Shyam Sunder v. Laxman Sahu — 1980 DIGILAW 675 (ALL)

JUDGMENT Deoki Nandan, J. - This is a defendant's second appeal from a preliminary decree in a suit for partition declaring the share of the plaintiffs along with defendants nos. 9 and 10 to be 1/2 in the several properties in dispute. The appellants in this Court were defendants nos. 1 to 8 in the suit. The judgments of the two courts below are concurrent. The first plaintiff-respondent Laxman Sahu since deceased and now represented by the other respondents already on the record, who are his sons and grand sons was the son of Ram Das. The first defendant-appellant Shyam Sunder is also the son of Ram Das. Defendant-appellants nos. 2 to 7 are the sons of Shyam Sunder while defendant-appellant no. 8 is the minor son of defendant-appellant no. 3. 2. The properties involved in the suit were 8 in number as per details given at the foot of the plaint. Only the first two of the properties could properly be described as houses, the third is a Bungla in a delapidated condition, the fourth is his Ghari in a delapidated condition, the fifth property is a Bhusaula in a dilapidated condition, the sixth property is an Osara in a dilapidated condition, the seventh property is a house covered with tin-shed ; and the eighth property is a charan with Sehan. All these properties were situate in village Dawarpar, District Gorakhpur, to which the parties belong. The plaintiffs claim was that the family of the parties was a joint Hindu Family governed by the Mitakshara and that there was a separation between the two branches of the plaintiffs and the defendants in the year 1946. The agricultural land held by the family was partitioned between the two branches and they started living separately but the house properties, meaning the eight properties specified in the schedule to the plaint were not then divided between them. A scheme of partition of the house properties was made out in the year 1947 but it could not be given effect to as the conditions on which it was to be finalised were not fulfilled and it remained a paper transaction. It was also pleaded by the plaintiffs that besides the eight properties specified in the schedule to the plaint they had, at their own costs, along with defendants nos. It was also pleaded by the plaintiffs that besides the eight properties specified in the schedule to the plaint they had, at their own costs, along with defendants nos. 9 and 10, constructed a small pucca house and a Ghari and Charan because the ancestral residential house and the Ghari and Charan did not have enough space and was old and dilapidated; that the said constructions were made with the knowledge and consent of the defendants first set, that is, the defendant-appellants ; and that they were the exclusive properties in possession of the plaintiffs and defendants nos. 9 and 10 and that the defendants first set had no connection with the same. 3. Defendants nos. 1 and 4 filed one written statement defendant no. 3 filed another written statement ; defendant no. 5 filed a third written statement ; defendants nos. 2 and 6 filed a fourth written statement and defendant nos. 7 and 8, who were minors : filed a fifth written statement through their respective guardian ad-litem, namely, the first defendant and the third defendant respectively. The defence pleas taken in all these five written statements were more or less identical. According to the defendants there was a final partition of the house properties too in the year 1947; that property no. 7 was never joint and that after the partition the defendants had set up their own exclusive machine under a tin shed which belonged to them exclusively. They also pleaded that apart from the house properties nos. 1 to 6 and 8, the parties had jointly constructed a 40 qubit long building which had five rooms and a Osara and was shown by blue colour in the map at the foot of the written statement. They then pleaded that the family of the plaintiffs and the defendants had become very large and the old residential house no. 1 and the old bunglow and Ghari and Charan became insufficient for their residence and that, therefore, looking to the convenience of the parties it was agreed at the time of the partition that a separate big house would be constructed from the common fund for the residence of the plaintiffs and that along with the constructions referred to above, namely, the five rooms and Osara and Ghari and Charan to be constructed from joint funds, while the remaining properties, namely, properties nos. 1, 3, 4, 5, 6 and 8 be given to the defendants first set, that is, defendant-appellants nos. 1 to 8 and in number 2 which was in a dilapidated condition, the two branches were to have a share each. It was pleaded that thus while the defendants first set were allotted properties nos. 1, 3, 4, 5, 6 and 8, the five rooms and Osara etc. shown by blue colour in the plaint at the foot of the Written statement was given to the plaintiffs' branch and in that connection the construction of a new house shown by the letters Ka Kha Ga Gha was also commenced in the joint land and the material and timber used therein was joint and the defendants first set also paid half the cash expenses amounting to Rs. 2000/- to the plaintiffs and the house was ready except for the roof because at that very time the parties were involved in a big criminal case and saying that house is inauspicious the plaintiffs did not complete the roofing thereof and it consequently fell down and was still there in the form of a Khandhar. The contesting defendants further urged that 10 mango trees, 4 shisham trees, 5 Mahua trees and 8 Neem trees as also Sakhu tree, and timber from the joint forest of the parties and one lac of bricks were used in the construction of the said house. The cost of the said material was in no case less than Rs. 10,000/- besides the sum of Rs. 2000/- paid by the contesting defendants to the plaintiffs. After the falling down of the said new house, the plaintiffs constructed a new building and Ghari and Charan to the south and the east of the five rooms and Osara etc. shaded blue on the map at the foot of the written statement. Some further material, tin, timber and bricks were also given to the plaintiffs from property no. 4 and the construction made by the plaintiffs were made from all these materials. It was pleaded that the plaintiffs had no right or share in properties nos. 1, 3, 4, 5 and 8; that the contesting defendants had spent about Rs. 800/- on electric fittings of house no. 1, in good faith after partition, that further they spent Rs. 2000/- on house no. It was pleaded that the plaintiffs had no right or share in properties nos. 1, 3, 4, 5 and 8; that the contesting defendants had spent about Rs. 800/- on electric fittings of house no. 1, in good faith after partition, that further they spent Rs. 2000/- on house no. 2 and if the plaintiffs wanted a share in it, the contesting defendants were entitled to Rs. 1000/- as compensation, that in case property no. 7 was found to be the joint property then the constructions shown at the foot of the written statement should also be treated as joint and deemed to be partible, in which case the suit would be bad for partial partition. The other pleas raised in the written statement were that the plaintiffs had sold the material of the house, which had fallen down, for Rs. 4000/- and the contesting defendants had spent Rs.800/- on the electric fittings of house no. 1, while if the house shown in the map at the foot of the written statement were partible they were entitled to Rs. 6000/- as compensation and Rs. 400/-for electrification besides the share of Rs. 1000/- out of the sum of Rs. 2000/-invested in property no. 2. Technical pleas of under valuation, deficiency in court fees, limitation etc. were also raised and it was urged that the notice given by the plaintiffs was wrong and a correct reply had been sent thereto. 4. The trial court framed as many as 14 issues. The 9th issue related to valuation and court fees. A preliminary finding on that issue was given by the trial court on 5th August, 1968. The valuation was corrected and deficiency in court fees made good in accordance therewith by the plaintiffs. On issue no. 10, it found that there was nothing to show that the parties had any joint sources of income after the year 1946 or that the income of the different parties was thrown into any common hotch pot of a joint family and held, relying on the plaintiffs evidence, that the new house standing on plots nos. 223 to 229 was not the joint property of the parties and the suit could not be said to be bad for partial partition in as much as it was not a suit for partition of agricultural land and the question whether the land of plots nos. 223 to 229 was not the joint property of the parties and the suit could not be said to be bad for partial partition in as much as it was not a suit for partition of agricultural land and the question whether the land of plots nos. 223 to 229 was joint, could not be the subject matter of decision in the suit. The trial court took up issues nos. 1,3 and 4 together and held that the partition scheme of the year 1947 was never acted upon, that the properties in suit were not partitioned between the parties and were their joint family properties in which the plaintiffs along with the defendants nos. 9 and 10 had share. On issues nos. 2 and 5, it held that the contesting defendants were not the exclusive owners of the properties nos. 1, 3, 4, 6 and 7 and that all these properties were the joint properties of the parties. On issue No. 6 the story set up by the defendant-appellants in paragraph 21 of their written statement about the construction of the house Ka Kha Ga Gha and its falling down was dis-believed by the trial court and issue no. 6 was also answered against the defendants. On issue No. 7, the trial court held that the plaintiffs and defendants nos. 9 and 10 had a share in properties no. 1, 3, 4, 5 and 8. Issue No. 8 was not decided by the trial court with the observation that the parties would be at liberty to agitate the question raised by that issue in the proceedings for preparation of the final decree. On issue Nos. 11 and 12, the trial court held that the suit was not barred by limitation. On issue No. 13, it held that the question of awarding compensation to the defendants as claimed by them in paragraph 29 of their written statement would also be decided in the course of proceedings for preparation of final decree; and holding on issue No. 14 that the plaintiffs and defendants nos. 9 and 10 were entitled to the relief of partition of their share in the property in suit, the trial court decreed the suit by passing a preliminary decree, for partition of their share. 5. Defendants nos. 1 to 8 appealed to the District Court. 9 and 10 were entitled to the relief of partition of their share in the property in suit, the trial court decreed the suit by passing a preliminary decree, for partition of their share. 5. Defendants nos. 1 to 8 appealed to the District Court. Three questions were raised for its determination, namely, (1) Whether the suit is bad for partial partition; (2) Whether the properties in suit were partible; and (3) Whether the claim is barred by limitation. The first question was raised with reference to the new residential house which was alleged to have been constructed by the plaintiffs along with defendants nos. 9 and 10 for their residence at their own expense and was claimed by them to be their exclusive property. The defendants claimed that the house was built from joint family funds and was, therefore, joint family property, and not having been included in the suit as partible property, they pleaded that the suit was bad for partial partition. Agreeing with the trial court, the lower appellate court held that the new residential house belongs to the plaintiffs alone and that, therefore, the suit was not bad for partial partition. 6. On the second question, the lower appellate court held that all the properties in suit were joint and partible and that the share of the plaintiffs in the same was 1 /2. 7. On the third question too, the lower appellate court found in favour of the plaintiffs and dismissing the appeal, it confirmed the decree of the trial court. 8. Learned counsel for the defendant-appellants urged that the finding of the two courts below about the new residential house of the plaintiffs was erroneous in law. He invited my attention to Ext. 6 which is a deed of exchange executed in the year 1950 between Mst. Basanta widow of Gopal Das, Anant Lal and Sant Lal sons of Gopal Das of the one part and Laxman Sahu and Shyam Sunder of the other part. The deed recites that on the south eastern corner of plot no. 230 which was the Sir of Mst. Basanta widow of Gopal Das, Anant Lal and Sant Lal sons of Gopal Das of the one part and Laxman Sahu and Shyam Sunder of the other part. The deed recites that on the south eastern corner of plot no. 230 which was the Sir of Mst. Basanta and her sons Anant Lal and Sant Lal, Laxman Sahu was constructing a house and a small part of the western portion of that house and the Oris thereof fell in that plot and that the area involved was .01 one dhur and that on the other hand a portion of the house and the Oris thereof which was being constructed by Sant Lal fell in plot no. 226 which was the Sir of Laxman Sahu and Shyam Sunder Sahu sons of Ram Das Sahu. The two sets of parties accordingly exchanged those areas of the two plots of land. Learned counsel for the appellants urged that the recital in this document about the construction of the house by Laxman Sahu was consistent with the defendant-appellants, case that it was constructed from joint family funds and the two courts below were in error in relying upon the recital as an admission by Shyam Sunder, the first defendant-appellant, of the fact that the house which was constructed by Laxmam Sahu as being constructed by him alone and was his exclusive property. According to the learned counsel for the defendant-appellants, it was the plaintiffs own case that there was no partition of house property between the parties, and Laxman Sahu being the elder of the two brothers must be deemed to have been the Karta of joint family in relation to the house property. It was accordingly not un-natural to say that the house which was being constructed admittedly on joint family land, was being constructed by Laxman Sahu. The deed of exchange was of course signed by Shyam Sunder Sahu also because the names of both the brothers appear to have been recorded as Sir Holders of the land given in exchange. He also referred to the statements of the two brothers Shyam Sunder Sahu and Laxman Sahu in case no. 25 under Section 176 of the U.P. Zamindari Abolition and "Land Reforms Act vide Exts, 2 and 3 respectively. Laxman Sahu stated, vide Ext. He also referred to the statements of the two brothers Shyam Sunder Sahu and Laxman Sahu in case no. 25 under Section 176 of the U.P. Zamindari Abolition and "Land Reforms Act vide Exts, 2 and 3 respectively. Laxman Sahu stated, vide Ext. 3, that the land involved in that suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, was held by him and Shyam Sunder as Bhumidhars and Sirdars and the share of each one of them was 1/2. He further stated that his house stood on a .60 area of 7 numbers' i.e. seven plots of land, that it was not cultivated at site and that the share of the parties in it was 1/2 each but the house belonged to him. Cross examined he stated that the house stood on 2/3 of 60, and the whole of it was his own. He further stated that the old house belonged to them both but the new house was his own. The plaintiffs case in the present suit was not different. Shyam Sunder in his statement, apart from stating that he had a share with Laxman Sahu in the land involved in that partition suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, stated that land of 7 numbers, that is seven plots having an area of .60 was joint and that none of them had a separate house. A reference to the decree in the partition suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, Ext. 8 shows that Laxman Sahu, who was the plaintiff in that suit had claimed that his house was situate on seven plots no. 223, 224, 225, 226, 227, 228 and 229 having an area of .60 and the suit was decreed for partition of his share. But consolidation proceedings seem to have supervened and partition of all land held jointly by the parties appears to have been ordered by the Consolidation Officer on 24-8-1968, vide Ext. A. 27. 9. The question in issue between the parties was whether the new residential house claimed by the plaintiff to be his own exclusively along with defendants nos. 9 and 10, was construed by him from his own separate funds or was constructed out of the material and with the aid of funds contributed by the joint family as alleged by the defendant-appellants. 9 and 10, was construed by him from his own separate funds or was constructed out of the material and with the aid of funds contributed by the joint family as alleged by the defendant-appellants. The findings of the two courts below on this point are findings of fact and are based on an appraisal of the evidence on the record. The recital in Ext. 6 that the house was being constructed by Laxman Sahu is not the only material on which the finding of the two courts below could be based. There is other material on the records which supports the finding. There is the plaintiffs oral evidence on the point which has been believed. Further while going through the documents on the record, I found a copy of the notice served by the deceased plaintiff Laxman Sahu on Shyam Sunder defendant-appellant no. 1. It is paper No. 50-C. It has not been exhibited although it appears to have been duly proved by Jagat Narain P. W. 1 and its dispatch by registered post acknowledgement due and its receipt vide Exts. 1 and 5 was also duly proved by him. It is referred to in the plaint and in the written statement it is alleged that a correct reply thereto was sent. A copy of the reply is paper no. 64-C., That too has not been exhibited. The posting of that reply by registered post is proved by Ext. A-2 but the acknowledgement card which is paper no. 66-C has not been exhibited. This reply paper no. 64-C was filed by the defendant-appellants. It could be used in evidence against them. I say so because it contains an admission of the fact that the newly constructed house belonged to Laxman Sahu alone. The relevant portion of it reads as follows :- " oktg gks fd vkidk uksfVl fn0 5&11&65 dk izkIr gqvk-----------vkidk fn;k gqvk uksfVl ljklj xyr o cscqfu;kn gS njvly vkius tks [ksr ds ckcr~ rdlhe dk eqdnek nkf[ky fd;k gS vkSj ftlesa ml vkjkft;kr ij ftlesa viuk edku cuk gS mlesa geus 1@2 fgLlk ekaxk gSA mlh ds dkj.k crkSj cafn'k vkius ;g uksfVl fn;k gSA ojuk vkt ls 85 lky gks x;k vkSj vkius mlds ckcr~ dHkh dksbZ loky ugha is'k fd;kA vkius ;g tkurs gq;s fd ;g edku gekjk gS] tkucw>dj vkius xyr uksfVl fn;k gSA " 10. This part of the notice contains a clear admission of the fact that the newly constructed residential house claimed by the deceased plaintiff to be his exclusive property was his own and that the claim of a share therein, made by the defendant Shyam Sunder in the partition suit relating to agricultural land was wrong. Although the admission is followed by certain assertions of facts which are in dispute between the parties, that does not discount the value of the admission because the admission relates to one fact while the assertions relate to other facts, and are independent of each other. Moreover, it is not the case of the defendant-appellants that the new residential house was not constructed by Laxman Suhu, or the plaintiff alone. Their case was that although it was constructed by Laxman Sahu alone and did so after a complete separation from them in respect of house properties also, yet he used the material belonging to the joint family in doing so and that they also contributed money for the same. On a true construction of their pleadings it appears that the defendant-appellants did not claim that the new residential house of the plaintiff was joint family property liable to partition. They claimed that all the house had already been divided and that the new residential house was constructed by the plaintiff Laxman Sahu in accordance with the agreed scheme of partition between them. On such plea raised in defence being found to be wrong, it cannot be made the basis for raising the plea that the suit was bad for not claiming a full and complete partition of all the joint family properties, for it was no body's case that the new residential house was joint family property, notwithstanding the plea that it was constructed with the aid of joint family materials and contributions made by the defendant-appellants. 11. The finding of the two courts below that the suit was not bad for partial partition cannot, therefore, be assailed as erroneous. The findings of the lower appellate court on the other two points decided by it could not also be shown to be erroneous in law, by the learned counsel for the appellants. No other point was pressed before me. The appeal fails and is dismissed, but in all the facts and circumstances of the case. The findings of the lower appellate court on the other two points decided by it could not also be shown to be erroneous in law, by the learned counsel for the appellants. No other point was pressed before me. The appeal fails and is dismissed, but in all the facts and circumstances of the case. I leave the parties to bear their own costs in this Court.