Allahabad High Court
Ganga Prasad Rai vs Kedar Nath Rai And Another on 13 September, 2019
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Reserved Court No. 07 Case :- SECOND APPEAL No. - 323 of 1999 Appellant :- Ganga Prasad Rai Respondent :- Kedar Nath Rai And Another Counsel for Appellant :- S.K.Chaturvedi,R.N Tripathi Counsel for Respondent :- R.K.Chitragupta,A.N Srivastava,Pradeep Narain Pandey,Ramanand Pandey,S.N. Srivastava Hon'ble Ajay Bhanot,J.
1. This second appeal arises out of the judgment and decree dated 19.01.1999 and 25.01.1999 respectively, entered by learned District Judge, Siddharth Nagar, in Civil Appeal No. 40 of 1998, Kedarnath Vs. Ganga Prasad Rai & another, which partly modifies and largely upsets the judgment and decree dated 26.03.1998 and 07.04.1998 respectively rendered by the learned II-Additional Civil Judge (Junior Division), Bansi, Siddharth Nagar in Original Suit No. 295 of 1980, Kedar Nath Vs. Ganga Prasad Rai and another.
2. This second appeal has been instituted by Ganga Prasad Rai, who is arrayed as defendant no. 1 in the suit.
3. Civil action was brought by the plaintiff-respondent no.1, against the defendant no.1-appellant and defendant no.2-respondent no.2, by instituting Original Suit No. 295 of 1980, Kedar Nath Vs. Ganga Prasad and others, before the IInd Additional Civil Judge (Junior Division), Bansi, District Basti (Siddharth Nagar). The genealogical table set out in the plaint which describes the respective positions of the parties to the suit is extracted below.
Vishwanath Rai
Kedar Nath Ganga Prasad Rai Parmatma Prasad Rai
4. The plaintiff-respondent no.1, defendant no.1-appellant and defendant no.2-respondent no. 2 are real brothers. The plaint asserts that the property in dispute devolved upon the parties by inheritance was partitioned in three equal parts. The parties came in possession of their respective shares pursuant to the said family settlement. The land situated in Plot Nos. 2913 and 2914 marked as ABCD in the map at the foot of the plaint, constitutes the disputed property in the suit. According to the plaint, the plaintiff-respondent no. 1 is the sole owner of the said property as it was apportioned to him in the partition.
5. The defendant no. 1-appellant threatened to force himself on the disputed land, made encroachments and raised constructions thereon, which are marked as K L M N and X Y P Q R in the map attached at the foot of the plaint.
6. On this cause of action, the suit was instituted by the plaintiff -respondent no.1 seeking various reliefs. The plaintiff-respondent no.1 prays that the defendant no. 1- appellant, be permanently injuncted from interfering in the peaceful possession of the plaintiff-respondent no.1, over the disputed plot of land marked as ABCD in the map at the foot of the plaint.
7. A mandatory injunction against defendant no. 1-appellant is sought, after demolition of the constructions marked as K L M N and X Y P Q R made by defendant no. 1-appellant over the disputed plot. Finally, the relief clause prays that the possession of the parts of the land on which the disputed constructions have been raised by the defendant no. 1-appellant, be made over to the plaintiff-respondent no. 1.
8. The alternative prayer is to partition the disputed property i.e. the plots' numbers' 2913 and 2914.
9. The defendant no. 1-appellant entered his opposition to the plaint in the written statement. In the written statement, the defendant no. 1- appellant categorically denies all allegations of encroachment of land and asserts that the disputed plot of land A B C D fell to the share of the defendant no. 1-appellant in the partition. True status of the shares of respective parties after the partition is provided in the map at the foot of the written statement.
10. The written statement references the the judgement of the consolidation officer dated 20.03.1986 rejecting the claim of the plaintiff-respondent no. 1, on the disputed property, on the foot that the family partition had already taken place between the parties.
11. The additional written statement, states that the plaintiff-respondent no.1 had not referenced the ancestral house in plots nos. 2911 and 2912 in the plaint which was also part of the partitioned ancestral property.
12. The following issues (which are relevant at this stage) were framed by the learned trial court:
"1. Whether the plaintiff is the sole owner of the area depicted as A B C D in the map at the foot of the plaint and is entitled to a permanent injunction?
2. Whether the defendant no. 1 made the disputed constructions marked as X Y P Q R and K LM N in the map at the foot of the plaint were made by the defendant no. 1 in the land belonging to the plaintiff and the same were liable to be demolished?
3. Whether as an alternative relief, the plaintiff was entitled for 1/3 part Plot Nos. 2913 and 2914 (current Plot No. 1418 and 1419 respectively), after a fresh partition?"
13. The learned trial court records that the total property bequeathed by inheritance upon the plaintiff-respondent no.1 as well as defendant no.1-appellant & defendant no.2-respondent no.2, was constituted in plots' nos,. 2911/0-5-2, 2912/8-0, 2913/0-8-1 and 2914/0-5-2 Dhur. The total area comprised in all four plots was 26 Biswa 05 Dhur. The parties are real brothers. A family partition divided the property into equal three parts. The parties came into possession over their respective shares after the partition.
14. Employing simple mathematics, the learned trial court concluded that an area of 8 Biswa and 15 Dhur, devolved upon each brother by inheritance and partition. Appreciation of documentary evidence and admissions of the parties established that Plots No. 2911 and 2912 were Abadi lands, while plots no. 2913 and 2914 were recorded as Bhumidhari lands.
15. The learned trial court then enquired into the critical issue whether the disputed plot marked as ABCD in the map at the foot of the plaint, fell to the share of the plaintiff-respondent no. 1 in the partition and the alleged encroachment by the defendant no.1-appellant.
16. Partition of ancestral house situated in plot nos. 2911 and 2912 was confirmed by the learned trial court. With the aid of the commissioner report and the oral evidence in the record, the learned trial court found that the area to the extent of 8 Biswa was apportioned to the plaintiff-respondent no.1 in plots' nos'. 2911 and 2912 in the family partition. The defendant no. 1-appellant was allotted 1 Biswa 2 Dhur in the plots' nos'. 2911 and 2912. While an area of 3 Biswa 6 Dhur in plots' nos'. 2911 and 2912 fell to the share of defendant no. 2-respondent no. 2.
17. The learned trial court also held that the parties are in settled possession over their respective parts in plots' nos'. 2911 and 2912.
18. There was a difference in the areas apportioned to the parties in the ancestral house in plots' nos'. 2911 and 2912 in the partition. Consequently, the parties, had to adjust their respective shares in plots' nos'. 2914 and 2913 to make the distribution equitable. The entitlement of each party being 8 Biswa 15 Dhur.
19. The plaintiff-defendant no. 1, was only entitled to 9 Dhur in plots' nos'. 2914 and 2913, since he got a lion's share of the area in plots' nos'. 2911 and 2912. Additional area, was given to defendant no. 1-appellant and defendant no. 2-respondent no.2 in plots' nos'. 2913 and 2914 to cater to the shortfall which arose as a result of the major share being allotted to the plaintiff-respondent no.1 in plots' nos'. 2911 and 2912. The allotment to the defendant no. 1-appellant in plots' nos'. 2913 and 2914 was 7 Biswa 12 Dhur which was his entitlement.
20. The learned trial court also found that the parties were in possession of their respective parts in plots' nos'. 2913 and 2914.
21. The share to which the plaintiff-respondent no. 1, was entitled in plot no. 2913 was deficient by 9 Dhur. Learned trial court accordingly held that the plaintiff-respondent no.1 was entitled to an area of 9 Dhur in plot no. 2913 on the western side and was the sole owner thereof consequent to the partition. Accordingly, permanent injunction in favour of the plaintiff-respondent no. 1 in respect of and area of 9 Dhur on the western side in plot no. 2913 was granted by the learned trial court.
22. The learned trial court noticed Section 176 of the Uttar Pradesh Zamidari Abolition and Land Reforms Act (hereinafter referred to as the UPZA&LR Act), which states that the partition of Bhumidhari land lies in the exclusive jurisdiction of the Revenue Courts. The learned court consequently held that it did not possess the jurisdiction to partition the plot nos. 2913 and 2914. Moreover, the plots had already been partitioned. Hence, the alternative relief was denied to the plaintiff-respondent no. 1.
23. In the wake of the aforesaid reasoning, the learned trial court refused the relief of demolition of the offending constructions made by the defendant no. 1-appellant and declined to grant the relief of mandatory injunction to the plaintiff-respondent no. 1 in regard to the disputed property.
24. In this manner, the learned trial court decided the suit by its judgment and decree dated 26.03.1998 and 07.04.1998, respectively.
25. The defendant no.1- appellant as well as respondent no. 2-defendant no.2, did not challenge the judgement and decree passed by the learned trial court.
26. The judgment and decree dated 26.03.1998 and 07.04.1998 respectively, rendered by the learned II-Additional Civil Judge (Junior Division), Bansi, Siddharth Nagar in Original Suit No. 295 of 1980, Kedar Nath Vs. Ganga Prasad Rai and another was carried in appeal by the plaintiff-respondent no.1.
27. The appeal was registered as Civil Appeal No. 40 of 1998, Kedarnath Vs. Ganga Prasad Rai & another.
28. Learned appellate court framed the following issue for determination:
"Whether the partition took place as alleged by the appellant or as set up by the defendant no. 1"?
29. The learned appellate court in its judgment dated 19.01.1999 found that the total area of the disputed property increased after consolidation operations. The appellate court accepted entries of the consolidation Form 41, (Paper No. 95C1), to support this finding and also to record that all 4 plots namely plots nos. 2911, 2912, 2913 and 2914 are Abadi on the spot. The learned appellate court with the "help" of Civil Court Amin created a fresh map of the property from the Commissioner report Paper No. 52-C2. The new map traced by the Civil Court Amin was consistent with the measurements recorded in consolidation Form 41 (Paper No. 95C1). The appellate court then made a fresh partition of the entire property constituted in the four plots, (plots' nos'. 2911, 2912, 2913 & 2914). The respective shares to which the each party was entitled were marked in the newly created map. The appellate court accepted the total area of the four plots, given in the consolidation proceedings as 27 Bishwa 18 Dhur. Share of each party in area terms, was 9 Biswa 6 Dhur. The share of the plaintiff-respondent no.1 was marked out in read letters ABCH in the map so created by the appellate court.
30. In light of the above exercise and findings, the appellate court allowed the appeal and modified the judgment and decree passed by the learned trial court accordingly. The appellate court decreed the suit of the plaintiff-respondent no.1 for possession of the disputed property after demolition of the disputed constructions thereon. The defendant no.1-appellant and defendant no. 2-respondent no.2, were permanently restrained from interfering in the possession of the plaintiff-respondent no.1 over the land shown in letters ABCH in the map drawn by the learned appellate court. The newly created map by the learned appellate court was made part of the decree.
31. Sri S.K. Chaturvedi, learned counsel for the defendant no.1-appellant assailing the judgment and decree entered by the learned appellate court submits that the judgment exceeds the pleadings and goes beyond the relief sought by partitioning all four plots and granting an injunction after such partition in regard to all the four plots namely plots no. 2913, 2914, 2911 and 2912. No pleadings with respect to increase of area during consolidation proceedings were taken in the plaint. No documents in regard to the increased in area during consolidation proceedings were submitted along with list appended to the plaint which is relatable to Order 7 Rule 14 CPC nor marked as exhibits by the learned trial court. By relying on such documents and finding an increase in the area the learned first appellate court has erred in law. The procedure adopted by the learned appellate court to create a fresh map and for repartitioning the four plots of land was illegal. The findings of the learned appellate court that all plots were Abadi lands, was perverse particularly in view of the admission of the parties, judgment in consolidation proceedings and the findings of the learned trial court. A fresh partition was not called for.
32. It was finally contended that the jurisdiction to partition the agricultural property vests exclusively with the revenue courts by virtue of powers conferred under Section 331 of the UPZA&LR Act. The jurisdiction of the civil court is consequently ousted in this regard. Both the courts acted in excess of jurisdiction conferred by law.
33. Sri Ramanand Pandey, learned counsel for the respondents submits that the learned appellate court was justified in considering the area of the property which stood enhanced after the consolidation operations. He relied upon Consolidation Form 41, which are part of the paper book and marked as Paper No. 95Ga, in the record. The papers are also part of the record.
34. At this stage, a reference may be made to the Original Suit No 424 of 1981, Ganga Prasad Vs. Kedar Nath and another, instituted by the defendant no. 1-appellant, before the learned trial court. The suit was in regard to the ancestral house. The suit was dismissed by the learned trial court by judgment and decree dated 26.03.1998. The judgment of learned trial court dated 26.03.1998 is not taken in appeal by any party. In light of the preceding narrative in this judgment, the said judgment has no relevance to the controversy at hand. It is being noticed since the same was mentioned by Sri Ramanand Pandey, learned counsel for the plaintiff-respondent no.1.
35. The parties agreed during the arguments, that the following substantial questions of law arise for determination in this second appeal:
I. Whether the learned appellate court erred in law by going beyond the pleadings made in the plaint and granting relief in excess of relief sought, by partitioning the entire property including plots' nos'. 2911 and 2912 which were not subject matters of dispute in the suit?
II. Whether the learned appellate court erred in law by finding that the area of the plots had increased in the consolidation proceedings, even though no such pleading was taken in the plaint and no documents in regard to increase in area of the plots during consolidation proceedings were mentioned in the list of documents appended to the plaint under Order 7 Rule 14 CPC nor marked as exhibits by the court? And whether the Consolidation Form 41 (Paper No. 95Ga), could be relied upon to support the finding of increase in area in the consolidation proceedings?
III. Whether the property remained partible, after the partition was duly made and given effect to many years prior to the institution of the proceedings?
IV. Whether the procedure adopted by the learned appellate court in redrawing the boundaries of the plots of land and recreating a map of disputed properties which formed the basis of its judgment and was made part of the decree was lawful and valid and the consequences thereof?
V. Whether the learned appellate court erred in law by reversing the findings of the learned trial court regarding the nature of all the four disputed plots of lands?
VI. Whether the learned appellate court exceeded its jurisdiction by partitioning the agricultural plots of land even though exclusive jurisdiction in the matter is vested in the revenue court by virtue of Section 331 of the Uttar Pradesh Zamidari Abolition and Land Reforms Act ?
36. Brief facts relevant for deciding the substantial questions of law so framed shall be reprised from the preceding factual narrative.
37. The appellate court in its judgment partitioned the entire property which devolved upon the parties including the plots no. 2911 and 2912. There was no pleading in regard to the plots no. 2911 and 2912 in the plaint. No issues were framed in regard to the aforesaid plots. It is equally noteworthy that no relief for partitioning the plots no. 2911 and 2912 was sought in the plaint. When the parties went to trial, the status of the aforesaid plots was not in issue. The appellate court went beyond the pleadings and granted relief in excess of the relief sought by the plaintiff-respondent no. 1, by partitioning the entire property including plots no. 2911 and 2912.
38. The plaint does not state that area of the plots in dispute was enlarged during consolidation proceedings. No documents to establish increase in area of the plots during consolidation proceedings were mentioned in the list of documents appended to the plaint as contemplated under Order 7 Rule 14, nor marked as Exhibits by the learned trial court.
39. Learned appellate court once again went beyond the pleadings of the parties, to find that the area of the plots in dispute was increased during consolidation proceedings. This finding was made on the foot of Consolidation Form 41(Paper No. 95 C). Consolidation Form 41 (Paper No. 95C) could not have been received in evidence, in absence of pleadings.
40. Further, Consolidation Form 41 (Paper No. 95C) was not admissible in evidence, since the said document was not mentioned in the list of documents appended to the plaint under Order 7 Rule 14 and was not marked as an Exhibit by the learned trial court to be admitted in evidence.
41. The rules relating to pleadings are set out in Order 6 C.P.C. under the heading "Pleadings Generally". The case of a party is set forth in the pleadings in the plaint. The plaint must conform to the provisions of Order 6 C.P.C. The law relating to the pleadings is stated with clarity in the C.P.C. and settled with finality in various judgments of the courts. The party has to state its case in a concise form in the plaint/written statement by pleading all material facts. The pleadings should not be vague. However, while construing the pleadings, the courts do not adopt a hypertechincal approach. The purpose of the pleadings is also to alert the adversary to the case of the party. This will enable the adversary/opposite party to assert its defence and or refutal in its pleadings and tender its evidence in regard thereto. The law of pleadings ensures that no party can spring a surprise upon its adversary and render the latter without opportunity to defend itself. The law of pleadings poses certain limitations on parties as well as the courts. The courts cannot travel beyond pleadings and cannot grant relief which is not sought. Similarly, the court cannot receive evidence of facts which are not stated in the pleadings.
42. It would be apposite to reinforce the narrative with authority in point.
43. The purpose of pleadings was examined and delineated by Hon'ble Supreme Court in the case of Sri Venkataramana Devaru and others v. The State of Mysore and others, reported at AIR 1958 SC 255, in the following terms:
"14. Mr. M. K. Nambiar invited our attention to Exhibit A-2, which is a copy of an award dated November 28, 1847, wherein it is recited that the temple was originally founded for the benefit of five families of Gowda Saraswath Brahmins. He also referred us to Exhibit A-6, the decree in the scheme suit, O.S. No. 26 of 1915, wherein it was declared that the institution belonged to that community. He contended on the basis of these documents and of other evidence in the case that whether the temple was a private or public institution was purely a matter of legal inference to be drawn from the above materials, and that, notwithstanding that the point was not taken in the pleadings, it could be allowed to be raised as a pure question of law. We are unable to agree with this submission. The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding. We have accordingly declined to entertain this contention. We hold, agreeing with the Courts below, that the Sri Venkataramana Temple at Moolky is a public temple, and that it is within the operation of Act V of 1947."
44. The Hon'ble Supreme Court in the case of Ram Sarup Gupta v. Bishun Narain Inter College, reported at (1987) 2 SCC 555 considered in depth the responsibility of a party while pleading its case and the approach of the courts construing the pleadings. The court precluded a party from relying on evidence in the absence of pleadings. The Hon'ble Supreme Court in the case of Ram Sarup Gupta(supra) held thus:
6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. 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 settle 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. Some times, 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.
45. In SBI v. S.N. Goyal, reported at (2008) 8 SCC 92 the Hon'ble Supreme Court set its face against adjudication of an issue which was not pleaded and distinguished the adjudication of a civil dispute from exercise of powers of judicial review, by stating:
"21. In the absence of appropriate pleading on a particular issue, there can be no adjudication of such issue. Adjudication of a dispute by a civil court is significantly different from the exercise of power of judicial review in a writ proceedings by the High Court. In a writ proceedings, the High Court can call for the record of the order challenged, examine the same and pass appropriate orders after giving an opportunity to the State or the statutory authority to explain any particular act or omission. In a civil suit parties are governed by rules of pleadings and there can be no adjudication of an issue in the absence of necessary pleadings."
46. The importance of pleadings was reprised by the Hon'ble Supreme Court in the case of Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, reported at (2012) 5 SCC 370. The Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes (supra) construing the importance of pleadings opined thus:
"Pleadings:
53. Pleadings are the foundation of litigation. In pleadings, only the necessary and relevant material must be included and unnecessary and irrelevant material must be excluded. Pleadings are given utmost importance in similar systems of adjudication, such as, the United Kingdom and the United States of America.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title-holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
71. Apart from these pleadings, the court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the court must carefully and critically examine the pleadings and documents.
72. The court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the court can reject the claim or pass a decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.
77. The court must ensure that pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case."
47. Similarly, the Hon'ble Supreme Court in the case of Union of India v. Ibrahim Uddin, reported at (2012) 8 SCC 148, after considering ample authority in point ruled as follows:
77. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi[(2011) 11 SCC 786 : (2011) 4 SCC (Civ) 656 : AIR 2011 SC 1127] , after placing reliance on a very large number of its earlier judgments including Trojan & Co. v.Nagappa Chettiar [AIR 1953 SC 235] , Om Prakash Gupta v. Ranbir B. Goyal [(2002) 2 SCC 256 : AIR 2002 SC 665] , Ishwar Dutt v. Collector (LA) [(2005) 7 SCC 190 : AIR 2005 SC 3165] and State of Maharashtra v. Hindustan Construction Co. Ltd.[(2010) 4 SCC 518 : (2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299], held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. No party can be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon.
78. In Bachhaj Nahar v. Nilima Mandal [(2008) 17 SCC 491 : (2009) 5 SCC (Civ) 927 : AIR 2009 SC 1103] this Court held that a case not specifically pleaded can be considered by the court unless the pleadings in substance contain the necessary averments to make out a particular case and issue has been framed on the point. In the absence of pleadings, the court cannot make out a case not pleaded, suo motu.
48. In light of the discussion in the preceding paragraphs, the substantial questions of law no. 1 and 2 are respectively answered as follows:
Answer to substantial question of law No. I:
49. The appellate court erred in law by going beyond pleadings and in excess of relief sought and partitioning the entire property including plots no. 2911 and 2912 which were not subject matters of dispute in the plaint.
Answer to substantial question of law No.II :
50. The appellate court also misdirected itself in law and travelled beyond the pleadings by finding that the area of the plots was enhanced during consolidation proceedings.
51. The appellate court also erred by relying on Consolidation Form 41 (Paper No. 95C), since it could not have been received in evidence, in absence of pleadings. Further the said document was not admissible in evidence because it was not mentioned in the list of documents submitted with the plaint nor marked as an Exhibit by the learned trial court to be admitted in evidence.
52. The learned appellate court repartitioned the entire property. The legality of this action shall now be examined.
53. Partition of property by family settlement is a long established alternative dispute resolution method which is accepted by the courts. The parties to a family settlement, partition a joint property on mutually accepted terms.
54. The practice of accepting the family settlements is long, and the rationale behind it is sound. Family settlements are created by mutual consent of parties. Such family settlements ensure amicable resolution of property issues. The family settlements preclude any future disputes and resolve existing disputes in an amicable fashion. Such settlements preempt litigation and prevent bad blood in the family. The courts have consistently upheld the family settlements and set their face against reopening of family settlements which have been given effect.
55. Courts have vested sanctity in family partition, by according finality to family partitions. A bonafide partition once effected between the parties is final and irrevocable. The parties cannot renege from the same. The partition cannot be undone subsequently on the ground of mere inequality of shares.
56. It would be apposite to fortify these propositions by good authority.
57. The Hon'ble Supreme Court in the case of Ranganayakamma v. K.S. Prakash, reported at (2008) 15 SCC 673 stated the purpose and attributes of family settlements:
"30. It may be true that although the properties were described as coparcenary property and both the branches were granted equal share but it must be remembered that the decree was passed on the basis of the settlement arrived at. It was in the nature of a family settlement. Some "give and take" was necessary for the purpose of arriving at a settlement. A partition by metes and bounds may not always be possible. A family settlement is entered into for achieving a larger purpose viz. achieving peace and harmony in the family."
58. A similar statement of law on family partition was made by the Hon'ble Supreme Court in the case of Hari Shankar Singhania v. Gaur Hari Singhania, reported at (2006) 4 SCC 658, by holding:
"43. The concept of ''family arrangement or settlement' and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into to allay disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say affection, may suffice as observed by this Court in Ram Charan Das v. Girja Nandini Devi, AIR 1966 SC 323.
59. Stating the conditions when partition can be reopened, the Hon'ble Supreme Court in the case of Devarajan v. Janaki Ammal in Civil Appeal No. 2298 of 1966 observed as under:
"Generally speaking, a partition once effected is final and cannot be reopened on the ground of mere inequality of shares, though it can be reopened in case of fraud or mistake or subsequent recovery of family property: (see Moro Vishvanath v. Ganesh Vithal [(1873) 10 Bom HCR 444] ). Further an allotment bona fide made in the course of a partition by common consent of the coparceners is not open to attack when the shares are not absolutely equal or are not strictly in accordance with those settled by law. It is true that minors are permitted in law to reopen a partition on proof that the partition has been unfair and unjust to them. Even so, so long as there is no fraud, unfair dealing or over-reaching by one member as against another, Hindu Law requires that a bona fide partition made on the basis of the common consent of coparceners must be respected and is irrevocable:"
60. After consideration of authority in point, the Hon'ble Supreme Court in the case of Ratnam Chettiar v. S.M. Kuppuswami Chettiar, reported at (1976) 1 SCC 214 distilled the law on the subject of reopening of partition thus:
"19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:
"(1) A partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
(2) When the partition is effected between the members of the Hindu undivided family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
(3) Where, however, a partition effected between the members of the Hindu undivided family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.
(4) Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.
The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above."
61. While dealing with consequences of partition, the Hon'ble Supreme Court in the case of Shub Karan Bubna v. Sita Saran Bubna, reported at (2009) 9 SCC 689 observed as follows:
"The issue:
5. "Partition" is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.
6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co-owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.
62. Family partition between the parties in this case, satisfies the tests of a bonafide partition laid down by the courts. The plaintiff-respondent no. 1, had earlier filed a suit for partition before the consolidation authority, which had been dismissed on the foot that the property had already been partitioned. The partition of the entire property was given effect to. The ingredients for reopening the partition are not made out in the established facts of the case.
63. It is established that the parties entered into possession over their respective shares in the property, pursuant to the partition. After the partition the sole ownership of the partitioned shares came to be vested in the respective parties. The partition could not have been undone.
In view of the preceding discussion, the substantial question of law no. III is answered hereunder:
64. The learned appellate court erred in law by making a fresh partition of the property, since the property ceased to be partible and the jointness did not exist after the partition was given effect to.
65. The appellate court traced a fresh map of the entire inherited property of the parties and redrew the boundaries of the plots. The appellate court took it upon itself to redraw the boundaries of the plots by creating a fresh map with the assistance of the Court Amin. The appellate court traced the map without physical inspection of the site. The exercise of reconstruction of the map of the plots of land and drawing of the lines of partition was undertaken by the learned court using the map tendered in the Commissioner report. The parties were not complicit in this process of redrawing the map and recasting the respective shares of the parties. No objections were called by the court during the entire procedure. The map and the partition so finalized by the learned appellate court was the basis of its judgment and forms part of the decree. The procedure adopted by the learned appellate court in creating the map of the property is not known to law.
The substantial question of law No. IV is hence answered as follows:
66. The procedure adopted by the learned appellate court in redrawing the map of the entire property is contrary to law, and the partition and the judgment and decree of the learned appellate court on the foot of the said map are illegal and vitiated.
67. The learned trial court had found the nature of the plots of land, on the foot of the pleadings, admission of the parties and documentary evidences. The learned trial court opined that the plot nos. 2911 and 2912 were Abadi lands while plots nos. 2913 and 2914 were Bhumidhari lands. The learned appellate court upset the findings of learned trial court and recorded that all the plots were Abadi lands.
68. The learned appellate court did not assign any reasons for reversing the well reasoned and well founded findings of the learned trial court. The learned appellate court made its findings on the foot of consolidation forms which were not admissible in evidence (for good reasons cited in the earlier part of the judgment). The finding of the learned appellate court is perverse and unsustainable in law.
69. The power of the learned appellate court to reverse the findings made by the learned trial court is undisputed, but the manner of exercise of this power is guided by judicial authority in point.
70. In the case of Santosh Hazari v. Purushotam Tiwari, reported at 2001 (3) SCC 179, the Hon'ble Supreme Court while considering the manner in which the finding of learned trial court can be reversed by the learned appellate court held so:
"15......while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it"
71. Admittedly, in this case, the learned appellate court did not come to "close quarters with the findings of the learned trial court" in regard to the nature of the land.
Answer to substantial question No. V is as follows:
72. The learned appellate court erred in law by finding that all plots are Bhumidhari lands and reversing the finding of the learned trial court regarding the nature of the land, and the opinion of the former to the extent it is at variance with the latter on the point of the nature of land is unsustainable in law.
73. The jurisdiction of civil courts in regard to the agricultural properties ousted by virtue of Section 331 of the UPZA&LR Act. The issue of jurisdiction in the facts of this case is mixed question of fact and law. Ouster of jurisdiction was not pleaded by the defendant no.1-appellant. No jurisdictional issue was framed by the learned trial court. Though it must be added that the learned trial court found that the civil courts do not have jurisdiction to entertain the suit for partition, in view of the bar under the UPZA&LR Act. However, it is noteworthy that the point of jurisdiction was neither raised for determination before the appellate court nor pressed by the defendant no. 1-appellant at that stage.
74. I see merit in the submission of Sri Ramanand Pandey, learned counsel for the respondent that the issue of jurisdiction in the instant case could not be traversed by the plaintiff-respondent no. 1 in absence of pleadings by the defendant no. 1-appellant. The issue of jurisdiction is not a pure question of law in this case. Being a mixed question of law and fact, the same should have been pleaded and an issue was required to be framed before the learned trial court.
75. The defendant no.1-appellant cannot surprise the plaintiff-respondent no.1 by raising the issue of jurisdiction at this stage. It is well settled law that the ouster of jurisdiction of the civil court shall not be readily presumed.
76. The jurisdiction of the civil court did not stand ousted in the facts of the case. The substantial question of law no. VI is answered in the negative and against the defendant no. 1-appellant. The finding of the learned trial court in regard to jurisdiction is reversed.
77. In the wake of the preceding discussions and answers to the substantial questions of law, the judgment and decree dated 19.01.1999 and 25.01.1999 respectively, entered by learned District Judge, Siddharth Nagar, in Civil Appeal No. 40 of 1998, Kedarnath Vs. Ganga Prasad Rai and another, are illegal and cannot stand.
78. The judgment and decree dated 19.01.1999 and 25.01.1999 respectively, rendered by learned District Judge, Siddharth Nagar, in Civil Appeal No. 40 of 1998, Kedarnath Vs. Ganga Prasad Rai and another, are set aside.
79. Apart from the finding on the issue of jurisdiction, there is no infirmity in the judgment and decree dated 26.03.1998 and 07.04.1998 rendered by the learned II-Additional Civil Judge (Junior Division), Bansi, Siddharth Nagar in Original Suit No. 295 of 1980, Kedar Nath Vs. Ganga Prasad Rai and another.
80. The judgment and decree dated 26.03.1998 and 07.04.1998 rendered by the learned II-Additional Civil Judge (Junior Division), Bansi, Siddharth Nagar in Original Suit No. 295 of 1980, Kedar Nath Vs. Ganga Prasad Rai and another, are affirmed to the extent indicated in this judgment.
81. The second appeal is allowed.
Order Date: 13.09.2019 Dhananjai Sharma