Patna High Court
Hari Govind Ram & Ors vs Sheo Govind Ram & Ors on 26 November, 2015
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.340 of 1978
Against the Judgment and Decree dated 31.03.1978 passed by Ist
Subordinate Judge, Gaya in Partition suit No.13 of 1975.
===========================================================
Bachi Devi & Ors.
................Plaintiffs -appellants
Versus
Shakuntala Kuer & Ors.
.......................Defendants - Respondents
===========================================================
Appearance :
For the Appellant/s :- Mr. Mahesh Narain Parbat, Sr. Advocate
Mr. Ashok Kumar Rai, Advocate
Mr. Prem Kumar, Advocate
Mr. Sanjay Kumar Jha, Advocate
For the Respondent :- Mr. J. S. Arora, Advocate
Mr. Manibhushan Kumar, Advocate.
==========================================================
Dated : 26thday of November, 2015
PRESENT
CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
1. The plaintiffs appellants have filed this First Appeal against
the part of the Judgment and Decree dated 31.03.78 passed by Ist Sub
Judge, Gaya in P.S. Case No.13/75 whereby the Court below has
refused to grant half share in Gaya house property and also whereby
the Court below has decreed the counter claim filed by the defendants
respondents.
2. The plaintiffs appellants had filed partition suit No.13 of
1975 claiming half share in the suit property and also prayed for
Patna High Court FA No.340 of 1978 dt.26-11-2015 -2-
rendition of account of Khali chuni business.
3. The plaintiffs claimed the aforesaid relief of partition and
rendition of account alleging that Kanhai Ram and Thanu Ram both
were the sons of Sukan Ram. The branch of Kanhai Ram are the
defendants. Thanu Ram was original plaintiff No.1 and his
descendents are other plaintiffs. Thanu Ram died. The further case is
that Sukan Ram died prior to cadastral survey of the year 1914-16.
During survey, the only house of the family was recorded in the name
of Kanhai Ram and Thanu Ram. Since the house was the only
ancestral property. Both the brothers were doing ladni business of
grains and lac and then they acquired a house in the town of Gaya in
Ward No.3 being Holding No.37. Sri Prasad Ram who was brother-
in-law of both brothers was co-purchaser of half share. This property
was acquired by registered sale deed dt.20.01.1919. However, the
aforesaid sale deed stood only in the name of Kanhai Ram and Prasad
Ram. Subsequently, all the aforesaid three persons purchased mokarri
and darmokarri interest at village Karmauni. In these acquisitions,
Kanhai Ram‟s family and Thanu‟s family had half share and
remaining half belonged to Sri Prasad Ram. The purchases were
made by registered sale deed dt.30.10.1922 and 30.04.1923.
Although they had no ancestral property both the brothers raised joint
funds by contribution and also by raising loans. Therefore, all the
Patna High Court FA No.340 of 1978 dt.26-11-2015 -3-
aforesaid acquisitions are self acquisition in equal shares. In order to
pay the loan, both the brothers executed several registered mortgage
deeds simple and usufruct with respect to the said acquired house and
karmauni property. However, all of the said mortgages have been
redeemed. Further, both the brothers Kanhai and Thanu started Khalli
chuni business jointly. This business was being looked after by
Kanhai Ram whereas Thanu Ram was managing the Bakast land and
jamindari. Subsequently, their bahnoi Prasad Ram died as such his
half share devolved on his daughter Shyam Piyari Devi and
daughter‟s son. Then there was family arrangement in the family of
Prasad Ram. The half share in the house at Gaya was allotted to
Bishun Ram and the half share in village Karmouni was allotted to
Shyam Piyari Devi. Some of the lands were acquired under the
defence of India rules in last war and compensation were paid.
4. The further case is that Kanhai Ram died in 1948 and his
widow died in the year 1960. Bishun Ram the owner of half share in
Gaya house died leaving behind his widow Lalita Devi and sons Sheo
Prakash and Laxmi Narain. The aforesaid heirs of Prasad Ram sold
their share in the said house of Gaya to Thanu Ram and Sheo Govind
Ram who is defendant No.1 by registered sale deed dt.21.01.1960 as
such both the branches,. i.e., branch of Kanhai and branch of Thanu
Patna High Court FA No.340 of 1978 dt.26-11-2015 -4-
got half share in the house at Gaya.
5. The further case is that in course of time, the mokarri and
darmokarri property in the villages were settled by the landlords,
namely, Kanhai Ram, Thanu Ram and Shyam Piyari Devi in favour of
Ashiwani Kumar, Ashok Kumar, Dharendra Kumar, Arun Kumar,
Smt. Kapura Devi, w/o Gopal Prasad, and Arjun Prasad and in favour
of defendant No.21 to 24 in the year 1946, therefore, the aforesaid
properties are not available for partition. The names of the settlees
were recorded in the office of ex. intermediate and on vesting they
became the raiyat of the State of Bihar. Further, Smt. Basanti Devi,
wife of Thanu Ram had purchased lands of Khata No.98, 88, 102,
113, 110 and 91 through registered sale deed dt.15.03.1939 in the
farzi name of defendant No.25. She was continuing in possession of
the same and after her death, her heirs are continuing in possession.
Kanhai and Thanu had no concern with the aforesaid land. The
plaintiff demanded amicable partition and rendition of account but the
defendants 1,2, 3 refused. Hence the suit was filed.
6. The defendant No.1 and 2 filed contesting written
statement. In the written statement, they not only took the general and
ornamental defence but also raised various legal grounds. According
to them many properties acquired jointly by Kanhari Ram and Thanu
Patna High Court FA No.340 of 1978 dt.26-11-2015 -5-
Ram have not been made subject matter of partition suit. Their
further defence is that Thanu Ram was not the co-purchaser with
Kanhai Ram of the Gaya house. Their further case is that both the
brothers never started joint khalli chunni business. The plaintiff never
carried any business at Gaya town in the suit premises. After death of
Sukan Ram, there was no nucleous of the joint family. Both of them
entered into separate business and earned separately according to their
capacity and acquired some properties jointly and some separately.
Kanhai Ram purchased 6.62 acres of land in village Karmouni in the
farzi name of his bahnoi, Chamari Ram. Kanhai Ram was far
superior then Thanu Ram in business. Out of his own earning, he
began further business at Gaya in rented house and ultimately, he
purchased the suit house at Gaya along with Prasad Ram each having
half share by registered sale deed dt.20.01.1919. Thanu Ram never
contributed a single farthing. He also never came in possession
thereof. On the death of Kanhai Ram, his sons and grand sons are
managing the business. While the defendant No.1 was ill, Thanu Ram
was managing the affairs and during this period, he got his name
entered in the sale deed dt.21.01.1960. In fact the plaintiff had not
paid any consideration money for the sale deed. He also took
possession of important documents.
7. The further case with regard to mokarri and darmokarri
Patna High Court FA No.340 of 1978 dt.26-11-2015 -6-
interest is concerned, it is stated that those were acquired jointly.
Prasad Ram had 8 ana share and remaining 8 ana share belong to
Kanhai and Thanu in equal share. The details of the properties are
described in Schedule 1 and 1/A of the written statement. Thanu Ram
had committed bungling and made farzi settlement to save the land
from ceiling act. The persons whose name are recorded in the
demand register are not raiyats nor they are in possession rather the
parties are in joint possession.
8. Defendant No.25 filed written statement alleging that the
lands appertaining to khata No.98, 88, 102, 113, 110 and 91have been
purchased by this defendant No.25 and not by Smt. Basanti Devi.
9. On the basis of the aforesaid pleadings of the parties, the
learned Court below framed the following issues :-
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got valid cause of action for the suit?
(iii) Is the suit bad for mis-joinder of the parties?
(iv) Is the suit bad for partial partition?
(v) Have the plaintiffs got share in the house of Gaya town, i.e.,
holding no. 43 fully described in item no.II of Schedule B to
the plaint, if so, to what extent?
Patna High Court FA No.340 of 1978 dt.26-11-2015 -7-
(vi) Have the plaintiffs got share in Khalli Chunni business
which is being run in the disputed house of Gaya town?
(vii) Are the plaintiffs entitled to rendition of accounts of fodder
business as claimed by them?
(viii) Are the lands mentioned in the written statement of the
defendants 1 and 2 joint lands of the plaintiffs and the
descendents of Kanhai Ram?
(ix) Are the plaintiffs entitled to a decree as claimed for?
(x) To what relief or reliefs, if any, are the plaintiffs entitled to?
10. After trial, the learned Court below held that the plaintiffs
appellants are entitled to 1/4th share only in the Gaya house and not
half share as the half portion was acquired by Kanhai Ram in the year
1919 which was his self acquired property. The Court below also
found that the properties mentioned in the written statement are the
joint family property and accordingly granted the decree decreeing the
counter claim made by the defendants respondents. Accordingly, the
plaintiff‟s suit was decreed in part only.
11. The plaintiffs have filed this First Appeal against the other
part of the decree whereby their relief to the extent of half share in
Gaya house has been rejected and the counter claim has been allowed.
Patna High Court FA No.340 of 1978 dt.26-11-2015 -8-
12. The learned senior counsel, Mr. Mahesh Narain Parbat
appearing on behalf of the appellant submitted that the Court below
has given much emphasis on the form of the pleading without
considering and deciding the intention of the parties for which there
was dispute between them. According to the learned counsel, both the
brothers Kanhai Ram and Thanu Ram had no ancestral property
except one house, therefore they were doing ladni business and out of
the income of ladni business, they purchased half share in Gaya house
along with Prasad Ram who had got half share. However, in the sale
deed only the name of Kanhai Ram has been mentioned but then
Kanhai was the karta. So, the property acquired in the name of
Kanhai Ram is the joint family property. This case of the plaintiff is
evident from the several subsequent documents produced by the
plaintiff such as ext.3, 5, 5/A, 5/G , 5/F, 22, 22(a), 23, 23(a) etc. These
documentary evidences clearly proves that in fact half share was
purchased by both the brothers jointly. In these deeds, Kanhai Ram
himself has admitted that the properties, i.e., half share in Gaya house
is the joint family property and is in joint possession of both the
brothers and the business is also joint. In view of this admission made
by Kanhai Ram regarding the title of Thanu Ram, it needs no further
corroboration because admission is the best evidence. Here, the
admission has been made by a person in whose name the sale deed is
Patna High Court FA No.340 of 1978 dt.26-11-2015 -9-
recorded and the defendants are claiming through him. The learned
Court below without going through the recitals in these deeds wrongly
held that by mere admission title will not pass. According to the
learned counsel, this finding of the Court below clearly shows that the
Court below approached the case in wrong angle. Admittedly, both
the brothers were joint. They were doing ladni business. Kanhai was
the eldest brother. There was no partition between them. The
brothers were raising fund by mortgaging that half share of Gaya
house to third parties and were acquiring land and in fact in the year
1922-23 huge landed properties were acquired by them. The Court
below failed to consider these aspects of the matter and the fact that
Kanhai Ram admitted the title as well as jointness of Thanu Ram with
him and that he was karta. In fact the Court below wrongly held that
by admission title will not pass.
13. The learned senior counsel further submitted that
subsequently, both the brothers Kanhai Ram and Thanu Ram for self
and on behalf of their minor sons mortgage the half share in favour of
Prasad Ram on 12.05.1932 through ext.22 (a) wherein the jointness
between them and jointness in business has been specifically
admitted. Prasad Ram is the co-purchaser who never disputed this
fact about jointness between them and joint ownership of both the
brothers. Further this properties, i.e., Gaya house was purchased in
Patna High Court FA No.340 of 1978 dt.26-11-2015 - 10 -
auction sale made by the receiver. At the time of purchase, neither
Knahai nor Thanu were present. In auction only Prasad Ram
participated and he gave the name of Kanhai Ram as he was knowing
that both the brothers are joint and Kanhai was the karta which is
being accepted by him in ext.22(a). Now, therefore, the Court below
wrongly held that it is self acquired property of Kanhai Ram
14. The learned senior counsel further submitted that the
defendants are also not taking the defence that there had already been
partition between the parties. Although the defence is that Kanhai
was doing separate business of khali chuni prior to acquisition of
Gaya house but except the bald statement nothing has been brought on
record to show that Kanhai had separate earning. The Court below
wrongly held that the consideration amount was huge and by ladni
business Thanu Ram could not have earned so much and could not
have contributed for acquiring the properties on assumption and
presumption only without considering the fact that subsequently the
mokarri and darmokarri lands of large area have been acquired by
them jointly just after two and three years. The learned court below
had thus decided this vital aspect of the matter only on surmises and
conjectures.
15. At the time of hearing the learned senior counsel referred to
Patna High Court FA No.340 of 1978 dt.26-11-2015 - 11 -
the depositions of D.W.15, D.W.27 and D.W.33 who is defendant
No.1 and submitted that these witnesses who had deposed to the effect
that the khalli chuni business prior to 1919 was exclusive business of
Kanhai Ram, are totally incompetent to depose the fact which were
prior to their taking birth. According to the learned counsel, their bald
statement cannot be relied upon and on the basis of their evidences
only no finding can be record and could not have been recorded by the
trial court regarding self acquisition of Kanhai Ram.
16. So fare the case regarding counter claim is concerned, the
learned senior counsel submitted that the lands have already been
settled with the settlee in the year 1946 and the settlees are in
possession of the same. The defendant‟s case is that the settlements
are farzi settlement but some of the settlees have not been made
parties and in their absence this question as to whether these
properties are joint family properties or the settles are the owner
cannot be decided in simple suit for partition by their counter claim.
The plaintiffs have produced ext.7 series which are jamindari receipts
and govt. receipt in the name of the settles. Ext.14 and Ext.17 have
been filed to show that Kanhai Ram and Thanu Ram had received
compensation jointly whereas Shyam Piyari Devi received
compensation separately which indicate that they were separate. The
lands of Shyam Piyari Devi has also been included in the schedule of
Patna High Court FA No.340 of 1978 dt.26-11-2015 - 12 -
the written statement without making Shyam Piyari Devi and / her
heirs as party in the counter claim. Some of the properties have been
settled in the name of Kapura Devi and after vesting she is in
possession of the same as owner of the property recognized by the
State of Bihar as she was in khas possession of the same on the date of
vesting. Therefore also the simple suit for counter claim for partition
with regard to this properties without seeking for declaration with
respect to the said property of Kapura Devi as joint family property, is
not maintainable. According to the learned senior counsel, the female
members are not co-personer and the properties which have been
settled in favour of Kapura Devi became her exclusive property,
therefore, unless the settlement itself is declared as farzi or that
Kapura Devi was the benamidar or that in fact the joint family have
settled the land with a view to save the said land from Ceiling Act in
this counter claim no relief could have been granted by the Court
below. The state of Bihar never sought for annulment of the
settlement by the landlord in favour of Kapura Devi. The learned
senior counsel submitted that if the decree is passed allowing the
partition of the properties mentioned in Schedule of the written
statement, the partition may be affected with respect to other
properties except the properties which belong to Arjun Prasad and
Kapura Devi in whose favour the settlement have been made and they
Patna High Court FA No.340 of 1978 dt.26-11-2015 - 13 -
are recognized as raiyat under the State of Bahr. On these ground, the
learned counsel submitted that the impugned Judgment and Decree by
which the plaintiffs relief for half share have been refused and further
by which the counter claim of the defendant have been decreed may
be set aside and the plaintiff suit be decreed in toto granting half share
in Gaya house and the counter claim filed by the defendants be
dismissed.
17. On the other hand, the learned counsel Mr. J. S. Arora,
submitted that in view of the pleading in the plaint, both the brothers
established their joint funds by contributing their earnings and also by
raising loan and the properties have been acquired in the year 1919,
1922 and 1923 and with regard to those properties they are tenants in
common. As such the case of the plaintiff is not that of joint tenancy
but their case is of tenancy in common only. In support of his
contention the learned counsel placed paragraph 3, 4, 6, 11, 15 and 21
of the plaint. According to the learned counsel, in view of this
pleading, it is for the plaintiff to prove that in fact any contribution
was made by Thanu Ram in purchasing half share of Gaya house on
20.01.1919. The presumption will be that when the parties contributed equally they became the purchaser jointly and when no contribution was made by Thanu, the properties were purchased by only Kanhai Ram. Since Thanu Ram contributed for the purchase of Patna High Court FA No.340 of 1978 dt.26-11-2015 - 14 -
mokarri and darmokarri interest in the year 1922 and 1923, he joined as purchaser with Kanhai Ram. Therefore, the argument advanced by the appellant that it was joint family property acquired in the name of Karta is not the pleading in the plaint, therefore, the same cannot be accepted and the Court below rightly disbelieved the case.
18. The learned counsel further submitted that there was no joint family income and there was even no joint family property except the house out of which there was no income at all. Therefore, the burden is on the plaintiff to prove that the properties acquired in the year 1919 is the joint family property and it is not the exclusive property acquired by Kanhai Ram. The plaintiff No.1 was Thanu Ram himself who admitted in the plaint that the suit properties are not joint family property nor there is any joint tenancy. In such circumstances, in absence of name of Thanu Ram in the sale deed dated 20.01.1919 ext.5A, the plaintiff No.1 Thanu Ram (Since deceased) cannot make a claim of having 50 per cent share out of share of Kanhai Ram.
19. Further, the learned counsel submitted that the recitals in exts. 22, 22/A and 23 will not change the situation. It cannot be said to be the admission of Kanhai. If he was the only owner of the property then by admission only, the title will not pass to his brother Patna High Court FA No.340 of 1978 dt.26-11-2015 - 15 -
Thanu Ram. It is settled law that admission cannot create a title, therefore despite those deeds Thanu Ram cannot be said to have acquired title in the Gaya house. Further in ext.19 and in application for mutation Thanu Ram himself admitted that he had no title in Gaya house.
20. So far the deed of the year 1960 is concerned, the learned counsel submitted that taking the advantage of illness,, Thanu Ram got his name entered as purchaser although he had not contributed any money. Therefore, Thanu Ram is not even entitled share of 4 ana in Gaya house according to sale deed of 1960, ext.5.
21. So far the property of Karmouni which were acquired in the year 1922-23 are concerned, decree has been passed on the basis of counter claim of the defendant. So far that decree is concerned, the learned counsel submitted that even before the trial Court no written statement was filed and against decree no separate appeal was filed challenging the said decree. In such circumstance in this appeal, that part of the decree relating to property of Karmouni is concerned, cannot be examined or decided. In the Court below, since there was no written statement to the counter claim nor any evidence was adduced, the counter claim was ex.-parte, therefore, the decree cannot be challenged without any pleading and evidence. It may be Patna High Court FA No.340 of 1978 dt.26-11-2015 - 16 -
mentioned here that at the time of argument in the Court below, an amendment application was filed which was rejected. The learned counsel, Mr. Arora, submitted that the Court below have rightly rejected the amendment application as the plaintiffs were trying to withdraw the admission made in the plaint. According to the learned counsel, in view of the decision of the Hon‟ble Supreme Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Ors. 2009 (10) SCC 84, the amendment cannot be allowed which will change the nature and scope of the suit and also if it is for withdrawal of admission and in view of 2008 (7) SCC 85, an amendment for withdrawal of admission should not be allowed. Therefore, the learned Court below has rightly rejected the amendment application. The parties have adduced evidences in view of the existing pleadings. If amendment is allowed, there may be de-nove trial because the parties will be required to adduce further evidences in support of the amendment. All the evidences produced by the plaintiff are beyond the pleadings. Therefore, the same cannot be considered. It is the case pleaded in the plaint that both the brothers contributed and have purchased the Gaya house whereas now after amendment the plaintiffs are trying to introduce a case that it was purchased out of joint family fund. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed.
Patna High Court FA No.340 of 1978 dt.26-11-2015 - 17 -
22. A cross objection has been filed by the respondent No.1 and 2 under Order 41 Rule 22 CPC against that part of the decree whereby the plaintiff appellants have been granted 1/4th share in the house at Gaya according to the sale deed of the year 1960. The submission of the learned counsel with respect to this cross objection had already been summarised above.
23. It appears that both the learned counsel in support of their submissions have filed details elaborate written arguments which are on record. In substance, the written argument is summarized above.
24. In view of above contentions of the parties, the following points arise for consideration in this First Appeal :-
(i) Point No. (i) :- Whether the plaintiffs are entitled to half share in the house at Gaya or whether the house is the self acquired property of Kanhai Ram only.
(ii) Point No. (ii) :- Whether the properties mentioned in the written statement are still joint family property as such the parties are entitled to equal share and whether there is unity of title and possession with respect to the same.
25. Point No. (i) :- It is admitted fact that the sale deed dated 20th January, 1919 stands only in the name of Kanhai Ram and Prasad Patna High Court FA No.340 of 1978 dt.26-11-2015 - 18 -
Ram having equal share. Subsequently, according to the parties, the half share of Prasad Ram who was bahnoi of Kanhai and Thanu were purchased by the parties. Therefore the plaintiff are claiming half share. In this matter, the pleading of the plaintiff in the plaint is necessary to be recorded.
26. At paragraph 4 of the plaint, it is specifically pleaded as follows : -
"That the aforesaid Sri Kanhai Ram and the plaintiff No.1 had to depend for their livelihood by their earnings which they got by doing ladni business of grains and lac and sell thereof and out of their joint efforts and earning they acquired by purchase half interest in a house then bearing holding No.37 within ward No.3 Purani Godown road in the Gaya along with Sri Prasad Ram behnoi of plaintiff No.1 and Kanhai Ram under a registered deed of sale dated 20.01.1919. The sale deed however, stood in the name of Sri Kanhai Ram and Sri Prasad Ram. The property acquired in village Karmouni has been described in paragraph 5 of the plaint.
27. At paragraph 6 it is pleaded as follows :-, „that although the sons of Sri Sukan Sao aforesaid had no ancestral joint nucleous to enable them to acquire any properties and the two brothers had to make their self earnings and they did so and established their joint fund by contributing their earnings and also by raising loan and acquired the foresaid properties with their joint fund and as such the acquisitions aforesaid under registered deeds dt.20.01.1919, 30.10.1922 and 30.04.1923 referred to above where their self acquisition in equal shares."
28. In view of the above pleadings, the intention of the plaintiff is to the effect that there was no ancestral nucleous. Therefore, both Patna High Court FA No.340 of 1978 dt.26-11-2015 - 19 -
the brothers were doing ladni business by their joint efforts, the properties were acquired. However, in subsequent paragraph, i.e., at paragraph 15, it has been mentioned that after the acquisition in the year 1960, they are in possession of the house as tenants in common. The learned counsel for the respondent, Mr. Arora, submitted that the pleadings made in the aforesaid paragraphs shows that the properties were acquired on the basis of contribution. There was no joint fund. The pleading in paragraph 15 that the parties are in possession as tenants in common is in support of the pleading in paragraph 4 and 6 quoted above. In view of the aforesaid pleading the plaintiff has to establish that Thanu Ram also contributed in purchasing the property. Since there was no ancestral nucleous, there cannot be any presumption that the property was acquired out of joint family fund. This joint family fund has to be proved by the persons who is claiming share in the property. This was the admission of the plaintiff in the pleading but by way of amendment, this admission was sought to be withdrawn, therefore, the Court below has rightly rejected the amendment application.
29. It appears that amendment application was filed on 18.03.1978, i.e. during the course of the hearing. From perusal of the lower Court record, it appears that the argument was concluded on 28.3.1978. The learned Court below observed at paragraph 34 that Patna High Court FA No.340 of 1978 dt.26-11-2015 - 20 -
both the parties agreed before the Court below that they have already adduced evidences and no further evidence is required to be adduced and that the amendment application and rejoinder to that shall be disposed of at the time of judgment. However, in the judgment, in the same paragraph the Court below stated that the proposed amendment has got no importance in this case. And thereafter subsequently, from paragraph 35 decided the same on merit and held that the defendants would be prejudiced if the amendment is allowed and further held that the please are inconsistent with each other as earlier the case was that house was the joint acquisition of the two brothers from their respective self earnings but by amendment, case has been pleaded that the house was acquired from joint family fund.
30. The learned senior counsel, Mr. Mahesh Narain Parbat, for the appellant submitted that because there was some mistake in pleading which was drafted by a junior Advocate the amendment application was filed. Since no further evidence was to be adduced, the Court below wrongly observed that it will prejudice the defendant. Likewise the specific case of the plaintiff in paragraph 4 is that it was acquired out of joint fund, i.e., self earning of both the brother. The Court below made hair splitting distinction between the case pleaded and the amendment sought for. The learned counsel submitted that the Court below has wrongly rejected the amendment application and Patna High Court FA No.340 of 1978 dt.26-11-2015 - 21 -
that resulted in dismissal of the suit. On the contrary, the learned counsel, Mr. Arora, submitted that the admission made in the pleading cannot be allowed to be withdrawn and by this amendment the plaintiff tried to withdraw the case pleaded in the plaint.
31. I have already quoted paragraph 4 of the plaint. According to this pleading at paragraph 4 in the plaint, both the brothers were doing ladni business and were selling grains and lac and out of their joint efforts and earnings they acquired half interest in house. However, subsequently in some paragraphs, it is stated that they contributed in acquisition of the property and they are tenants in common.
32. The Hon‟ble Supreme Court in the case of Ram Swaroop Gupta Vs. Bishan Narain Inter College AIR 1987 SC 1242 paragraph 6 and this Court in the case of Ganesh Sahu Vs. Dwaria Sahu AIR 1991 Patna 1 has held as follows :-
"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 fact 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. Patna High Court FA No.340 of 1978 dt.26-11-2015 - 22 -
It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered."
33. In the said decision also, it has been held that in the absence of pleadings, 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 pleadings. In the present case, the plaintiffs came to the Court making a plain case that both the brothers are joint and they were doing ladni business and out of their joint effort and income, they have acquired house at Gaya to the extent of half interest jointly but in the sale deed only name of Kanhai Ram has been mentioned. Therefore, the object and the meaning of the pleading was known to the defendant. The plaintiff‟s case is simple that they jointly acquired the Gaya house. From perusal of the impugned Judgment, it appears that the Court below did not consider the substance of the pleadings and giving much emphasis on the form of the pleading held that if the amendment is allowed, the defendants will be prejudiced. Here, when no further evidence were to be adduced, there was no question of prejudice arises.
34. The learned counsel, Mr. J. S. Arora, submitted that the admission made by the plaintiff in the plaint that the house property of Gaya was acquired by contribution was sought to be withdrawn is Patna High Court FA No.340 of 1978 dt.26-11-2015 - 23 -
concerned, it may be mentioned that here as discussed above, it is not the fact. The plaintiff approached the Court by making the pleadings as quoted above. Since there was some inconsistent pleading the amendment application was filed for the purpose of clarification and explaining the fact. The learned counsel, Mr. Arora relied upon 2009 (10) SCC 84 and 2008 (7) SCC 85. No doubt in both the decision, it has been held by the Supreme Court that the amendment withdrawing the admission should not be allowed. In the present case, the fact is otherwise. It is the specific case of the plaintiff that the Gaya house was purchased by both the brother out of the income from ladni business which was their joint effort. The subsequent statements regarding contribution or tenants in common are only inconsistency legally. Therefore, this inconsistency was sought to be explained. Therefore, it is wrong to say that the plaintiff tried to withdraw the admission. The plaintiff nowhere in the plaint admitted the case of the defendant as it is not the case of the defendant that both the brother were doing joint ladni business or contributed jointly, therefore, there is no question of admission arises. In my opinion, therefore, the Court below has wrongly rejected the amendment application emphasizing the form of pleading without appreciating the substance of the pleading. In view of the above, both the decisions relied upon by the respondent is not applicable in this case. Patna High Court FA No.340 of 1978 dt.26-11-2015 - 24 -
35. Further, by amendment, no new case was introduced by the plaintiff. The evidences have already been adduced by the parties. It appears that by way of amendment, the plaintiff tried to make a clear case of acquisition of the property by joint family fund. The learned counsel, Mr. Arora, submitted that when there was no ancestral nucleous as admitted in the plaint there was no question of joint family fund arises. So far this submission is concerned it may be stated here that the plaintiff pleaded that they were jointly doing ladni business and out of that income the property were purchased. Kanhai was the karta. Now, if both the brothers were jointly doing the business of ladni, i.e, they were earning by ladni business, can it not be said that their joint earning was the joint family earning? In my opinion, it will be joint family earning. It is not the case of the defendant that both the brothers were doing separate ladni business and they were earning separately. It is not the case of the plaintiff also. Therefore, I do not agree with the learned counsel Mr. J. S. Arora. Here. The substance of the pleading is that according to the plaintiff the Gaya house was purchased out of the income from both the brothers joint ladni business. This is the substance of the pleading. The same might have been pleaded in different way. It is settled principle of law that a pleading particularly Muffasil pleading should not be read in a pedantic manner and should be considered in Patna High Court FA No.340 of 1978 dt.26-11-2015 - 25 -
its entirety. Both the parties produced the evidences in support of their respective case. According to plaintiff, it was purchased by joint income of both the brothers whereas according to the defendants it was the self acquired property of Kanhai Ram only. Both the parties were knowing the case of each other. Now, therefore, in this light let us consider the evidences.
36. Ext.5/A is the deed dated 20.01.1919. It appears that the properties was purchased in an auction sale made by one Shyam Prakash, lawyer who was receiver of the property. Insolvency case was filed against Ram Kishun Ram. It has been recited in the deed that in the auction only Prasad Ram participated and after finalization of the auction Prasad disclosed the name of purchaser as himself and Kanhai. The learned counsel for the appellants submitted that Kanhai not even participated in the auction. In view of the pleading that both the brothers had joint income out of ladni business the amount was paid by Kanhai to Prasad Ram, their bahnaoi. Therefore, there is no evidence that in fact the amount was of Kanhai Ram only and the amount paid by him was not the joint income of both the brothers.
37. Admittedly, this deed stands in the name of Kanhai Ram only. From this deed, it is clear that only Prasad Ram participated in auction and he disclosed the name of Kanhai Ram. Subsequently, by Patna High Court FA No.340 of 1978 dt.26-11-2015 - 26 -
exhibit 22 (a), the half portion of the house was mortgaged by Kanhai Ram and Thanu Ram both for self and on behalf of their minor sons in favour of Prasad Ram by mortgage deed dated 12.5.1932. In this mortgage deed, ext.22(a), it is specifically mentioned that both brothers were members of joint family in all respect, i.e., mess, business and they were in exclusive possession over half share of Gaya house. It may be mentioned here that this Prasad Ram in whose favour the mortgage deed was executed is the owner of half portion of Gaya house. He was knowing about the ownership of rest half portion. If in fact only Kanhai Ram was the owner, he should have taken mortgage from Kanhai Ram only but in the mortgage deed, Thanu Ram also is co-executants. So far the recital regarding their jointness in mess and business is concerned, was also not disputed by Prasad Ram. Kanhai Ram himself made this statement.
38. From the above facts, now it becomes clear that whatever statement is made in ext. 5/A i.e., the deed of the year 1919 is not the statement of Kanhai Ram but the statement regarding payment of consideration was made by only Prasad Ram who subsequently in mortgage deed ext.22(a) accepted that both the brothers were joint in mess and business and he took possession of rest half portion from both the brothers treating both of them as owner. Now, therefore, Kanhai Ram also accepted Thanu Ram as owner and the person who Patna High Court FA No.340 of 1978 dt.26-11-2015 - 27 -
participated in auction also accepted that Thanu was co-owner.
39. Exhibit „3‟ is a deed executed by Bishun Ram, in favour of Kanhai Ram and Thanu Ram dated 22.04.1942. By this deed, the mortgage deed dated 12.05.1932 i.e., ext.22(a) was redeemed. It may be mentioned here that the interest of Prasad Ram was allotted in favour of Bishun Ram after death of Prasad Ram. In this ext.3 also, the ownership of Kanhai Ram and Thanu Ram in the half portion of Gaya house was accepted.
40. Ext.22 is a patta deed dated 21.04.1942 executed by both brother in favour of one Dr. Kisori Mohan Khan. In this ext.22 also, both the brothers admitted jointness in Gaya house.
41. In ext.22(a) a mortgage deed dated 12.5.1932 whereby half share in Gaya house was jointly mortgaged by Kanhai Ram and Thanu Ram for self and on behalf of their minor sons in favour of Prasad Ram. In this mortgage deed also, Kanhai Ram admitted that they are members of joint family and joint in mess and business.
42. Ext.23 is a Makfulla deed dt.3.6.1927. This deed was also jointly executed by Kanhai and Thanu for self and on behalf of their minor sons in favour of one Karu Ram. In this registered deed also, it is recited that both brothers are members of joint family and are joint in mess and business and half of Gaya house was purchased by them Patna High Court FA No.340 of 1978 dt.26-11-2015 - 28 -
jointly which is in their joint possession. They also jointly received loan amount of Rs.6000/-
43. Ext.5 is a registered sale deed dated 21.1.1960. By this registered sale deed, the heirs of Prasad Ram sold their half interest in Gaya house in favour of the parties jointly. In this sale deed also, joint purchase in half portion of Gaya house is admitted.
44. All these documents are registered documents and executed by both the brothers wherein Kanhai Ram specifically admitted that they are joint in mess and business. Kanhai is karta and they jointly purchased half interest of Gaya house. Now, therefore, this is the admission of the person in whose name the sale deed ext.5/A stands. In other words, Kanhai Ram has clearly admitted that Thanu Ram is co-owner with him. In such circumstances, the question as to whether Thanu contributed to the extent of half or the amount paid by Kanhai to Prasad was joint amount of Kanhai and Thanu is immaterial. It is admitted that the parties are governed by Mitakshtra School of Hindu Law. No doubt there is no presumption that a family because it is joint possesses joint property or any property and it is for the plaintiff to prove that the property of Gaya house is the joint property acquired by both the brothers. The question is when the person who is karta and in whose name the property stands himself admitted the joint Patna High Court FA No.340 of 1978 dt.26-11-2015 - 29 -
purchase with Thanu then also whether the plaintiff is required to prove contribution of his share? In my opinion, when this position is admitted by the karta himself that Thanu is co-purchaser there remains no dispute between them. Now, it is immaterial whether they raise the joint fund by ladni business or they contributed out of their self earning or not. Here, there was no ancestral nucleous. In my opinion, therefore what was admitted by Kanhai Ram in various registered deeds discussed above were not required to be proved by Thanu Ram. The defendants are claiming through Kanhai Ram, therefore, this admission of Kanhai in these deeds which is being accepted by the other co-owner to the extent of half share, will be binding on the defendants.
45. The Hon‟ble Supreme Court in the case of Narayan Bhagwant Rao Bosabhi Balajiwale Vs. Gopal Binayak Gosai AIR 1960 SC 100 has held that „an admission is the best evidence that an opposing party can rely on and though not conclusive is decisive of the matter, unless successfully withdrawn or proved erroneous.‟ In the present case the admission were made by Kanhi who is now dead. Further all these admissions recorded in registered deeds since from 1927 onwards are neither explained nor proved to be erroneous by the defendants herein and the defendants also would not show as to why these admissions of Kanhai Ram will not be binding Patna High Court FA No.340 of 1978 dt.26-11-2015 - 30 -
on them. It may be mentioned here that as has been discussed above, the admission of Kartaship, jointness, joint ownership of Gaya house and joint possession and joint in mess and business made by Kanhai is clear unambiguous.
46. The learned counsel Mr. J. S. Arora, for the respondent submitted that since the sale deed of the year 1919., ext.5/A is in the name of Kanhai Ram only to the extent of half share. He will be the owner of that portion. Therefore, even if there is admission subsequently, the title will not pass to Thanu Ram as it is settled principle of law that by admission title will not pass. In support of his submission, the learned counsel relied on AIR 1966 SC 605, 2000 (4) PLJR 498, 1993 (1) PLJR 172 and a Judgment of this Court dated 02.01.2014 passed in Second Appeal No.151 of 2006 Bibi Jamila Khatoon Vs. Janardan Kuer. So far these decisions are concerned, there is no dispute regarding the settled principle. But here the main controversy is whether both the brothers jointly purchased or it was purchased by Kanhai Ram only. When Kanhai Ram himself admitted that Thanu Ram is co-purchaser and both were joint and in joint possession, having half interest, it is the admissions of title of Thanu which was existing from the date of purchase by ext.5/A. By this admission, right is not conferred on Thanu Ram but the existing right Patna High Court FA No.340 of 1978 dt.26-11-2015 - 31 -
of Thanu Ram is admitted by Kanhai Ram.
47. So far the submission of the learned counsel Mr. J. S. Arora that title cannot pass without registration of a document as required under Section 17 (g) of Registration Act because the property stands only in the name of Kanhai Ram is concerned, as stated above, by the admission or by any other document title is not being created on Thanu Ram for the first time. As has been stated above, the existing right of Thanu which existed from the very execution of ext.5/A is being admitted by Kanhai Ram. In other words, Kanhai Ram admitted that both the brothers are joint co-owner, jointly purchased Gaya house, I, therefore, find no force in the submission of the learned counsel.
48. The learned counsel, Mr. J. S. Arora, next submitted that the sale deed of the year 1919 was purchased through auction sale, therefore, in view of Section 66 of Code of Civil Procedure 1908 which is applicable in this case, no other person can be allowed to claim title in the auction purchase property. So far this submission is concerned, it may be stated here that prior to amendment of CPC in the year 1976, the provision under Section 66 CPC was as follows :-
49. 66 (1) " No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as maybe prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of Patna High Court FA No.340 of 1978 dt.26-11-2015 - 32 -
someone through whom the plaintiff claims.
(2) Nothing in this Section bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate prudently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property though ostensibly sold to the certified purchaser on the ground that it is liable to satisfy the claim of such third person against the real owner.
50. In the present case, it is admitted that in insolvency case receiver was appointed and the receiver has sold the property after holding auction, therefore, it is not a Court auction sale and that Thanu is not claiming that in fact on his behalf Kanhai Ram purchased but the claim is that he is co-purchaser with Kanhai Ram. In other words, his case is that both the brothers jointly acquired the property out of their joint fund but it stands in the name of Kanhai Ram only. Therefore, in my opinion, Section 66 will not apply in the present case.
51. From perusal of the impound Judgment, I find that the Court below gave much emphasis on the form of pleading without considering the substance of the pleading. The Court below also did not consider the admission of Kanhai as discussed above made in registered deeds. The Court below also wrongly observed that amendment sought for is of no importance. The Court below also wrongly held that if amendment is allowed it will prejudice the defendant. It further appears that the Court below considered the Patna High Court FA No.340 of 1978 dt.26-11-2015 - 33 -
amount of consideration for the purchase of Gaya house and on assumption and presumption held that it is not believable that from ladni business, Thanu Ram could have contributed his half share of the consideration amount. While observing this, the learned Court below did not consider the fact that subsequently huge properties were acquired in the year 1922-23. If Thanu had no capacity to pay any consideration amount in the year 1919, from where he got the consideration amount for acquisition of mokarri and darmokarri interest in the year 1922-23. In my opinion, therefore, this observation of the Court below is only presumption and assumption based on conjectures and surmises.
52. The learned counsel, Mr. J. S. Arora, submitted that when there is no pleading of the plaintiff that Gaya house was purchased out of joint family fund or joint fund of both the brothers no amount of evidence either oral or documentary can be looked into or consider because the defendants shall be prejudiced. According to the learned counsel, it was specific pleading that the property was purchased by contribution. The learned counsel relied upon AIR 1987 SC 1242 and Ram Swaroop Gupta Vs. Bishan Narain Inter College and AIR 2009 SC 1103 Bachhaj Nahar Vs. Nilima Mandal and submitted that the object and purpose of pleading and issues is to ensure that the litigants come to trial with all issues clearly define and to prevent Patna High Court FA No.340 of 1978 dt.26-11-2015 - 34 -
cases being expanded or grounds being shifted during trial. So far this submission is concerned, at the cost of repetition here I may say that in the present case it is the pleading in paragraph 4 of the plaint that by joint effort of ladni business, fund was crated and by that fund the property were acquired. Therefore, the defendants were knowing this case of the plaintiff and they claimed that in fact it is self acquisition of Kanhai Ram only. Therefore, it is not a case that during trial a new case was developed by the plaintiff. I have already quoted AIR 1987 SC 1242 earlier in the preceding paragraph.
53. So far the case of Bachad Nagar (Supra) is concerned, in that case also the Hon‟ble Supreme Court at paragraph 12 referred to the decision of AIR 1987 SC 1242 and held that „a case not specifically pleaded can be considered by the Court only where the pleadings in substance, though not in specific terms contains the necessary averments to make out a particular case and the issues framed also generally covered the question involved and the parties proceeded on the basis that such case was at issue and have led evidence thereon.‟ In the present case, I have already held that the pleading in substance of the plaintiff that the property was purchased out of income from ladni business which was being done by both the brothers. The issue framed also generally covered this question. Both the parties adduced the evidence oral and Patna High Court FA No.340 of 1978 dt.26-11-2015 - 35 -
documentary. Therefore, after filing amendment both the parties stated before the Court below that they will not adduce any further evidence. In view of these fact, it cannot be said that a new case is made out by the plaintiff or a new case is developed or the case is being expanded by the plaintiff at the time of trial. It further appears that the Court below on these grounds that the evidences oral and the recital made in the different deeds are based on no pleading held that the same cannot be considered. In my opinion, this is wrong approach. I, therefore, do not agree with the submission with the learned counsel for the respondent.
54. So far cross objection of the defendant respondent is concerned, by this cross objection that part of the decree passed by the Court below granting 1/4th share in Gaya house in favour of plaintiff has been challenged by the respondent. The learned counsel Mr. J. S. Arora, submitted that in fact the plaintiff No.1 Thanu Ram taking advantage of mental disorder of the defendant got his name inserted as co-purchaser in the sale deed of the year 1960 by which half share of Prasad was purchased. In fact, Thanu Ram had not paid anything. The Court below had wrongly granted the decree in favor of plaintiff to the extent of 1/4th share. So far this submission in support of cross objection is concerned, I may state here that the sale deed is a registered sale deed of the year 1960. There is presumption of its Patna High Court FA No.340 of 1978 dt.26-11-2015 - 36 -
genuineness. The defendants never challenged the sale deed, i.e., the defendants never sought for any declaration with respect to the deed that wrongly Thanu got her name entered in the said sale deed. Still today they have not challenged the sale deed. Admittedly, in the sale deed, Thanu Ram is also a purchaser along with the defendant. Therefore, in my opinion, the learned Court below has right recorded the finding that Thanu is co-purchaser. Accordingly, this part of the decree is hereby confirmed. The cross objection is dismissed.
55. In view of the above facts, when there are overwhelming documentary evidences, the oral evidences adduced by the parties are not very material because the witnesses examined have deposed according to the respective pleadings of the parties. The main controversy is whether half portion of Gaya house was purchased by both brother ought of their joint fund or his self acquired property of Kanhai Ram cannot be decided only on the basis of oral evidences that too by mere saying before the Court, particularly when there are documentary evidences as discussed above.
56. In view of my above discussion, I find that the plaintiff have been able to prove that half interest of Gaya house was purchased by both brothers out of their joint fund as such they had equal share in it. The defendants have failed to prove that acquisition Patna High Court FA No.340 of 1978 dt.26-11-2015 - 37 -
of half interest in the year 1919 was the self acquisition of Kanhai Ram. Therefore, the finding of the Court below on this point is hereby reversed. It is held that the plaintiff are entitled to half share in Gaya house after purchase of the rest half share of Prasad Ram in the year 1960.
57. Thus Point No.(i) is answered in favour of the plaintiffs appellants.
58. Point No.(ii) :- The defendants in their written statement, pleaded that the plaintiffs did not include the properties in the plaint which are joint family property. In the schedule of the plaint, the property have been detailed and a counter claim was made by the defendant for granting decree to the extent of half share in those property. The Court below has granted the decree.
59. The learned senior counsel, Mr. Mahesh Narain Parwat, submitted that the defendants produced no documents in support of the fact that those properties are the joint family properties. According to the plaintiffs, substantial part of the lands were either acquired by the Government or were settled by the landlord to different persons prior to vesting of Jamindari. After vesting of jamindari, the settlees were recognized as raiyat by the State of Bihar. Settlements were made in the year 1946. No proceeding for Patna High Court FA No.340 of 1978 dt.26-11-2015 - 38 -
annulment of settlement was ever initiated by the State Government under Section 4 (h) of Bihar Land Reforms Act. After purchaser of mokarri and darmokarri interest the landlord settled 10 acres 55 decimal in the name of Kapura Devi in 1948 and 10 acre 40 ½ decimal in favour of Arjun Prasad. The landlord who settled the land was Shyam Piyari Devi. After vesting both of them have been mutated.
60. In support of the case of the plaintiff, they have produced ext. 7 and 7(a) which are receipts of settlement. It is settled principle of law that a female member is not a co-personer. After settlement, Kapura Devi came in possession and on vesting she became the raiyat under the State of Bihar. From perusal of the Judgment of the Court below, it appears that the learned Court below held that all the witnesses examined have stated that the lands are in joint possession of the parties. The question is whether by mere joint possession, the property of lady will come to the joint family and the title of Kapura Devi divested. It may be mentioned here that the property of Kapura Devi has also been made subject matter of the counter claim. The plaintiffs have produced ext.17 which is return. The lagit in the name of settlee are ext.18 series.
61. It appears that the plaintiff witnesses P.W.8, P.W.10, Patna High Court FA No.340 of 1978 dt.26-11-2015 - 39 -
P.W.12 have stated that the settlement were farzi settlement. P.W.15 17, 18 & 19 have stated that the lands are still joint and both the parties are cultivating. In view of the evidence of this plaintiffs witnesses themselves, they have admitted the case that the landlord, i.e., either heirs of Kanhai or Thanu made farzi settlement and the parties are jointly cultivating. P.W.17 stated that at the time of vesting of Jamindari, Kanhai and Thanu had made settlements in favour of their family members. However, so far Kapura Devi and Arjun Prasad are concerned, the settlement was made by Shyam Piyari Devi who was the heir of Ram Prasad who admittedly purchased half interest in mokarri and darmokarri lands. Now, therefore, these settlements made in favor of these two persons are not the settlement made by the landlord either Thanu or Kanhai. The evidence discussed above are to the effect that the settlements were made by Kanhai and Thanu in the name of the their family members. Family will not include Ram Prasad who was their bahnoi and had half interest in the above properties. Now, therefore, so far the settlement made by Shyam Piyari Devi in favour of the settlees are concerned, it cannot be said that those properties are the joint family properties. The witnesses have stated that both the parties are in joint possession is concerned, by mere joint possession, the title will not vest on them.
Patna High Court FA No.340 of 1978 dt.26-11-2015 - 40 -
62. After acquisition of the properties, compensation were paid to Kanhai, Thanu and Shyam Piyari separately after 1946 which would be evident from ext.14 and 17 which are receipt of payment of compensation. These evidences indicate that Shyam Piyari had separate jamindari and, therefore, she had made independent settlement of her land.
63. In view of the above materials and discussions, I find that the defendants are entitled for partition of the property mentioned in Schedule of the written statement minus the properties of Shyam Piyari which was settled by her to Kapura Devi and Arjun Prasad. So far these properties of Kapura Devi and Arjun Prasad are concerned that belong to Ram Prasad which was settled by Shyam Piyari after death of Ram Prasad in favour of Kapura Devi and Arjuna Prasad. The learned Court below wrongly granted partition decree with respect to these properties of Kapura Devi and Arjun Prasad. The settlement made by Shyam Piyari Devi would be evident from ext.7 and 7 (a).
64. In view of my above finding, the findings of the Court below is hereby modified and it is held that the defendants are not entitled for partition of the land of Kapura Devi and Arjun Prasad.
65. Thus, the Point No.(ii) is answered partly in favour of Patna High Court FA No.340 of 1978 dt.26-11-2015 - 41 -
appellant and partly in favour of respondent.
66. The learned senior counsel, Mr. Mahesh Narain Parbat, submitted that substantial part of the property mentioned in counter claim have been acquired. If this is the fact then the same can be ascertained in final decree proceeding and if in fact the properties are not in existence having being acquired it will not be available for partition.
67. In the result, this First Appeal is allowed in part. The Judgment and Decree of the Court below is modified and it is held that the plaintiffs are entitled for decree for partition to the extent of half share in Gaya house and thus the cross objection is dismissed. The other part of the Judgment and Decree of the trial Court relating to the property mentioned in counter claim is also modified and it is held that the properties mentioned in written statement-cum-counter claim minus the property of Kapura Devi and Arjun Prasad settled in their favour by Shyam Piyari Devi is available for partition wherein both the parties have got half share. In the facts and circumstances of the case, there shall be no order as to cost.
(Mungeshwar Sahoo, J) Sanjeev/-
U T