Patna High Court
Santan Narain Tewari vs Saran Narain Tewari And Ors. on 14 February, 1959
Equivalent citations: AIR1959PAT331, AIR 1959 PATNA 331, ILR 38 PAT 737
JUDGMENT S.C. Prasad, J.
1. This is the plaintiffs appeal against the judgment of the Additional Subordinate Judge of Ranchi. His claim for partition of the properties mentioned in the plaint has been dismissed by the learned Subordinate Judge on the ground that the present suit was barred by res judicata, inasmuch as one of co-sharers, who is defendant No. 15 in this suit, had, in 1927, filed a suit for partition of the same properties against the same persons or their predecessors-in-interest, who were co-sharers in the properties.
That suit was decreed on compromise on the 5th January, 1929. A preliminary decree was drawn up in accordance with the terms of the compromise which were that the partition was to be affected according to the shares claimed by the parties leaving the question of determination of raiyati rights claimed by some of the defendants in some of the lands, open to be decided by another suit.
It was stipulated that at the time of the final decree, the raiyati lands will be allowed to remain in possession of those who were already in possession and as far as possible those raiyati lands should be allotted to those persons. After the preliminary decree, a commissioner was appointed to divide the properties by metes and bounds, which he did. In the meantime, the appellant and defendants 1, 2 and 16 filed one title suit for declaration that the raiyati settlements claimed by some of the defendants in the partition suit, were not valid and binding, and the lands were bakasht.
The further proceeding in the partition suit was stayed. The subsequent title suit filed in 1930 was ultimately decided by this Court on the 2nd February, 1937. According to this decision, raiyati right claimed in the partition suit by some of the defendants was upheld. Thereafter on the 10th May, 1938 the plaintiff of the previous partition suit, who is one of the defendants here, applied for final decree to be passed according to the allotments made by the commissioner, The final decree was sealed and signed on the 7th January, 1939.
On the 20th February, 1940 an application was made for delivery of possession according to the final decree, but some of the judgment-debtors objected under section 47 of the Code of Civil Procedure and ultimately this Court, by its order dated the 23rd September, 1941, held that the execution was barred by time. The present suit was filed by the plaintiff-appellant, who was defendant No. 1 in the previous partition suit, on the 24th November, 1945. The present suit, as I have already stated above, relates to the partition of those very lands which were the subject-matter of the previous partition suit of 1927.
2. In the plaint of this suit the plaintiff-appellant stated, after referring to the above facts in respect of the execution of the previous final decree having been held to be barred by limitation, that the parties continued in joint possession according to their shares, and that there had been no change in his possession, as the previous partition decree proved to be infructuous.
3. Several written statements were filed in this suit by different sets of the defendants raising several points, but in this appeal we are concerned only with the defence of some of the defendants that the present suit was barred by res judicata in view of the previous decision of the partition suit and the final decree passed thereunder. Some of the defendants in their written statements did not object to a decree being passed in this suit, on this-ground.
4. The learned Subordinate Judge upheld the objection of the defendants and dismissed the suit.
5. This is the only point which has been contested before us and it has been contended by the learned Counsel for the plaintiff-appellant that in the circumstances of the case the present suit for partition was not barred and the learned Subordinate Judge had erred in dismissing the suit. It was contended by the learned Counsel that there was evidence in this case which clearly proved that the previous partition had not been effected and the parties had continued to remain in joint possession of the disputed lands as cosharers and, therefore, the plaintiff-appellant was entitled to claim partition of the lands, despite the tact that a final decree had been passed in the previous-partition suit.
He relied upon the cases of Nasrat Ullah v. Mujib-Ullah, ILR 13 All 309, Madon Mohan Mondul v. Baikanta Nath Mondul 10 Cal WN 839, Mansaram Chakravarti v. Ganeshchandra Chakravarti, 17 Cal WN 521, T.C. Mukerji v. Afzal Beg ILR 37 All 155: (AIR 1915 All 1 (2)) and Dilo Rana v. Kunj Behari Prasad ILR 26 Pat 304: (AIR 1948 Pat 244) in support of his contention.
6. On the other hand, the learned counsel for the respondents has urged that the view taken by the learned Subordinate Judge was correct. His contention was that when once final decree had been passed in a partition suit it resulted in the splitting of the joint title, and possession of the co-sharers and the title of each co-sharer became limited to the actual property allotted to him by the decree and consequently the parties did not continue to have joint title in order to enable them to bring a fresh suit for partition which proceeds on the basis of unity and possession of the co-sharers. He has relied upon the case of Nalini Kant Lahiri v. Samamoyi Debya AIR 1914 PC 31 and a Division Bench decision of this Court reported in AIR 1918 Pat 63, Debi Saran Singh v. Rajbans Nath Dubey.
7. It appears to me that the contention of the learned counsel for the appellant is well-founded and must prevail. It is clear from the oral evidence adduced by the parties in this suit that they have continued to remain in possession as before and the allotments made to the parties by the final decree were not brought into effect. P.W. 1, the plaintiff, stated in his evidence that only defendant No. 16 of the previous partition suit had put the decree in execution. He further stated that he had realised 16 annas rental from the tenants of the takhta of Madho Narain.
This proves that actually the co-sharers were not realising rent from the tenants according to the takhtabandis made by the commissioner. In that case the plaintiff should not have realised 16 annas rental of the takhta of Madho Narain. The other three witnesses also supported the plaintiff on the point of payment of rent by the plaintiff alone. The plaintiff produced also his counterfoil receipt books in support of his contention (exhibits 2 and 2/a), which I see no reason to disbelieve. D. W. 3, who was one of the defendants, stated that he could not say what plots had fallen into his share by the previous partition decree.
The significant statement made by him was that he could not say if after the partition decree, there was any change in the possession of the co-sharers. He also could not say if any raiyat of his takhta, according to the previous partition suit, had been recorded under other co-sharers, Jagdish Narain, Ramhari and Brijnarain in the revisional survey records, which had been published after the previous partition decree. Although this witness had stated that he had realised rent from the tenants who had fallen to his share, he did not produce jamabandis, though he admitted that jamabandis and counterfoils were at his house. D.W. 4, another defendant, was unable to say whether the Gangi-Jamuni lands of village Arsandah, one of the lands in dispute, had been allotted to his takhta. D.W. 5, son of defendant No. 15, has made the position clear by admitting that in village Lem a portion of the rental of one tenant had Been allotted to his takhta, but he did not remember the name of the tenant, nor could he say the rental payable by that tenant.
He never realised rent from that tenant He said that some lands out of his takhta had been recorded in other's names and he had been also recorded in the survey in respect of the lands allotted to other co-sharers. Although according to the previous partition decree he ought to have paid rent of Rs. 9/12/- to Jagdish Narain, Ramhari and Brij Narain, he had not paid this rent as yet. Again from the evidence of D.W. 6, Banwari Narain Tewari, who had executed the decree in the previous partition suit which had been held to be barred by limitation, it appears that one raiyat named Lokenath Mahto had been allotted to the plaintiff and defendants 1 and 2, but in the survey record of rights this tenant had been recorded under his khewat. Again, Sheotahal was another raiyat who had been allotted to the takhta of the witness, but in the survey record of rights he had not been shown under him and he had never realised rent from him. It is another co-sharer, Sildhar Narain, who collects rent from this tenant.
Again, Balgobind was given to him as tenant, but he does not realise rent from him. Ganga-Jamuni land in village Arsandah had been allotted to his takhta, but the plaintiff and defendants 1 and 2 had dealt with this land by settling it with Budhu Teli whose sons are in possession of the same land. In village Boreya, another village which is in dispute in this suit, one land known as Ken Chaura had been allotted to him by the previous partition decree, but another co-sharer had settled it with some Teli, who is in possession thereof. Dukhan Sahu was a raiyat allotted to him, but Awadh Narain, another co-sharer, realised rent from him.
Co-sharer Sildhar Narain realised rent from Jado and Sanka, although, according to the previous partition suit, this witness should have realised rent from them. There can be no doubt, therefore, that the previous partition final decree never became effective and partition was not actually brought to completion. That being the position, it seems to me that the plaintiff was entitled to bring a fresh suit for partition.
8. The claim for partition is a recurring cause of action and unless the division of the joint property has been brought to completion by actual delivery of allotments, each party has got right to claim fresh partition of the land, and that right is not lost. In the case reported in ILR 13 All 309 a decree had been obtained in 1860 by one of the co-sharers for partition, but that decree had not been acted upon. In 1871 another order for partition had been obtained by another co-sharer, but that too appeared to have remained inoperative.
In 1883 another suit was brought for partition in respect of the same property. The defendants resisted this claim on the ground that it was barred by res judicata. This objection was negatived and it was observed that the decree of 1860 only operated as res judicata to any claim or defence that was set up, or should have been set up, at that date, as for instance, the allegation that the whole of the Ilaka had been divided privately by the ancestors of the parties much earlier and from the date of the partition each party had held proprietary possession of the entire divided villages without the interference of any other. In other words, the decree of 1860 settled the rights of the parties as they were at that date and could not be questioned. But that decree could not operate as res judicata on any question arising as to rights of the parties acquired since that date. Then their Lordships observed as follows:
"It appears to us that when a decree declaring a right to partition has not been given effect to by the parties proceeding to partition in accordance with it, it is competent for the parties or any of them, if they still continue to be interested in the joint property, to bring another suit for a declaration of right to a partition in case their right to partition is called in question at a time when, by reason of limitation or otherwise, they cannot put into effect the decree first obtained. In this respect suits for declaration of right to partition differ from most other suits. So long as the property is jointly held so long does a right to partition continue".
9. In the case reported in 10 Cal WN 839 it appears that the previous suit for partition brought by the plaintiffs in respect of certain plots was compromised and it was settled that those plots were to be divided in a certain manner. An amin was appointed to effect a partition, but he did not partitioned the disputed plots. Subsequently the parties did not appear and the execution proceedings then pending were dismissed for default. Thereafter a fresh suit was instituted for partition of the same plots. The defendants raised the plea that the suit was barred. Their Lordships quoted the aforesaid observations made in the Allahabad Case and held that the fresh suit was maintainable.
10. In the case reported in ILR 37 All 155: (AIR 1915 All 1(2) ) again the above two cases were followed. In this case the plaintiff sought partition of a house held in joint tenancy. The suit was compromised, the defendant agreeing to transfer his rights to the plaintiff for a consideration and accordingly the suit was dismissed. The compromise was not given effect to, and thereafter the plaintiff brought a second suit for partition. It was held that as soon as the defendants failed to carry out the compromise, the parties were relegated to their rights as they existed prior to the compromise and, therefore, the second suit for partition was not barred. It was observed that a right to bring a suit for partition, unlike other suits, was a continuing right incidental to the ownership of joint property and that it might be that at one time the desire for partition, might cease, but circumstances might again occur which made it desirable or necessary that partition should take place.
11. In the other Calcutta case reported in 17 Cal WN 521, it was emphasised that the cause of action for partition of joint property was a constantly recurring one and the above cases of ILR 13 All 309 and 10 Cal WN 839 were referred to and followed. It was also observed that if a suit for partition had been brought, but for some reason the properties had not been actually divided by the decree made therein, it was open to any of the joint owners to maintain a subsequent suit for a partition.
The real questions, which had arisen in this Calcutta case, were as to whether the properties, which were included in a previous partition suit but had been left undivided by the consent decree made therein, could be partitioned afresh, and secondly whether those properties, that were not included in the previous partition suit, could be the subject-matter of a fresh partition suit. It was held that the subsequent partition suit was maintainable in respect of both classes of properties.
12. In the Patna case reported in ILR 26 Pat 304: (AIR 1948 Pat 244) in the previous partition suit one of the defendants had died and his heirs had not been brought on the record with the result that the suit had abated and the plaintiff withdrew the suit with permission to bring a fresh suit. Thereafter he filed the second suit for the same relief as in the previous suit. It was contended on behalf of the defendants that the second suit was not maintainable. It was held that partition was a recurring cause of action so long as the properties remained joint and, therefore, the plaintiffs' right of partition subsisted even after the abatement of the previous suit for partition by the plaintiff. The two Allahabad cases and the Calcutta cases reported in 10 Cal W.N. 839 were relied upon.
The argument on behalf of the defendants in that case was that the abatement of the previous partition suit had the effect of making the second suit not maintainable, because it was against a suit for partition, that is to say, exactly the same suit which had proved infructuous in the previous litigation between the same parties.
It was observed that it had not been determined by a competent court that the property was either partitioned previously or that the plaintiffs had by any process known to law lost their right of partition.
13. The learned Counsel for the respondents has, however, contended that the facts of all the above cases were different and it was clear from them that there had been no final decree in any of those cases and, therefore, it was on account of this reason that it had been held that there had been no splitting of the title of the cosharers. Consequently anyone of the cosharers was entitled to claim partition of the lands afresh.
I have already referred to the two cases upon which the learned Counsel for the respondents has relied. The case of AIR 1914 P.C. 31, however shows that in that case the commissioner had measured out the declared shares of the parties and each party had been put in possession of his share. It was, therefore, held by the Privy Council that the fresh suit for partition, on the ground that the co-sharers had been allotted much more than their proper share, was not maintainable.
14. In the Patna case reported in AIR 1918 Patna 63 it appears that the partition had taken place so far back as 1893 and each party had separately enjoyed the estate allotted to him for 25 years. It was, therefore, held that the second suit for partition was not maintainable and the above Privy Council ruling was followed.
It was, in those circumstances, pointed out that the principle was that the effect of the final decree of civil court for partition was to put an end to the co-tenancy and to vest in each person or croup, a sole estate in a specific property or allotment and that the lay did not provide for a suit in the civil courts under which these separated estates could be divested and a co-tenancy recreated for the purpose, of making a fresh partition.
15. In the present case, as already pointed out, the parties had not been put in possession of the separate allotments made by the final decree but the previous state of affairs had continued so long as actual delivery of allotments had not been made. I do not think the actual division of the title and possession of the cosharers can be said to have been completed in order to limit the title of each cosharer to the particular allotment made to him by the partition decree.
Although it is true that the cases relied upon by the learned Counsel for the appellant do not appear to have been decided in similar circumstances as those of this case, but the principle of those decisions appears to have been that a cosharer has got a right to seek fresh partition if for some reason the previous decree for partition becomes unenforceable so that there has not been actually breaking up of the title and possession of the cosharer by actual delivery to each of them of the specific portion of the joint property allotted to him by that decree.
This principle follows from the fundamental concept of joint ownership and possession giving each joint owner a right to transform this joint ownership and possession into several and independent ownerships and possession but this transformation cannot in the eye of law be held to have been brought about unless and until the entire process of transformation starting from the ascertainment of the share of each joint owner and ending in the actual delivery to him of the property given to him forming his share of the joint property, has been gone through: so long as this does not take place, the title and possession of all the cosharers continues to be joint.
It is only when the last stage has been completed that each owner ceases to be a cosharer with the other. The matter, of course, might be different if in a particular case the facts proved show that the person seeking fresh partition is guilty of any conduct amounting to fraud on his cosharers or on the court, preventing directly or indirectly thereby the completion of the previous partition suit by actual delivery of the properties allotted to each cosharer by the previous decree.
That, of course, is not the case here. On the other hand, the evidence justifies the conclusion that the parties in this case treated the previous decree to be infructuous and continued to remain in possession as cosharers of the properties as before. In my opinion, the view taken by the learned Subordinate Judge is erroneous. The present suit is not barred by res judicata.
16. There is, of course, one aspect of the matter which must be clarified. In the title suit brought by the plaintiff against some of the defendants the relief sought was to set aside the settlements of some of the lands which were claimed by some of the defendants of the previous suit as having become their raiyati lands and, therefore, not open to partition as Bakasht; that suit was decided after contest between the parties in favour of the defendants.
Those lands, as it appears to me from the judgment of the learned Subordinate Judge, has again been claimed as bakasht in this suit. This cannot be allowed to be done by the plaintiff. The decision in the previous title suit of 1930 must be held to operate as res judicata in so far as this matter is concerned.
It is not known whether the proprietary rights of the parties of those lands have vested in the State of Bihar. If the vesting has taken place, the parties will not be entitled to divide those rights.
17. In the result, the appeal is allowed. All the properties except those which were the subject-matter of the title suit of 1930 and the other raiyati lands held by the raiyats under the khewats in dispute if vesting of these proprietary rights under the Bihar Land Reforms Act has already taken place, will be partitioned by a commissioner to be appointed by the court below. The judgment of the court below is set aside and the suit is decreed in part. Parties will bear their own costs, throughout.
Misra, J.
18. I agree.