Patna High Court
Ganesh Sahu And Anr. vs Dwarika Sao And Ors. on 3 August, 1989
Equivalent citations: AIR1991PAT1, AIR 1991 PATNA 1
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This First Appeal arises out of a judgment and decree dated 23rd December, 1976 passed by Shri Arun Chandra Das, Additional Subordinate Judge, IIIrd court, Palamau at Daltonganj in P.S. No. 25 of 1976, whereby and where under the said learned court dismissed the plaintiff-appellants suit.
2. The plaintiff-appellates filed the aforementioned suit for partition as against the defendants-respondents, claiming therein four shares out of twenty four shares therein in favour of plaintiff Nos. 1 and 3 shares out of 24 shares in favour of the plaintiff No. 2.
3. The relationships of the parties appears from the following genealogical table.
Devi Dayal Sao (Dead) ______________________________________|_____________________________________ | | | Tulsi Sao Ganpat Sao Ramrattan Sao (dead) (dead) (dead) (Mst.
| | Kabilaso
| | Sahun)
Rambilash Sao |
(dead) |
________|____________ |
| | |
Ganesh Sao Dwarika Sao |
P.1 D.1 |
| (Smt. Amraut |
| Sahun) Defen- |
| dant No. 7 |
|_________________________ |
| | |
W.1 W.2 |
| ____________|____ |
| | | |
Sadhusaran Surajdeo Pd. Chandradeo |
Saw, P. Pd. Gupta |
____________________________|_______________________
| | | |
(1) Ram- (2) Ramdhani (3) Rameshwar Munesh Sahu
Keshwar Sahu Sahu (dead) Sahu (dead) D.3
(dead) |_________________
| |
Ramjit Sahu Raghunath
D.W. Sahu D.7
_______________|_________________ |_______________________________
| | | | | |
Sugriv Baldeo Akshyabar Ayodhya Bishwanath Jainarayan
D.9 D.10 D.11 D.4 D.5 D.6
4. According to the plaintiff, Kabilasho Sahun, wife of Ram Ratan Sao inherited eight shares of her husband out of the aforementioned 24 shares and had been in possession thereof, but later on sold away her half share to Jaso Sahun, first wife of plaintiff No. 1 and mother of the plaintiff No. 2 and other half shares to Smt. Amrawati Sahun wife of defendant No. 1. Later on Jaso Sahun also sold her shares to defendant Nos. 8 to 11 and Amrawati Sahun also sold her one share to them.
5. Plaintiffs further case is that returns were filed by the intermediaries but rent in respect of some of the lands were assessed in the name of the tenants without the knowledge of the plaintiffs. Plaintiffs in para-
graph 9 of the plaint admitted that that they as also the defendant Nos. 1 to 11 are in separate possession of the lands for convenience, though the lands in suit are jointly possessed by them and the same have not been partitioned by metes and bounds.
6. In the aforementioned suit, a joint written statement was filed on behalf of the defendant Nos. 2, 3, 4, 5, 6, 7, 9, 10 and 11. In the said written statement, the aforementioned defendants categorically raised a plea of previous partition. Another written statement was filed by the defendant Nos. 1 & 8. During pendency of the suit, the defendant No. 7 died and the substituted heirs of the said defendant also filed a separate written statement. The defendant Nos. 1 and 8 supported the case of the plaintiff to the effect that the lands in question have all along remained joint. In the written statement filed on behalf of the defendant Nos. 2 to 7 and 9 to 11 it was inter alia stated that Rambilash Sao son of Tulsi Sao, Ramdhani Sao, Rameshwar Sao and Muneshwar Sao son of Ganpat Sao and Ranjit Sao son of Rameshwar Sao had the following share in the suit property : --
"1. Mauza Danda Tola Kazarma 4/annas share.
2. Mauza Danda Tola Kikra Ket land 95.81
3. Mauza Danda Khash share 6 pie.
4. Mauza Korts 8 annas and 3 pie 15 Karant share.
5. Mauza Polpol 6 pie share.
6. Mauza Rampur 11 pie 12 Kerant share.
7. Mauza Bahndar 3 annas share.
8. Kath land at Mauza Danda Tola, Kazarma share 3 pie 15 Kerant 15 Masant area 20 Bighas in plot No. 706 to 716."
7. According to the said defendant Mst. Kabilaso Sahun widow of late Ram Ratan Sao had 1/3rd share. Which was sold by her to Jaso Sahun and defendant No. 8 in respect of land situated in Tola Kikara and Kararma of Mauza Danda to the extent of 4 annas and not the entire land and she died in the year 1349 F.S. and all the property left behind was divided in equal share between the descendants of Tulsi Sao and Ganpat Sao and Jaso Sahun or defendant No. 8 have no concern with these lands and as such the same could not form the subject matter of suit for partition.
8. According to the said defendant, the properties have been divided and partitioned at the instance of Kabilaso Sahun who asked for the partition. The said defendants at the foot of their written statement have appended different schedules of lands which were allegedly allotted to different parties. They have further alleged that the defendant Nos. 4 to 6 had made purchase of some lands as per deed of sale dated 10-9--1942, which has been mentioned as Schedule 'Ja' of the said written statement and out of that certain lands have been sold by defendant Nos. 9, 10 and Vanu Pratap Sao, Deo Pratap Sao, Rajendra Sao, and Surakmukhi Sao on 3-2-1964.
9. According to the said defendants, therefore, no other defendant has any concern with the said lands and, thus the said lands have wrongly been included in the schedule of the plaint for partition.
10. Various further facts have been stated in the said written statement which need not be reiterated herein again, as the respective case of the parties have been stated in details by the learned court below in its judgment.
11. Minor defendants Surajdeo Sao and Chandradeo Prasad Gupta filed a separate written statement through their guardian ad litem, who supported the case of the plaintiffs.
12. The defendant Nos. 13 to 15 also filed separate written statement and inter alia contended that the plaintiffs have filed the said suit in the shape of a partition suit although in effect and substance, the same was a suit for declaration of title. The said defendants have denied that there had been any unity of title and possession amongst the parties to the suit, and as such contended that a suit for partition was not maintainable.
13. The learned trial Court framed as many as nine issues on the basis of the pleadings of the parties, as also on the basis of averment made on their behalf, which are as follows:--
"1. Is the suit, as framed, maintainable?
2. Have the plaintiffs valid cause of action for the suit?
3. Is the suit barred by principle of estoppel waiver and acquiescence?
4. Whether the suit is barred under section 35 of the Bihar Land Reform Act?
5. Whether the suit is bad for misjoinder or non joinder of the parties.
6. Whether, there is a unity of title and unity of possession of the parties in suit lands or whether Khata Nos. 138 and 245 are the separate lands of the defendant Nos. 13 to 15 and land of Khata Nos. 147 and 148 and are the separate lands of the defendant Nos. 4 to 6, as alleged by the concerned parties?
7. Whether the plea of previous partition, as alleged by defendant Nos. 4 to 6, is true?
8. Whether the land in suit are liable for partition and if so, to what extent and to which of the party?
9. To what relief or reliefs, if any, plaintiff are entitled?"
14. The learned Court below for the sake of convenience divided the parties set wise, in the following terms. Plaintiff No. 1 is one set, while plaintiff No. 2 is another set who are represented by the different lawyers. Defendant Nos. 1, 2, 7 series and 8 to 11 from one set represented by one lawyer and is named as defendant first set. In this set defendant No. 11 was minor and was represented by his natural guardian-father defendant No. 2. Other minor, namely, defendant Nos. 17 and 18 are represented by guardian ad litem and they were termed as defendant 2nd set. Defendant Nos. 4 to 6 were represented by one set of lawyer and they were termed as defendant 3rd set, Defendant Nos. 13 to 15 were represented by one lawyer and they were termed as defendant 4th set.
15. He, however, in paragraph 26 of his judgment stated that the defendant Nos. 4 to 6 are the only contesting defendants while other defendants are supporting the plaintiffs like pro forma defendants.
16. The learned Court below held that the story of previous partition as alleged by the contesting defendants, in their written statement is correct, and as such dismissed the plaintiff appellants suit.
17. Mr. K. K. Sahay, the learned counsel appearing on behalf of the appellants, firstly submitted that the plaintiffs have been prejudiced in view of the finding of the learned trial Court that the defendants Nos. 4 to 6 were the only contesting defendants and other defendants were supporting the case of the plaintiffs, although, in fact, various other defendants have also filed written statements contesting the claim of the plaintiff, and, in fact, as noticed hereinbefore, some defendants filed their written statement jointly with defendants Nos. 4 to 6.
18. The learned counsel contended that from this alone it would appear that the approach of the learned Court below was wrong as he analysed the evidence adduced on behalf of the parties from that angle enough of vision, and as such his judgment is vitiated.
19. The learned counsel further criticised the judgment of the learned Court below, inter alia, on the ground that it has come to the finding that there has been a previous partition in the year 1345 F.S., in absence of any pleading" to that effect in the written statement. The learned counsel further contended that the learned Court below failed to take into consideration that the defendants did not plead the factum of Panchyati as also the time when the same took place and as such, according to the learned counsel, the evidence adduced on behalf of the defendants to that effect was inadmissible in evidence. The learned counsel, further, submitted that true it is that the parties had been in separate possession but that does not mean that theft had been a partition by metes and bounds. According to the learned counsel, the onus to prove partition by metes and bounds was upon the defendant, inasmuch as, by merely dividing the share, the properties are not admitted and the parties continued to remain joint so far as the properties are concerned.
20. In this connection, the learned counsel has placed strong reliance upon a decision of the Supreme Court reported in AIR 1986 SC 79 (Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe).
21. Mr. Debi Prasad, the learned counsel appearing on behalf of the contesting defendants-respondents, on the other hand, submitted that although, the contesting defendants had not pleaded the time when the partition took place, but in view of the fact that the other details with regard to the factum of partition have been pleaded, it cannot be said that the plaintiffs were prejudiced thereby.
22. The learned counsel further submitted that the learned Court below correctly appreciated the evidence adduced on behalf of the parties and the finding of fact arrived at by the learned Court below should not be disturbed by this Court.
23. In view of the aforementioned rival contentions the following question arise for consideration in this appeal:--
(A) Whether the plaintiffs have been prejudiced in any manner by reason of the observations of the learned trial Court that the only contesting defendants are defendants Nos. 4 to 6 and other defendants have been supporting the case of the plaintiffs?
(B) Whether the findings of the learned Court below to the effect that partition took place in the year 1349 F.S. was based on inadmissible evidence?
(C) Whether the onus to prove the factum of previous partition was upon the defendants and whether there had been a previous partition as alleged by the defendants?
Re question No. A.
24. True, it is that the learned Court below in paragraph 19 of the judgment proceeded on the basis that most of the defendants have been supporting the case of the plaintiffs. It is also true that a joint written statement was filed by the defendants Nos. 2 to 7 and 9 to 11, but despite the same, the learned Court below Categorised the defendants Nos. 4 to 5 atone as contesting defendants and others as pro forma defendants. But, in my opinion, as from a perusal of the judgment of the learned Court below, it would be evident that he has taken into consideration the evidence adduced by the different sets of the defendants separately and have analysed their evidence while deciding issues Nos. 6 and 7 independent of the aforementioned consideration, it Cannot be said that the plaintiff-appellants were prejudiced thereby.
25. In any event, in the instant case the material issues which were relevant for the purpose of the suit being issues Nos. 6 and 7, the question of the plaintiff being prejudiced the observation of the learned Court below that except defendants Nos. 4 to 6, all other defendants had been supporting the case of the plaintiff does not arise.
Re-Question 'B'
26. It is true that that the contesting defendants in their written statement did not raise a specific plea as to when and how the alleged previous partition was effected. From a perusal of the written statement filed by the defendants Nos. 2 to 7 and 9 to 11, it would appear that they stated the shares of the parties to the suit and/or their respective predecessors-in-interest in great details and further described the properties allotted to each of them in different schedules at the foot of the written statement. In paragraph 8 of the written statement, the said defendants categorically stated that the first partition took place at the instance of Kabilaso Sahun, which in turn means that the said partition must have taken place before 1349 F.S. when, according to the statements made in paragraph 7 of the written statement Kabilaso Sahun died.
27. They have further in their written statement as mentioned hereinbefore, stated in great details about the factum of partition. There is no doubt that the facts upon which a suit is based or a defence is raised should be specifically pleaded. However, it is well known that it is not desirable to place any undue emphasis in form of the pleading but the substance of the same should be considered.
28. It is also well known that a pleading particularly mufassil pleading should not be read in a pedantic manner and should be considered in its entirety. In the instant case, the plaintiffs accepted the fact that parties have been all along possessing the suit properties separately. According to the plaintiffs, such separate possession was effected for the sake of convenience, whereas according to the defendants the parties have been possessing different plots of lands in view of a partition by metes and bounds. It is, therefore, clear that the parties are at least ad idem on one point that some sort of arrangement was entered into amongst the parties in order to enable them to possess different plots of lands separately. It is also admitted that the share of the parties in the properties in suit was defined and various transactions took place in terms of the defined share of the suit properties.
29. The question, as to whether the evidence adduced on behalf of the contesting defendants to the effect that partition took place by holding a Panchayati and in the year 1345 F.S. were admissible in evidence or not, in ray opinion, become wholly academic in view of the fact that thereby the plaintiffs were not at all prejudiced as from a plain reading of the written statement filed on behalf of defendants Nos. 2 to 7 and 9 to 11, it is clear that the partition took place as alleged by them prior to 1349 F.S.
30. As mentioned hereinbefore, Issue Nos. 6 and 7, which relate to the factum of previous partition had to be answered by taking into consideration the evidence adduced by all the parties to the suit.
31. The parties knew that the fate of the case mainly depends upon the finding of the Court in respect of aforementioned issues Nos. 6 and 7 as they had knowledge about the respective cases of the parties. It is not a case where it can be said that the parties were taken by surprise in absence of a pleading. As a matter of fact, the learned Court below, has come to the finding about the previous partition on the basis of various circumstances including the admission made of the plaintiff himself.
32. In Ram Sarup Gupta (dead) by L.Rs v. Bishan Narain Inter College reported in AIR 1987 SC 1242, it was held as follows (at p. 1247 of AIR): --
"The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
33. In view of the finding aforementioned, it is held that the plaintiffs were not prejudiced because of lack of pleadings in the written statement of the defendants Nos. 2 to 7 and 9 to 11 about holding of Panchayati and the year of partition as in effect and substance defendant had pleaded the material facts by stating in details the effect of previous partition and in respect whereof specific issues were framed and the parties had been given opportunities to lead evidence in respect of the said issues.
Re-Question No. 334. Under the Hindu Law, there is a presumption of jointness and the onus to prove disruption in the joint family lies upon a party who sets up that plea. The presumption of jointness, can be rebutted either by direct evidence or by course of conduct of the parties, especially in a case when the alleged partition took place long time back.
35. In the instant case, the plaintiffs have themselve admitted that there had been a disruption in the joint family and the parties have been possessing the properties separately.
In Mt. Beti v. Sikandar Singh report in AIR 1928 All 39, it was held as follows:
"A mere ascertainment of shares of the members of a joint family is not conclusive evidence of separation, but there is a presumption that there was separation and the burden of proving that notwithstanding the ascertainment of shares of the various members of the family, the family continued to be joint family lies on the person making the assertion."
36. Mr. K. K. Sahay, the learned counsel appearing on behalf of the appellants has stated hereinbefore accepted the fact that there has been a severance in the joint status and the parties had been possessing the lands separately for sake of convenience.
37. Even in a case where the partition has not been effected by an instrument in writing, the question when arise as to whether there has been a partition or not, the intention of the parties to separation and separate possession can be inferred on the basis of the cumulative effect of all the facts and circumstances of the case. In a case where the transaction is old and no contemporaneous document is maintained and when most of the effective participants in the transaction have passed away, it is permissible to fill up gaps in absence more readily by reasonable inference from the evidence on record.
38. There cannot be any doubt that the clearest case to prove partition is where the members of a joint family divide their property by metes and bounds and each member is in separate possession and enjoyment of the share allotted to him on partition and out right partition can be proved or may be inferred inter alia on the basis of arrangements made by the parties which are of a permanent nature.
39. In view of the fact that the severance of the joint family had been accepted by the plaintiffs, evidently, it was for them to prove that the parties remained joint despite the fact that the parties are in separate possession of the properties in question.
40. The decision of the Supreme Court in Bhagwant P. Sulakhe's case (AIR 1986 SC 79) (supra) relied upon by Sri Sahay, was rendered in a different situation; although, there cannot be any quarrel with regard to the proposition of law laid down therein.
41. The question as to whether the properties continued to be joint properties or the properties have been partitioned by mates and bounds are essentially questions of fact, such questions of fact have to be decided on the basis of materials available on record in each case.
42. In the instant case, not only there has been an admission in the plaint itself that parties have been possessing the lands separately but the plaintiff who examined himself as P.W. 8 admitted that even he had purchased some lands from Kabilasho Sahun in the name of his wife and his brother's wife, out of which they sold some of the lands to defendant No. 7, defendant No. 9, Sugriv Sao etc. He further affirmed that he had cleared the jungle and reclaimed some Gair Mazrua lands and had been possessing the same separately.
43. The plaintiff in paragraph 25 of his deposition in unequivocal terms admited that all the co-sharers have got separate kitchen, ploughs and each co-sharers have separate equipments for cultivation and each bear their own expenses. He further admitted that he had sold some of the lands in suit by executing registered sale deed wherein he had stated specific boundaries in respect of lands sold. Further, he admitted separate residence, mess, payment of separate Chowkidari taxes etc. by each co-sharers separately. He further admitted that separate lands were claimed at the time of vesting Zamindary, and he had filed the aforementioned suit for partition only for such lands which are in excess of the land mentioned in 'M' form i.e. in respect of lands for which rent have been assessed.
44. In paragraph 49 of his deposition, he further categorically admitted that the lands purchased from Kabilaso Sahun are not joint.
45. It is interesting to note that P.W. 9, who is plaintiff No. 2 did not examine himself on the point of jointness.
46. From the evidence adduced on behalf of the parties it is clear that not only they have separate residence mess and have been in possession of the lands operately, but they have also been making independent transaction in respect of lands in their respective possession for a long time, some deeds of sale have been executed in the year 1942, or would be evident from Exhibits AA, AA/1 and AA/2. From Exhts. 2, it is evident that even the plaintiff purchased certain lands from Kabilaso Sahun. It further appears that the parties have got their names mutated separately.
47. As a matter of fact, in respect of lands belonging to Kabilaso Sahun, which had been alloted to her share and order of mutation was passed by the competent authority despite objection which is also evident from Annexure-4. D. W. 2 stated in great details, as to how a partition by metes and bounds was effected at the instance of Panchas. He categorically stated that Ram Ratan Sao died in the year 1345 F.S. and three months thereafter the partition took place. The said witness further stated in his deposition the reason for partition that is filing of a mutation application by Kabilaso Sahun after the death of her husband, to which the parties objected and that was the reason of partition. It is also clear that ultimately mutation was done in favour of Kabilaso Sahun in respect of her 1/3rd share.
48. Other witnesses examined on behalf of the parties had also stated about the improvements made by them. Some of the witnesses like D.W. 7, who was defendant No. 7A having been substituted after the death of original defendant No. 7 categorically stated that he had been cultivating the same land which the original defendant No. 7 had been cultivating.
49. D.W. 8 (defendant No. 2) also stated that the suit lands had been partitioned by metes and bounds. Even, the other witnesses have admitted that there had been a partition by metes and bounds about 32 years back.
49A. The learned counsel appearing on behalf of the apellant did not question the aforementioned findings arrived at by the learned Court below.
49B. In Arjun Mahto v. Monda Mahjtain reported in AIR 1971 Pat 215 a Division Bench of this Court has held that if the parties for a long time have independent management of properties which by themselves, no doubt, not conclusive but the cumulative effect of such fact may show, that there had been a partition between the brothers during their lifetime.
50. In the instant case, as noticed hereinbefore, it is evident that there has been a disruption in the joint family. The said fact coupled with other evidence regarding separate possession both in respect of agricultural land and residence, are on record, and, in this view of the matter, there can not be any doubt that there had been a previous partition in respect of properties in suit.
51. Further, as noticed hereinbefore, even the plaintiff who have been claiming titles in respect of their lands in possession and also asserted independent reclaiming of some lands.
52. Taking thus into consideration, all aspects of the matter, I am of the view that there is no merit in this appeal. It is accordingly dismissed. However, in the facts and circumstances of the cases, the parties shall bear their own costs of this appeal.