and started residing in the house of the defendant. Therefore, according to this witness, after partition in the year 1971, the plaintiff was residing separately with his family in his house and thereafter he came to reside in the house of the defendant after he sold his house in the year 1987. At paragraph 13, he stated that the partition of the year 1971 was made by the Panches and he has named the Panches also. At paragraph 14, he has stated that in the way while he was coming to Court, he knew about previous partition. Therefore, according to this witness, he has admitted that regarding partition, he came to know while he was coming to Court for deposition.
16. D.W.2 has also stated that in the partition, the kankarbagh house was allotted to Kedarnath, plaintiff whereas the hosue of Rajendra Nagar was allotted to Baldeo, defendant No.1 during the life time of Kheyali Prasad Yadav in the year 1971. Plaintiff sold his house for meeting expenses of marriage of his daughter and then started living in the house of defendant and for purchasing new house and land. It may be mentioned here that it is not the case of the defendant that plaintiff sold the property for purchasing new house and land. At paragraph 17, he had admitted the fact that he was not present at the time of partition. He knows that no Panches were there while partition took place. Therefore, the evidence of this witness is contrary to the evidence of D.W.1. According to D.W.1, the partition was done by the Panches whereas according to this witness, there were no Panches. However, both of them admitted that they were not present in the partition, therefore, they have heard about the partition. As such they are heresay witness. D.W.3, 4 and 5 are formal witness. D.W.6
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has stated that he had supplied bricks and sand to defendant No.1 for construction of house. D.W.7 has stated that Baldeo had constructed the second floor and 3rd floor. D.W.8 is the defendant No.1 himself. His evidence is similar to that of defence in the written statement. At paragraph 13 of his evidence, he admitted the fact that except the two houses, his father had no other property. At paragraph 18, he stated that he had not read the contents of the sale deed by which the Kankarbagh house was sold. He has stated that the bank loan account was deposited by his brother-in-law and not by the plaintiff. The plaintiff sold the house for meeting the expenses of marriage of his daughter. At paragraph 41, he has stated that he had not kept the account how much he spent in construction of the house. He is also not able to say recurring expenses regarding the construction on the 3rd floor. He had admitted that his brother-in-law, Lakhan, had taken loan from the bank and both the brothers were guarantor vide paragraph 44. He has also admitted that the bank loan was paid in the year 1987. He has admitted that the first daughter of plaintiff was married in 1988 and the second daughter was married in 1995 vide paragraph 46. Regarding the sister, he has stated that no written consent was obtained from the sister that she does not want to have a share in the property. He had admitted that he never issued rent receipt to the tenants. D.W.9 is the son of defendant No.1. These are the oral evidences adduce by the parties.
17. Now, let us consider the documentary evidences. Ext.'B' is the notice dated 14.08.2003 issued by P.R.D.A. to the defendant No.1 regarding his illegal construction on the suit house. It appears that on the objection filed by the plaintiff, this notice has been issued by P.R.D.A. Moreover this Ext.'B' and the Ext.'D' are of the year 2003. The suit has
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been filed in the year 2000. Therefore, on the basis of these Ext.'B' and 'D', no finding can be arrived at that there had already been partition between the parties as alleged by the defendant. Ext. 'C' is also of the year 2003. Likewise Ext'D' is also of the year 2003, i.e., dated 11.08.2003. So far Ext. 'E/2' is concerned, it is the sale deed dated 24.03.1987. No doubt in the said sale deed, it is mentioned that plaintiff has got 1 katha 90 dhurs whereas the defendant No.1 has got 1 dhur, but from perusal of the contents of the sale deed, it appears that it is clearly mentioned that suit property was purchased by father of parties and since the time of purchase, they were in possession and after death of father, the son and grand son are coming in possession of the suit property and were paying rent. It is also mentioned that the vendor were in need of money for satisfying the loan of brother-in-law of defendant No.1 wherein the vendors were guarantor. It is also mentioned that the vendors had title in the property and, therefore, on the basis of sale deed Ext.E/2, it cannot be said that there had already been partition in the year 1971. According to the defendant himself, the said sold property was allotted exclusively to the plaintiff. In such circumstances, it is not believable that the defendant would have admitted the fact that the parties are in joint possession of the property and they have title over the same. It further appears that the defendant No.1 executed the sale deed not only for self but also on behalf of his minor son, defendant No.2-appelant No.2. Only in one line, it has been mentioned that the defendant No.1 has got 1 dhur share. It is neither the case of the plaintiff nor the case of the defendant. Therefore, merely on the basis of this one line statement made in the sale deed, there can be no presumption that there had been partition between the parties, particularly when the defendant No.1 and the plaintiff are joint vendors.
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18. It appears that during the pendency of this First Appeal at the time of hearing, another interlocutory application was filed on 12th July, 2011 under Order 41 Rule 27 read with Section 151 C.P.C. As stated above earlier in 2009, application under Order 41 Rule 27 read with 151 C.P.C. had also been filed. So far the khatiyan Annexure '1' of order 41 Rule 27 application of the year 2009 is concerned, the same has been filed only with a view to show that one dhur land of Hajipur is not in existence. Even if the case of the defendant-appellant is believed then also it will not make any difference. So far the other document sought to be adduced as additional evidence is concerned, i.e., loan account statement of the State Bank of India by which the defendants want to say that the loan had already been paid on 17.01.1987 by Lakhan Prasad. So far the fact that loan was paid on 17.01.1987 is concerned, it is admitted fact. Ext. '8' has been filed by the plaintiff, i.e., the receipt granted by the bank. In such view of the matter that document is also not relevant for the purpose of this First Appeal. In my opinion, in absence of these documents also, the appeal can be disposed of and in my opinion, the said documents are not essential for the determination of real controversy between parties. Here, the case of the parties is according to plaintiff, the parties are joint whereas according to defendant, there had been partition in the year 1971. Now, therefore, whether the loan was paid on 17.01.1987 by the plaintiff or by the brother- in-law of defendant No.1 is not material.
19. The learned counsel for the appellant submitted that the plaintiff had wrongly mentioned in the sale deed that the house was sold for payment of loan. This loan account will demolish the case of the plaintiff. So far this submission is concerned, I find no force because the defendant- appellant himself admitted this fact in the registered sale deed that the
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house was sold for payment of loan. Admittedly, brother-in-law of defendant No.1 was loanee. It is also admitted that plaintiff and defendant No.1 were guarantor. Ext. E/2 shows that both the brothers sold jointly the house. In such circumstances, it may be possible that the purchaser of the house might have given the part consideration amount earlier and the amount was deposited on 17.01.1987 but only on the basis of this fact, it cannot be said that the statement made in the sale deed is wrong. The other aspects of the matter is that the loanee was the brother-in-law of defendant No.1 but the receipt granted by the State Bank of India has been filed by the plaintiff. The defendant could have examined his brother-in-law in support of his case but neither he had filed receipt granted by the bank nor he examined his brother-in-law. On the contrary, he admitted the fact that the house was sold for payment of loan.
20. In view of my above discussion, I find no merit in the interlocutory application under Order 41 Rule 27 C.P.C. of the year 2009 accordingly it is rejected. So far the other interlocutory application of the year 2011 is concerned, it has been filed at the time of hearing of the appeal. It appears that by this application, the appellants is seeking to adduce additional evidences regarding the notice issued by the Electricity Board and the bills of electricity Board and to say that the appellant deposited the electricity bills and also want to adduce additional evidence by producing the bill of Patna Municipal Corporation. All these documents are of the year 2004 onwards, i.e., during the pendency of this appeal. Moreover, it shows only that the appellant paid the electricity bill and municipal taxes. Only on the basis that during the pendency of the appeal, he paid the bills of electricity and Patna Municipal Corporation, it cannot be
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held that he became the absolute owner of the property. At best, it can be said that he has paid the share of his brother also.
21. In view of the above fact, I find no force in this application also and accordingly, this interlocutory application under Order 41 Rule 27 C.P.C. filed on 12.07.2011 is also rejected because these documents not at all necessary for determination of the real controversy between the parties.
22. Now, let us consider the plaintiff documentary evidences. Ext.1 series are the rent receipts which are standing in the name of wife of plaintiff and defendant No.1. Ext.2 is the notice of Patna Municipal Corporation issued in the name of wives of plaintiff and defendant No.1 which is of the year 1996. The ext.3 series are electricity bills in the name of plaintiff's father. These Ext.'3' series are also prior to institution of the suit. Ext.3/D and 3/E and 3/F are in the name of plaintiff, Kedar Nath Yadav. Ext.3(H) is also in the name of plaintiff. Ext.4/A dated 06.11.1996 Ext.4/B dated 02.09.1996 Ext.4/C dated 02.05.1998, Ext.4/E are in the name of plaintiff which are prior to the institution of the suit. Ext.5 is the letter written by plaintiff to the Premises Officer, State Bank of India which shows that negotiation was going on between the plaintiff and the State Bank of India regarding residential accommodation in the suit property to Sri Amrit Ram Pandya, Regional Manager, State Bank of India. This letter is dated 01.03.1984. Ext.5/A is another letter written by the plaintiff to the Premises Officer in March, 1984 regarding the same purpose. Ext.11 is a letter written by State Bank of India to the plaintiff dated 13.03.1984 for acceptance of tenancy regarding the suit premises. Ext.11/A is another letter dated 28.07.1984 written by State Bank of India in the name of plaintiff terminating the tenancy of Sri A.R. Pandaya with effect from 31.08.1984. Ext.11/B is dated 25.09.1984 written by State Bank of India
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to the plaintiff regarding tenancy. The other documents appears to be after institution of the suit.
23. From the above documentary evidences of the plaintiff, it appears that in the year 1984, the plaintiff was dealing with the suit premises and was inducting tenants. It further appears that it is recorded in the name of plaintiff's wife and the defendant No.1's wife. The plaintiff was also paying the electricity bills. The defendants witnesses D.W.1 at paragraph5, and the defendant himself have admitted that after partition, the parties were living in the house allotted to them separately. It is the case of the defendant that after selling the house in 1987, the plaintiff requested him to allow him to reside in the suit house. It is not believable that when the plaintiff was residing in his house till 1987 how he was dealing the suit property in the year 1984. There is no explanation as to how the suit properties has been entered in the name of wives. How, the plaintiff was paying the electricity bills. Why the notice from Patna Municipal Corporation was issued. The only explanation given by the defendant is that he had full faith on the plaintiff because he is his elder brother but the plaintiff created all these documents. All these explanations or the evidences adduced by the defendants cannot be relied upon in view of the fact that in the year 1984, the plaintiff was dealing with the property and he was inducting tenants. No objection was ever raised by the defendants. When according to the defendant, there had already been partition long long ago in the year 1971, how could the plaintiff dealt with the suit property in the year 1984.
24. The learned counsel for the appellant relied upon 1994 (1) Supreme Court cases 1 (S.P. Chengalvaraya Naidu Vs. Jagannath & Ors.) and submitted that the Judgment and Decree obtained by fraud can
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be set aside. According to the learned counsel, the plaintiff by played a fraud and got the names of the wives entered and also created documents. From perusal of the said decision, it appears that the facts are different. In the present case, the plaintiff has produced the evidences oral as well as documentary. Except the bald statement of the defendant that the plaintiff playing fraud obtained the Judgment and playing fraud created the documents, there is nothing on record to show that by what manner and how the plaintiff played fraud. The explanation given by the plaintiff regarding signature on the registered sale deed and allowing the plaintiff to deal with the suit property is that the defendant have full faith. In my opinion, only on this allegation, the evidences adduced by the plaintiff cannot be wiped out. The documentary evidences, i.e., sale deed produced by the defendant, the tenancy documents (tenancy letters) and even the receipt granted by the State Bank of India has been produced by the plaintiff. All these documents cumulatively proves the fact that the parties are in joint possession of the suit property according to their right title.
25. In view of my above discussion, I find that the plaintiffs have been able to prove that they have got unity of title and possession over the suit property. Therefore, the finding of the learned Court below on this point is hereby confirmed.
26. In the result, I find no merit in this First Appeal, and accordingly, it is dismissed with cost of Rs.10,000/-. The plaintiff- respondent is entitled to realise the cost.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 5thday of September, 2011 Sanjeev/A.F.R.