Patna High Court
Smt. Tuna Devi And Ors. vs Kali Pada Deo And Ors. on 25 September, 1998
Equivalent citations: 1999(47)BLJR1337
Author: Prasun Kumar Deb
Bench: P.K. Deb, Prasun Kumar Deb
JUDGMENT Prasun Kumar Deb, J.
1. This appeal has been preferred against the judgment and decree dated 30.7.1983 and 10.8.1983 respectively passed by 1st Additional Subordinate Judge, Dhanbad, in Title (Partition Suit No. 27/9 of 1977/ 1981 whereby and where under the plaintiffs' suit for partition of Plot No. 7707 described in the Schedule of the plaint has been dismissed.
2. The case of the plaintiffs is that under Khata No. 740 in Mouza Chas, Plot No. 7707 belonged to five brothers namely, Babu Lal Bouri, Bhuban Bouri, Nitai Bouri, Bindu Bouri and Mahindi Bouri. The names of five brothers were finally published in the record of rights. Babu Lai Bouri died issueless. Bhuban Bouri had a daughter Rohini by name and she was married to Chhakari Bouri (defendant No. 3). Rohini has a son Dapu Bouri. Rohini is dead. Nitai Bouri the third brother died without any issue. The fourth brother Bindu had a son Bhokhu by name. Bhokhu also died leaving behind Keli Bouri, defendant No. 4, as his heir. The fifth brother Mahindi Bouri had two sons Kesho and Sukhdeo but both of them died without any issue.
3. The case of the plaintiffs is that Babu Lal Bouri and his four brothers has ceased to be a members of the joint family and they became separated in mess but they were possessing their shares of property although separately but remained as joint as tenants in common and there was no partition by metes and bounds. Originally the said Plot No. 7707 was recorded in the record of rights as Gora-II land but by efflux of time, it lost its character as the same was converted into Homestead land and was being possessed by constructing houses thereon. Bhoku Bouri, the father of the defendant No. 4 Kali Bouri sold out his share of land measuring 25 Cubits from East to West and 90 Cubits from North to South within the specified boundaries in suit Plot No. 7707 to Md. Roshan by a registered sale-deed as back as on 17.6.1952. It is the further case of the plaintiffs that Nitai Bouri during his life time sold 25 Cubits from East to West and 90 Cubits from North to South in the same suit plots with specified boundaries to Md. Roshan by a registered sale-deed dated 24.12.1951 and the same is just contiguous to his earlier purchase from Bhoku Bouri. In that way, by two purchases, Md. Roshan became the owner of an area of 50 Cubits by 90 Cubits of Plot No. 7707 and entered into possession and by constructing a house therein, he exercised his physical possession. Then, according to the plaintiffs, Md. Roshan while in possession sold the land purchased by him from Nitai Bouri by sale-deed dated 24.12.1951 to Md. Rafique and others by registered sale-deed dated 18.12.1958. Md. Rafique and others in their turn had sold the land and houses thereon to plaintiff No. 2 by a registered sale-deed dated 21.8.1961. The plaintiff No. 1 purchased the land of Md. Roshan which he purchased from Bhoku by a registered sale-deed dated 21.8.1961. The plaintiffs No. 1 and 2 are the full brothers and they came in possession of the whole area of 50 Cubits by 90 Cubits in the suit plot which was originally in possession of Md. Roshan. They also made further constructions and erected compound wall around their purchased land.
4. The defendant Nos. 1, 2, 6 and 7 are the purchasers of some portions of Plot No. 7707 from the co-sharers and as such they were made parties. The plaintiffs felt aggrieved in exercising their possession over their purchased land and houses as there were always being disturbance from the other co-sharers and as such they claimed for partitioning the suit plots by rents and bounds as the same was never being partitioned as per the specific shares of the parties in possession. According to the plaintiffs, the defendant No. 1 Kali Pada Deo, started creating trouble in peaceful possession of the plaintiffs and was bent upon demolishing the eastern boundary wall given by the plaintiffs and then the plaintiffs filed Title Suit No. 109 of 1971 in the Court of Second Munsif, Dhanbad, with a prayer for a decree for permanent injunction to restrain the defendants in that suit from interfering with the plaintiffs' possession and also restrain the defendants not to demolish the compound wall. The said suit was transferred to the Court of Additional Munsif, Dhanbad. As the plaintiffs' title over the suit property was challenged and, as such, on the observation of the Munsifs Court, the plaintiffs amended the plaint by adding prayer for declaration of their right, title and interest over their purchased land, then the plaintiffs were asked by the Court to pay ad valorem Court fee on the value of the suit land. After hearing the parties on the valuation matter, the suit land was assessed to be valued at Rs. 12,000/- by the learned Munsif. As the Munsif had got no jurisdiction to try the suit having no pecuniary jurisdiction, the plaint was returned to the plaintiffs. According to the plaintiffs, on return of the plaint, they took advice of the Lawyer and as, it was not obligatory on the part of the plaintiffs to pray for declaration of title and, as such, as advised, they filed the present suit for simplicitor partition. According to the plaintiffs, the main demand was for partition of the suit land by metes and bounds but the same was refused and on that cause of action, the present suit has been filed.
5. The defendant No. 1 Kali Pada Deo appeared and filed separate written statement. Defendant No. 5 Dapu Bouri and defendant No. 11 Smt. Baisakhi Bouri, being the son and daughter of Rohini through Chakari, Defendant No. 3, filed joint written statement to contest the suit. The defendant No. 2 also appeared and filed written statement, who ultimately did not contest the suit. Similarly, defendant Nos. 9 and 10, heirs of Kali Bouri filed a joint written statement but ultimately did not contest the suit.
6. The defendant No. 1 in his written statement contended, inter alia, that the suit is not maintainable, that the plaintiffs' suit is in the form of declaration of title and recovery of possession in the garb of a partition suit and that the suit of the plaintiffs cannot be held maintainable as proper reliefs have not been prayed and hit by Section 34 of the Specific Relief Act together with Order II Rule 2 of the Code of Civil Procedure and that ad valorem Court fee has not been paid and, as such, if the plaintiffs are given declaration of title and then get his share partitioned. It was also pleaded that the suit was barred by limitation, principle of estoppel, waiver, acquiescence and also prayed for misjoinder and non-joinder of parties. According to the defendants, heirs of Rohini Bouri have not been made parties as Jilpi, daughter of Rohini had got share over the suit property and that the suit is barred by the principles of res judicata in view of the earlier suit being Title Suit No. 109 of 1971 and also another partition suit being fought between the co-sharers. According to this defendant, all lands of Bisu Bouri and others had not been included in this suit, so this suit for partial partition is not maintainable ; that five brothers inherited the whole of Plot No. 7707 of Mouza Chas has not been denied. According to him, Babu Lal Bouri, Bhushan and Mahindi are the sons of Bisu Bouri by his first wife while Netai and Bindu are from his second wife. After the death of Bisu, all the five brothers possessed the property jointly. Babu Lal Bouri died 45 years ago leaving behind a daughter Rohini alias Rajni and Jilpi is the daughter of Rohini alias Rajini, Babu Lai Bouri died leaving behind a son Bhaku who also died leaving behind a son Kali. On Bhaku's death, his share was inherited by his daughter Rohini by name. Netai died about 13 years ago without leaving any issue. During his life time, he gifted all 14 decimal of land by a registered deed of gift dated 21.12.1954 to Rohini Bouri and Dapu Bouri. Bhushan and Netai used to reside in a house over Plot No. 7707/7896 of Mouza Chas. Kali Bouri inherited the interest of his father and that of Uncle Babu Lal Bouri. It was denied that there was a consent partition in between Bhushan Bouri and his other brothers. It was also denied that the character of plot No. 7707 has been changed. The houses erected thereon by the original co-sharers were appertaining to their agricultural tenancy. According to these defendants, the sale-deeds as alleged from the side of the plaintiffs are all forged and fabricated documents. No consideration as passed on those sale-deeds and as such those sale-deeds had not conferred any right on the vendors of the plaintiffs and neither Md. Roshan nor Md. Rafique nor the plaintiffs had ever came in possession of the suit land by virtue of their alleged purchased deeds. There was no partition amongst the heirs of Bisu Bouri. They were the members of the joint: Hindu family guided by Mitakshara School of Hindu Law and possessed the property jointly. It was further stated that neither Bhaku or Netai had any right or authority to sell their alleged share to Md. Roshan as the same was possessed jointly by the other co-sharers and as per Mitakshara School of Hindu Law, neither Bhaku nor Netai can be in specified share to sell the share to Md. Roshan. Regarding the length and breadth of the suit plot, as alleged from the side of the plaintiffs, has been challenged and it was stated that the same is not in the rectangular shape and uniform division of the suit plot is not possible.
7. Bhushan and Netai had 1/5th share each in Plot No. 7707 and other plots appertaining to Khata No. 140 of Mouza Chas, hence, Netai and Bhushan had no authority to dispose of the rest portion of the land in Plot No. 7707. As the Bouries are the members of the Scheduled Caste and as such the alleged sale-deeds are hit by the provision of Section 46 of the Chotanagpur Tenancy Act, 1908 (the Act) as no permission was ever taken of selling those lands to non-tribal Md. Roshan as alleged from the side of the plaintiffs. According to these defendants, boundary walls were constructed by Bouries and it was false to say that the plaintiffs have ever constructed the said boundary wall. It is the further contention of this defendant No. 1 that Dapu Bouri and Rohini Bourin by a registered sale-deed dated 23.5.1968 sold their right, title and interest in Khata Nos. 740 and 741 to these defendants including Plot No. 7707/ 7896 with prior approval and permission of the Land Reforms Deputy Collector, Baghmara at Dhanbad as required under Section 48(2)(5) of the Act. It was also stated that Rohini Bouri along with Jilpi Bourin filed a partition suit amongst their co-sharers for partition of land appertaining to Khatian Nos. 740 and 741 of Mouza Chas being Title (Partition) Suit No. 377 of 1964 in the Court of Munsif-II, Dhanbad and the learned Munsif by his judgment dated 30.9.1966 held Rohini Bourin to be entitled to 1/5th share in her ancestral property in Khata No. 740 and 1/10th share in Khata No. 741 besides the lands given to her by Netai by a deed of gift dated 21.12.1954 and passed a preliminary decree for partition but there was inequitable distribution of Plot No. 7707 so far as the said Rohini is concerned. The plaintiffs came to learn the said inequitable distribution effected by the pleader Commissioner appointed in the said partition suit, have now come up with the present partition suit against the heirs of the defendants of that suit. It is also the contention of these defendants that Rohini had filed an appeal before the District Judge against the final decree passed in Title (Partition) Suit No. 377 of 1964 being Title Appeal No. 55 of 1968. After the death of Rohini, during the pendency of the appeal, her daughter, son and husband were duly substituted. The defendant No. 1 being the purchaser of the whole interest of Rohini applied for impleading himself as party appellant in that appeal. Ultimately, the said appeal was compromised in between the parties and by a decree dated 31-7-1972, the entire Plot No. 7707/7896 and 0.26 decimals out of Plot No. 7707 towards eastern side in the road frontage of 46 ft along with other lands falling in his purchased land appertaining to Khata No. 740 was allotted to defendant No. 1. According to defendant No. 1, the plaintiffs had never intervened in the partition suit and practically their purchases were fabricated and as such they did not dare to intervene in that suit but then they filed suit against the defendants No. 6 and 7 in the Court of the Munsif for a portion of the suit land being Title Suit No. 80 of 1970 which was dismissed, and as such the present suit is barred by res judicata. It was further stated that the plaintiffs filed Title Suit No. 109 of 1971 in the Court of Munsif but on return of the plaint, the said suit was abandoned and now this partition suit has been filed.
8. The defendant Nos. 5 and 11 in their joint written statement denied the case of the plaintiffs in toto. They have pleaded regarding non-maintainability of the suit on the ground that the earlier suit was filed for permanent injunction and then amended to declare right, title and interest then without taking permission of the Court, the present suit cannot be filed without declaration of title. On factual aspect, it has been contended that the plaintiffs or their alleged vendors were never in possession of the suit land. The sale-deeds are bogus and fabricated. It is also contended that the plaintiffs have claimed by right of purchase of a small portion of ejmal plot from some co-sharers and as such have no locus standi to file a suit for partition. Moreover, even if such sale was executed in favour of the vendor of the plaintiffs, the land being ancestral property, there was no scope of any definite share of the co-sharers in the coparcenery property. It is also contended that the partial partition prayed for a single plot No. 7707 is not maintainable when in the earlier partition suit, already that plot has been included in the share of one of the co-parceners. The decree passed in Title Suit No. 377 of 1964 is binding on the co-sharers and co-parceners and if the plaintiffs have got title being traced out since 1951, it cannot be said by any stretch of imagination that they would sit tight without getting themselves impleaded in the earlier partition suit. The plaintiffs, according to these defendants, have been set up by some disgruntled coparceners when they found, as per final decree in the partition suit, they could not get favourable allotments.
9. The defendant Nos. 9 and 10 in their written statement have supported the case of defendant Nos. 5 and 11. The defendant No. 2 (Pradip Kumar Agarwallla) in his written statement has denied all the averments of the plaintiffs. According to him, the recorded raiyats had amicably partitioned their joint property including the suit plot No. 7707 orally by metes and bounds and were in separate exclusive possession of their lands. The defendant No. 2 by purchase remained in peaceful possession by construction of boundary walls on all sides and his name has also been mutated in the Serista of the Government of Bihar by virtue of the order dated 26.11.1973 in mutation Case No. III of 1973-74. His possession had never been disturbed and that in the earlier suit, i.e. Title Suit No. 109 of 1971 before the 2nd Munsif, Dhanbad, he was not made party.
10. On the basis of the pleadings of the parties, the following issues were framed:
(i) Have the plaintiffs cause of action for this suit?
(ii) Is the suit maintainable?
(iii) Is the suit barred by limitation, principle of waiver, acquiescence and estoppel?
(iv) Is the suit bad for non-joinder and mis-joinder of parties?
(v) Are the plaintiffs entitled to a decree for partition as prayed?
(vi) To what relief or other reliefs, if any, are the plaintiffs entitled?
11. Issue No. (v) is the vital issue in the case. The learned Court below held that the plaintiffs are not entitled to get a decree as claimed for partition and as such this issue was decided against the plaintiffs. Issue No. (iv) was also held against the plaintiffs holding that the suit suffers from non-joinder and mis-joinder of the parties. Other issues have also been decided against the plaintiffs and there was overall holding by the learned Court below that the suit was not maintainable in its present form and hence the suit was dismissed.
12. In the appellate Court, for and on behalf of Kali Pado Deo, Mr. S.N. Rajgarhia, appeared but at the time of hearing of the appeal, he stated that according to instructions of his client, he does not want to argue the case. Learned Counsel appearing for and on behalf of respondent Nos. 7 and 8 have also not appeared at the time of hearing of the appeal. It is found that the contesting defendants had taken back their documents after the suit was dismissed and there was an order for return of those documents but those documents had never been returned and, as such, the documents cannot be considered for the purpose of deciding this appeal.
13. Mr. Debi prasad, Senior Advocate, appearing for and on behalf of the plaintiffs-appellants had much stress for re-submission of those documents by the contesting respondents as, according to him, the plaintiffs' case could be well proved from the documents brought from the side of the defendants.
14. Some admitted facts are there. The plaintiffs had earlier filed Title Suit No. 109 of 1971 against the defendant No. 1 Kali Pada Deo and some other defendants and the original prayer in that suit by the plaintiffs was for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs and also with regard to interference in the boundary wall of the plaintiffs. After the written statement was filed, vehement objections have been taken from the side of the defendants in that suit regarding the validity of the title of the plaintiffs then as per observation of the Court, the plaintiffs had amended the plaint in that suit by inclusion of prayer for declaration of title, confirmation of possession, etc. Then there was objection regarding pecuniary jurisdiction of the Court as the suit was first pending before the Court of Munsif, Dhanbad. It was found on adjudication by the learned Munsif, Dhanbad that valuation of the suit is above Rs. 12,000/- and as such he had no pecuniary jurisdiction to try the suit and as such returned the plaint for filing before an appropriate Court with proper Court fees. But after return of the plaint to the plaintiffs, they did not submit the same plaint to the higher Court but they filed this partition suit without claiming for declaration of his right, title and interest. It was vehemently objected by all the defendants in the suit regarding the maintainability of the simple partition suit and the Court below has also held that the suit is not maintainable unless there was a prayer for declaration of title etc. Then again prior to that suit for injunction, the plaintiffs had further filed a suit being Title Suit No. 80 of 1970 against the defendant Nos. 7 and 8 and that suit was also dismissed. In the plaint, the plaintiffs have mentioned about the earlier Title Suit No. 109 of 1971 and the return of the plaint, etc., but they have totally suppressed their earlier suit, namely, Title Suit No. 80 of 1970. In that suit, what was the prayer, what were the reliefs claimed could not be brought on the record by either of the parties but from the side of the plaintiffs, it was admitted that there was a suit being Title Suit No. 80 of 1970 which was dismissed. Thus, a the plaintiffs' suit suffers from suppression and concealment of facts.
15. It is also admitted during the cause of trial that there was a partition suit amongst original co-parceners filed by Jilpi and Rohini. That partition suit was numbered as Title (P) Suit No. 377 of 1964. In that suit, it was held that Jilpi had no title over the joint property, but Ropini's share was declared to be partitioned and against that partition decree, an appeal was preferred being Title Appeal No. 55 of the 1968 wherein Kali Pada Deo being the purchaser from Dapu and Rohini Bouri impleaded himself, as according to him, Nitai gifted his share of property in favour of Rohini and Bhoku which was purchased by him. That title appeal was ultimately decreed on compromise and shares have been allotted and Rohini got shares in this suit plot No. 7704, in that partition suit, the whole of the Khata including other plots were included. There was also another suit as is revealed from the records being Title Suit No. 9 of 1977 before the Subordinate Judge, 2nd Court at Dhanbad in which Dapu and others brought suit for declaration of their title over the suit land against one Smt. Indra Bala Dasi and others and in that suit, the plaintiffs prayed for declaration of their title and the title was declared in their favour. Ext. F/1 is the decree of that suit. There is also objection from the side of the defendants that the plaintiffs alleged to have purchased through their vendors from some of the coparceners. Bouries are said to be of scheduled tribe and, as such, for such purchase, the permission of the Deputy Commissioner was necessary as per the provision of the Act but the plaintiffs or their original vendors Md. Roshan although examined in the case did never say about taking of permission nor any document could show that there was ever any permission taken from the authorities as required under the provision of the Act. The anology had been brought when it has been stated by the defendant No. 1 that while he purchased the land from Dapu and Rohini, prior permission was taken from the Land Reforms Deputy Collector, Baghmara at Dhanbad.
16. There are complicated question of facts in the suit and the plaintiffs' suit is a simpliciter partition suit although they originally filed a suit for declaration of title but the same was abandoned. Reasonings have been given to the effect that as per advice, declaratory suit was abandoned and then partition suit has been filed. The plaintiffs name or the predecessors had never been mutated nor they are recorded raiyats. There is no proof that they had either paid any rent to the Govenrment Serista and in every suit filed earlier by the plaintiffs, their title was vehemently denied and on the observation of the Court, the plaintiffs had to pray for declaration of title and interest in earlier Title Suit No. 109 of 1971. Moreover, there was also an earlier suit being Title Suit No. 80 of 1970 and there is nothing on record what were the reliefs claimed by the plaintiffs in that suit but the same suit was dismissed. If in that suit, there was declaration of title sought by the plaintiffs and the said suit was dismissed, then the plaintiffs have got no right to come up for simplicitor suit for partition rather any subsequent suit is definitely barred by the principle of resjudicata if the issues were decided accordingly.
17. When there was an earlier partition suit amongst the co-parceners and had ended in final decree and allotment then if the plaintiffs were really in possession of the suit property, then they must have tried for impleading themselves as parties in that partition suit as was done by the defendant No. 1 Kali Pada Deo but the plaintiffs sit tight. There was an attempt made by the plaintiffs to show their possession through a tenant but that attempt was failed as they failed to prove their such possession. It can also be found that a person who is said to be in possession of the suit property shall allow his possessed land to be allotted to another in a partition suit and he would sit tight over the matter. After the earlier partition suit was also being decreed then also the plaintiffs never came for partition of their allotted share in that suit khata but they came up with a suit for permanent injunction against some of the defendants who are admittedly their co-sharers. When by amendment, they prayed for declaration of their title then the plaint was returned for filing before the appropriate Court having pecuniary jurisdiction. Then, the plaintiffs, to avoid payment of Court fee, filed this partition suit simpliciter without going for declaration of title. It is true that a co-sharer in a suit property can claim for partition simpliciter if his share is defined or prima fade his title is there, the complicated question of title cannot be decided in a simpliciter suit for partition. In the present case, from the very beginning, the plaintiffs' title over the suit land had been denied from the every nook and corner but the plaintiffs did not come for declaration of their title. So, in that view of the matter, partition suit simplicitor is definitely barred. There was also a plea from the side of the defendants that when already partition had been effected in respect of his suit property a second partition suit is not maintainable.
18. Mr. Debi Prasad, Senior Advocate, appearing for and on behalf of the plaintiffs-appellants has referred to a Division Bench judgment of this Court in the case of Narain Tiwari and Ors. v. Saran Narain Tiwari and Ors. AIR 1959 Patna 331, wherein it was held that a second partition suit by a co-sharer is maintainable, if for some reasons or others the previous decree for partition becomes unenforceable and that there was no actual break-up of the title and possession of the co-sharers. The contention of Mr. Debi Prasad, Senior Advocate is that when a co-sharer being a party in the previous partition suit can come up for a fresh partition suit then the plaintiffs in the present suit who were never parties in the earlier partition suit have got every right to come up for partition suit. On legal analogy that might be correct one but unless and until the plaintiffs can clearly prove specific title and that by such title, the plaintiffs became co-sharer then and then only the question of second partition suit may be there in favour of the plaintiffs but here the plaintiffs' title is totally clouded and being questioned from all sides both legal and factual. So, the question of maintainability of the second partition suit may not to be valid in the present suit.
19. Another question was raised that the plaintiffs have come up for simpliciter partition suit in respect of one plot only in the suit khata and had not included the other plots. It is true that partial partition may be claimed in exceptional cases but for such exceptional case, reasons and circumstances must be proved for which partial partition had been sought for. Here, in the present suit, neither in the plaint nor in the evidence, the plaintiffs had given any justification as to why partial partition has been sought for in respect of only one plot in the joint property. So long a partition is not there, amongst the co-sharers then other co-sharers have got right, title and interest over every particle of the immovable property irrespective of plot numbers. In the present case, there was already partition of allotment by a decree of a partition suit earlier and the suit plot has been allotted to one of the co-sharers, without questioning such allotment in the earlier partition suit any as to how the partition was not enforceable or that there was no breaking up of unity of title being shown by the plaintiffs, this partition suit simplicitor by the plaintiffs is not maintainable. Because of the position of law discussed earlier, I am debarring myself to go into the details of the evidence or documents, etc. being proved in the case. In the nature and circumstances of the case, when the plaintiffs are not coming with clean hands and always suppressing their earlier action, they cannot seek, remedy from a Court of law that too simply by a partition suit.
20. In the result, I hold and find that the dismissal of the plaintiffs' suit is proper and just, although taking a bit different view from that of the learned Court below. The appeal is dismissed having no force. No cost is awarded as there remained no contesting respondents in the appeal.