Patna High Court - Orders
Govind Singh & Ors vs Balindra Singh & Ors on 28 June, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.130 of 2007
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Govind Singh & Ors
.... .... Appellant/s
Versus
Balindra Singh & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sanjay Kumar
Mr. S.K.Bhatnagar
For the Respondent/s : Mr. Ajay Kumar
Mr. Anil Kumar Singh-6
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
9 28-06-20131. Heard the learned senior counsel, Mr. Surendra Kumar Singh on behalf of the appellant and the learned counsel, Mr. Ajay Kumar, on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure.
2. The defendants respondents appellants have filed this second appeal against the Judgment and Decree dated 31st March, 2007 passed by learned Addl. District Judge, Fast Track Court No.V, Aurangabad in title appeal No.4 of 2006/ 12 of 2006 whereby the lower appellate Court reversed the Judgment and Decree of the trial Court and set aside the same dated 30.12.2005 passed by the learned Subordinate Judge IIIrd, Aurangabad in title suit No.46 of 2002 / 02 of 2005.
3. The plaintiffs respondents filed the aforesaid title suit praying for declaration that the suit land mentioned in Schedule I serial No.IV, V and VI is owned and possessed by the plaintiffs and the lands mentioned in Schedule I serial No. I to III is owned and 2 Patna High Court SA No.130 of 2007 (9) dt.28-06-2013 2/9 possessed by the plaintiff and defendant No.3 having 8 anas each. The defendant No.1 and 2 have no interest, title or possession over the suit land. The plaintiffs claimed the aforesaid relief alleging that one Ram Singh had two sons, namely, Doman Singh and Modi Singh. The defendant No.1 and 2 are the grand sons of Doman Singh being the son of Lakshmi Singh. The plaintiffs and defendant No.3 represents the branch of Modi Singh. Modi Singh had two sons Alakhdeo Singh and Sunder Singh, the plaintiff are sons of Alakhdeo Singh whereas defendant No.3 is son of Sundar Singh. The further case of the plaintiff is that the father of the plaintiff Alakhdeo Singh had acquired i.e., Schedule I serial No. I to VI through Hukumnama and through registered sale deed in the name of his mother Jamunia Kuer and he was in possession of the property after the acquisition. At the time of vesting of Jamindari, the return was filed in the name of father of the plaintiff and Jamabandi was opened in his name.
4. On the other hand, the case of the contesting defendant No.1 and 2 appellants is that one of the son of Sri Ram Singh died issueless. Doman also died in jointness leaving his minor son Lakshmi Singh. Hence Modi Singh became karta and Manager of the Joint family. Lakshmi Singh also died in jointness leaving behind the defendant No.1 and 2. Modi Singh also died in jointness leaving his widow Jamunia Kuer and his elder son Alakhdeo Singh became the karta and Manager of the joint Hindu Family. All the documents were in possession. All the properties acquired in the name of Modi Singh or Alakh Singh or Jamunia Devi 3 Patna High Court SA No.130 of 2007 (9) dt.28-06-2013 3/9 either by Hukumnama settlement or by the sale deeds were joint family property.
5. The trial Court recorded a finding that it is crystal clear that the major suit property are still joint in the name of Modi Singh and Lakshmi Singh, i.e., ext.6 and Alakh Singh and his mother Jamunia as ext. 1 and 2 series. Hence, the suit property of Schedule I not only owned and possessed by the plaintiffs rather it is the joint family property.
6. The plaintiff thereafter filed title appeal before the lower appellate Court. The lower appellate Court held that the trial Court granted a decree for partition although the plaintiff never prayed for relief of partition. The lower appellate Court also recorded a finding that the title documents, i.e., Hukumnma, the return and the sale deeds stands in the name of Jamunia, Alakhdeo. Accordingly, the lower appellate Court held that the plaintiffs are entitled to declaration of their title on the lands as they owned and possessed the same and accordingly reversed the Judgment and Decree of the trial Court.
7. The learned senior counsel appearing on behalf of the appellant submitted that in fact the plaintiff has filed the suit for partition, therefore, the trial Court has rightly recording a finding that the suit properties are joint family property and decreed the suit holding that the suit property is joint. The lower appellate Court wrongly held that it is not a suit for partition. The learned counsel placed the relief portion from the plaintiff and submitted that in the prayer portion, it has been mentioned that the plaintiffs 4 Patna High Court SA No.130 of 2007 (9) dt.28-06-2013 4/9 and defendants have got 8 ana share with respect to serial No. I, II and III. The learned counsel further submitted that while reversing the Judgment of the trial Court, the lower appellate Court has not at all considered the oral evidences of the defendant- appellant and also ext.6 which stands in the name of Lakshmi Singh and Modi Singh. Therefore, the impugned Judgment and Decree of the lower appellate Court is vitiated. In support of his contention, the learned counsel relied upon a decision of the Hon'ble Supreme Court reported in 2001 (3) P.L.J.R. 192 Madhukar Vs. Sangram. According to the learned counsel, the lower appellate Court was required to discuss all the evidences and decide all issues as has been held by the Apex Court but here in this case the appellate Court has not considered the oral evidences, therefore, the Judgment are vitiated.
8. The learned counsel next submitted that the properties were purchased by the karta, therefore, the onus was on the plaintiff to prove that these properties are the self acquired properties because the defendants appellants have clearly stated that the plaintiff's ancestor had got no separate source of income.
9. On the other hand, the learned counsel for the respondent submitted that none of the question raised by the learned counsel for the appellants are substantial question of law.
10. So far the submission of the learned counsel for the appellant that in fact the suit was filed for partition is concerned, it may be mentioned here that from perusal of the Judgment of the lower Court and the genealogy given in the lower appellate Court 5 Patna High Court SA No.130 of 2007 (9) dt.28-06-2013 5/9 Judgment, it is clear that the defendants appellants are representing the branch of Lakshmi Singh. The plaintiffs are representing the branch of Modi Singh. It is admitted that Sri Ram Singh was the common ancestor, i.e., the founder of the family. Therefore, the plaintiffs as well as defendants are fourth generation. The case of the plaintiff is that the plaintiffs and defendant No.3 had got 8 ana share in Schedule I, II and III. It is not the case of the plaintiff that the defendant No.1 and 2 who are representing the branch of Lakshmi Singh have also got share in the suit property. Admittedly, defendant No.3 is also representing the branch of Modi Singh being the sons of second son, i.e., Sundar Singh. Now, therefore, the submission of the learned counsel that in fact the suit was filed for partition is not born out from the pleadings of the parties. It may be mentioned here that the defendant No.1 and 2 never put forth any counter claim for partition of their share. Their case is only that the properties mentioned in Schedule are the joint family properties between the parties. It is not their case also that there are other joint family properties which have not been included in the suit or that still today the parties are joint or that except the suit properties, the families has got other properties also.
11. From perusal of the lower Court Judgment, it appears that the lower appellate Court has considered the documentary evidences produced by the plaintiff, i.e., ext.1 and 1/A the registered sale deeds which admittedly stands in the name of Jamunia Devi, i.e., wife of Modi Singh and grand mother of 6 Patna High Court SA No.130 of 2007 (9) dt.28-06-2013 6/9 plaintiffs. Ext.2 and 2/A are two Hukumnama which are standing in the name of Alakhdeo, the father of the plaintiffs. The lower appellate Court has also considered the Jamindari receipt ext. 3 series standing in the name of Alakhdeo Singh. The ext.4 series which are Government rent receipt which are either in the name of Alakhdeo or in the name of Jamunia Devi. The lower appellate Court also considered ext.5, the return filed by the ex-landlord at the time of vesting of Jamindari. Considering ext.6, the certified copy of record of right, the lower appellate Court held that on the basis of the same, it cannot be said that the proprieties which are standing in the name of plaintiffs are joint family property.
12. The decision relied upon by the learned counsel, i.e., the case of Madhukar (Supra) is concerned, from perusal of the said Judgment, it appears that the Hon'ble Supreme Court held that on careful perusal of the Judgment in First Appeal shows that it is hopelessly falls sort of consideration which are expected from the Court of First Appeal and on that ground the appellate Court Judgment was set aside. In the present case, it is not the case that the lower appellate Court has not considered the evidences. So far the submission of the learned counsel for the appellant that the oral evidences have not been considered, it may be mentioned here that the lower appellate Court after considering the documentary evidences observed that the oral evidences of the defendant witnesses are contrary to the documents produced by the defendants themselves. From perusal of the lower appellate Court Judgment, it appears that the lower appellate court has also 7 Patna High Court SA No.130 of 2007 (9) dt.28-06-2013 7/9 considered the documentary evidences produced by the defendant appellant, i.e., ext. A, B, C, D, etc. Now, therefore, there are evidences which are admissible and relevant for decision of the controversy between the parties which have been considered by the lower appellate Court. It is not the case of the appellant that any of the evidences relied upon by the lower appellate Court is inadmissible.
13. In the case of Madamanchi Ramappa Vs. Muthaluru Bojjappa A.I.R. 1963 SC 1633, the Hon'ble Supreme Court has held that the admissibility of evidence is no doubt a point of law but once it is shown that the evidence on which Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the Courts of fact to contend before the High Court in Second Appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognized that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of facts and cannot be agitated in second appeal. In my opinion, therefore, the submission of the learned counsel that some of the evidences have not been considered by the lower appellate Court is concerned, is not at all a substantial question of law.
14. So far the contention of the learned counsel that the property is joint family property is concerned, it may be mentioned here that the lower appellate Court considered the documentary evidences including the ext.5 and recorded the finding that it was not the joint family property. It is admitted fact that the 8 Patna High Court SA No.130 of 2007 (9) dt.28-06-2013 8/9 documents are standing in the name of plaintiff branch. It is also admitted that the plaintiff as well as the defendants are the forth generation from the founder of the family. It is settled law that the presumption is stranger in the case of brothers than in the case of cousin and the farther you go from the founder of the family, the presumption becomes weaker and weaker. The reason is that brothers are for the most part undivided, second cousin is generally separated and third cousin is for the most part separated. In such circumstances, it is for the defendant to have proved that the defendant and the plaintiffs are still joint with respect to the suit property. It is also settled principle of law that there is no presumption that a family because it is joint possessed joint property or any property. When in a suit for partition, a party claims that any particular item of the property is joint family property, the burden of proving that it is so rest on the party asserting it. As stated above in the present case, the defendant have not adduced any evidence to the effect that in fact the said properties were purchased out of the joint family nucleous.
15. In view of the above facts now it becomes clear that after considering the admissible material and relevant evidences, the lower appellate Court recorded a finding that the suit property are not joint family property rather it is self acquired property of the plaintiff branch. This finding of the lower appellate Court is pure question of fact.
16. In the case of Narendra Gopal Bidyarthi Vs. Rajak Bidyarathi 2009 (3) S.C.C. 287 at paragraph 12 the Hon'ble 9 Patna High Court SA No.130 of 2007 (9) dt.28-06-2013 9/9 Supreme Court has held that issue as to whether property is joint Hindu Family Property is a question of fact and is not a substantial question of law. From perusal of the lower appellate Court Judgments, it appears that the lower appellate Court considered that the trial Court proceeded to decide the mater as if it is a suit for partition. As stated above, the plaintiff has only filed the suit for declaration of title only. So far 8 ana share in Schedule I, II and II is concerned, it was between plaintiff and defendant No.3 and not the defendant appellant.
17. In view of the aforesaid discussion, I find that none of the questions raised by the learned counsel for the appellant are substantial question of law. Accordingly, in my opinion, no substantial question of law is involved in second appeal as such this Second Appeal is dismissed at the stage of admission itself.
(Mungeshwar Sahoo, J) Sanjeev/-