Patna High Court
Most. Marjadi Devi And Ors. vs Jagarnath Singh And Ors. on 12 August, 1981
Equivalent citations: AIR1983PAT129, AIR 1983 PATNA 129, (1983) BLJ 295, (1983) PAT LJR 634, 1983 BLJR 400
JUDGMENT
1. This appeal arises out of a partition suit.
2. The plaintiffs-appellants claim 1/3rd share in the suit properties as mentioned in schedules A. B. and C of the plaint. They claim partition on the ground that the suit properties are the joint family properties, In other words, they claim unity of title and possession in respect of suit properties,
3. The case of the defendants was that there was a previous partition and the parties had been dealing with the properties separately by executing registered documents.
4. On these facts, the trial court held that there was a previous partition and, as such, the partition suit was not maintainable. Accordingly, it dismissed the suit of the plaintiffs.
5. Before proceeding with the case, it is necessary to give the genealogy of the ancestors of the plaintiffs and the defendants. The common ancestor of the plaintiffs and the defendants was Bharosi Mahto. Bharosi Mahto had four sons, namely, (1) Sadhu Mahto, (2) Sidhi Mahto, (3) Ramswarup Mahto and (4) Ramlagan Mahto. The sons and grandsons of Ramlagan Mahto are the plaintiffs. The plaintiffs were Deodutta Mahto and Surai Mahto as plaintiffs 1 and 2. Gupteswar Singh, Tileshwar Sinffh and Ramii Singh were the sons of Deodutta Mahto as plaintiffs 3, 4 and 5. The defendants are the heirs of Sadhu Mahto and Ramswarup Mahto Sadhu Mahto had two sons, namely, Ganesh Mahto and Jagarnath Mahto. Jagarnath Mahto was defendant No. 1. The sons of Jagarnath Mahto, namely, Ramayan Mahto and Rajendra Mahto are defendants 2 and 3. Badri Mahto and Sheo-pujan Mahto are defendants 4 and 5, being the sons of Ganesh Mahto. Bha-rath Mahto. Bechan Mahto and Bacha Mahto are defendants 6 to 8, being the sons of Sheopuian Mehto (defendant No. 5). Gobardhan Singh son of Ramsarup Mahto was defendant No. 9. After his death, his widow. namely, Most. Nagina and his three sons, Mukteshwar Singh, and Lakshuman Singh and Lalji Singh were added as defendants 9. 10, 11 and 12. Defendants 13. 14. 15 and 16 are the purchasers of the interest of the different pattidars.
6. According to the plaint, all the four sons of Bharosi, namely, Sadhu Mahto, Sidhi Mahto, Ramswarup Mahto and Ramlagan Mahto were members of a joint family and they were holding the properties as ioint family properties. It is on the basis of this allegation that the plaintiffs claimed 1/3rd share in the suit properties as being the heirs of Ham-lagan Mahto. It is an admitted position that Sidhi Mahto died issueless in the year 1922. Thereafter, only three brothers remained, namely. Sadhu Mahto, Ramswarup Mahto and Ramlagan Mahto. In this background, the plaintiffs being the heirs of Ramlagan Mahto claimed l/3rd share in the joint family properties.
7. The only question for decision in this appeal is :
Whether there was a previous partition between Sadhu Mahto, sidhi Mahto, Ramswarup Mahto and Ramlagan Mahto ?
8. The answer must be given in the affirmative in the facts and circumstances of the case. Apart from the oral testimonies, there is a lot of documentary evidence to suggest that there was a partition between the four brothers, namely, Sadhu, Sidhi, Ramswarup and Ramlagan. In this connection, a reference is made to Exts. 5 series. Exts. 5 (a), 5 (b), 5 (c), 5 (d), and 5 (e) are the certified copies of the records of rights of the different disputed mattzas in the suit. Ext. 5 (a) is the khatian of mauza Kauri-Ram Ext. 5 (b) is the khatian of mauza Barei; Ext. 5 (c) is the khatian of mouza Kishunpura; Ext. 5 (d) is the khatian of mouza Sondihra; and Ext. 5 (e) is the khatian of mouza Belouri. It is an undisputed fact that all the suit lands are situated in these mauzas. There is a common entry in all the khatians to the effect that these four brothers, namely, Sadhu. Sidhi, Ramswarup and Ramlagan, sons of Bharosi, had equal shares in the areas in the mouzas mentioned, in these khatians. These khatians suggest that there was a partition between the four brothers who were the sons of Bharosi and they had equal shares in the different mouzas. In our opinion, the statement in the khatians is not a conclusive piece of evidence of partition, but it is certainly a piece of evidence suggesting that there was a partition.
9. There are other documents as well which corroborate the statement in the khatians (Exts. 5/a to 5/e) which are given hereinbelow. In the present case, we are not concerned with the partition inter se between the different grandsons of Bharosi. The only question before us is whether there was a partition between the four sons of Bharosi ? If the answer is in the affirmative, then the suit for partition is not maintainable. The survey records which were prepared in the year 1912 clearly suggest that there was partition among all the sons of Bharosi and they had , equal shares. There are three documents which mention the fact that there was a partition between the parties. They are Exts. A (2) as well as Exts. L (1) 2 and L (2) (2) which mention that there was a private partition between the members of the family and that the vendors or the executants were executing sale deed or rehan deeds on the ground that the area contained in the respective deeds were in their possession on the basis of the private partition. Ext. A (2) is a sale deed dated 5th July, 1954 and Exts. L (1) 2 and L (2) 2 are dated 29th June 1932 and 1st July, 1960 respectively Ext. A (2) is a sale deed which was executed by Gobardhan Singh in favour of Kalap Nath Singh. In the boundary of the land conveyed under that deed. Sheopujan Singh had been shown, on the north and Surai Singh had been shown on the west. The statement made in the sale deed (Ext. A 21 clearly suggests that there was partition and the parties were in separate possession of the lands in suit. It was admitted by D. W. 1 that Kalapnath Singh was in possession of the land covered by Ext. A (2). Ext. L (1) 2 is the rehan bond which was executed by late Ganesh Mahto in favour off Moti Teli on 29th June, 1932. It is mentioned in the document that there was a partition between all the four sons of Bharosi, and that each of them was in separate possession according to his share. This document corroborates the entries in survey records of rights and clearly proves that there was a partition between the four brothers by metes and bounds, and each brother got equal share in the properties left by Bharosi Mahto. Ext. L (2) 2 was executed by Gobardhan Singh in favour of Rashid Mian. It is a rehan deed (mortgage deed). This rehan deed was executed in respect of plot No. 295, khata No. 90 of mauza Kauriram (disputed land.) In this mortgage bond, it is stated that on partition the land came to his share and he had full authority to deal with the same.
10. There is another document (Ext. A (1) 2). It was a certified copy of a sale deed executed by the plaintiff, Suraj Singh in favour of Guput Singh which is dated 26-th July, 1062. In this sale deed, it is mentioned that he purchased the land from Harnandan Koiri, white he was separate, and that it is his self-acquired property. This statement Ext. A (1) 2 clearly suggests that there was a partition in the family of Surui Singh and that it was his self-acquired property while he was separate from the other members. Ext. A (3) 2 is the certified copy of the sale deed, executed by Most. Lakhrania in favour of Suruj Singh dated 7th July, 1939. This was the land which was sold to Guput Singh vide Ext. A (1) 2 by Surui Singh.
11. There is another document ( (Ext. A (2) 2) which was executed by Suraj Singh in favour of Saheb Jan Mian dated 20th June, 1957. This sale deed suggests that Suraj Singh sold 1 bigha 4 kathas out of plot No. 1163, khata No. 167 situated in village Barai. This is a disputed plot in the suit. In the sale deed Suraj Singh stated that it was his kasht land and the boundary disclosed in the sale deed mentioned the names of Deodutta Singh in the south and of Gobardhan Singh in the east. The statement made in this sale deed suggests that there was a partition between the several members of the family. Saheb Jan Mian was examined as D. W. 5. He has stated that he has purchased the land from Suraj Singh and he is in possession of the suit land. There are two depositions of the family members (Exts. Q-II and Q (I) (II). These are the depositions of Gobardhan Singh and Lachman Singh. Gobardhan Singh stated in Ext. Q-II to the effect that Sheopujan and Ramayan were separate from each other since forty years back. Sheopujan Mahto and Ramayan Mahto are the grandsons of Sadhu Mahto. Gobardhan Mahto who made the statement (Ext. Q-II) was the son of Ramswarup Mahto. This fact clearly suggests that there was a partition by metes and bounds between the different sons of Bharosi Mahto. Gobardhan further stated in Ext. Q-II that Sheopujan and Ramayan got half share in the survey recorded lands; 1/4th was in his possession and 1/4th was in possession of the accused (other ?) persons, namely. Surui and Deodutta. This statement clearly proves that there was a partition by metes and bounds between the four sons of Bharosi. It is clear from the evidence of the D. Ws. that there was a partition between the four sons of Bharosi and everybody got 1/4th share. Later on, Sidhi joined with Sadhu, and, as such, they got half of the lands. The remaining l/4th and 1/4th shares remained in possession of two brothers, Ramswarup and Ramlagan Mahto. This statement was made in T. R. No. 537 of 1962. Similar was the statement of Lachuman Singh son of Gobardhan Singh which is Ext. Q (I)-II. It is admitted by Lachuman Singh that he had only l/4th share of survey lands in his possession. He is the grandson of Ramswarup Mahto, and, therefore, his evidence supports the case of partition by metes and bounds.
12. In our opinion, if the survey entries in the survey records of rights (Exts. 5/a to 5 (e) are read together with Exts. L (1) 2, A (2), A (1) (2), A (2) 2, L (21 2, Q-II and Q (I) II, the only irresistible conclusion is that the four sons of Bharosi had partitioned the joint family properties at the time of survey or before survey and that they were in separate possession of the properties which fell to their shares. If it is so, these documents conclusively prove the factum of partition by metes and bounds between the four sons of Bharosi, and they were separately keeping their lands in their possession,
13. This fact is also proved by the oral testimonies of the D. Ws. D. Ws. 4, 11, 17 and 25 also corroborate the statements made in the documents. We, therefore, rely on the testimonies of these D. Ws. We are unable to accept the evidence of the plaintiffs' witnesses as the plaintiffs failed to prove that there was no previous partition. We are unable to accept the plaintiffs' witnesses that the four sons of Bharosi Mahto died joint and that there was no partition during their life-time and subsequently. We are rejecting the evidence of P. Ws. as the testimonies of the P. Ws. are contradictory to the documentary evidence mentioned above. In our opinion, the evidence of the plaintiffs' witnesses is not reliable and trustworthy.
14. Learned Counsel for the appellants argued before us that there was no partition by metes and bounds. The defendants' case was that there was a previous partition, If the defendants prove that there was a partition by metes and bounds, then the plaintiffs can succeed only if they bring a case to the effect that though there was a partition of the shares, yet actually the properties were not divided by metes and bounds. Then, in that case, the court, if it is satisfied, is entitled to reopen the partition for the purpose of dividing the properties by metes and bounds. That is not the case of the plaintiffs in the present case, either in the plaint or in the evidence. Therefore, the plaintiffs-appellants are not entitled to raise such an argument unless it had been pleaded in the plaint that there was no partition by metes and bounds. In the absence of pleadings and the evidence, the plaintiffs are not entitled to make out a third case at the time of the hearing of the appeal to the effect that there was no partition by metes and bounds. We say that if a defendant proves that there was a previous partition, it will mean that there was a previous partition by metes and bounds. No doubt, there is a presumption of jointness in a joint family. The presumption of joint-ness comes to an end if partition is proved; and, once partition is proved, there is disruption in the status as well as in the property. Then, it will be presumed that there was partition by metes and bounds.
15. The law raised in this case may be summarised thus :
There is a presumption of jointness in a Hindu family. The jointness in the Hindu family comes to an end when a partition is proved. When a partition is proved, then it will be presumed that the partition was by metes and bounds, unless it is rebutted in evidence by the other side. If the plaintiff comes with a clean case that though there was a partition, yet there was no division by metes and bounds, the court can certainly reopen a partition if it is proved to the satisfaction of the court that though there was partition of shares, still the properties were not divided by metes and bounds. That is not the case either in the plaint or in the evidence. As such, it is rejected. The defendants have proved conclusively in the present case that there was a partition and the joint family status was disrupted and the properties were also divided between the four brothers and they were coming in separate possession on the basis of partition.
16. We approve of the finding of the trial court and the plaintiffs are not at all entitled to a partition as there was ja partition by metes and bounds and the appellants could not displace the findings on the basis of the materials on record.
17. In the result, the appeal is dismissed but without any costs.