Bhuneshwar Singh v. Shanti Devi — 1989 DIGILAW 350 (PAT)

JUDGMENT S. B. Sinha, J. - This first appeal by some of the defendants arises out of a judgment and decree dated 19.2.1977 passed by Shri Sardar Bhagat Singh Houra, VIIth Additional Sub• Judge Ranchi, in Title Suit no. 42/21 of 1972-76 whereby and whereunder the said learned court decreed the suit in part. 2. The facts of the case lie in a very narrow compass. 3. The plaintiff claims his right, title and interest in respect of the property in suit which he allegedly acquired by reason of a deed of sale dated 10.7.1969 executed by one Rameshwar Singh. 4. According to the plaintiff, the said respondents properties originally belonged to Rameshwar Singh and Chamru Singh. 5. The Genealogy of the said family has been stated in the plaint which is as follows: Bhola Singh Abhaya Nath Singh Chamru Singh Rameshwar Singh : Shanti Devi (Deft. no. 9) Mahadeo Singh, Anup Singh Bigan Singh, Haru Singh, Jamadar Singh (dead) (dead) (dead) (dead) (dead) (Deft. No.8) Jagpati Singh Rayast Singh (Deft. no. 6) (Deft. no. 7) Bhuneshwar Singh, Bissesar Singh, Dhaneshwar Singh Jageshwar Singh (Deft. no. 1) (Deft. no. 2) (Deft. no. 3) (Deft. no. 4) 6. The plaintiff asserted that there has been a complete and effectual partition between Rameshwar Singh and Chamru Singh long before the revisional survey settlement. However, in the revisional survey, record of rights in the names of Rameshwar Singh and Chamru Singh was prepared and exclusive possession was noted against each plot in the remarks column of the Khatian. It has further been asserted that Ramesnwar Singh and Chamru Singh exercised individual possession as exclusive owner in respect of the properties shown in their respective possession in the record of rights and transferred parcel of lands out of their own share not only to stranger of the family but also inter se. The plaintiff further asserted that some disputes and differences having arisen, a suit, purported to have been filed by Rameshwar Singh along with defendants no. 6 to 8 being P. S. no. 81/382 of 1960-62, was instituted against the defendants of Chamru Singh wherein it was wrongly stated that there was no partition by metes and bounds between the branches of Chamru Singh and Rameshwar Singh. According to the plaintiff, the plaint of the suit was returned and the plaintiff, thereof did not take any step in the matter. 81/382 of 1960-62, was instituted against the defendants of Chamru Singh wherein it was wrongly stated that there was no partition by metes and bounds between the branches of Chamru Singh and Rameshwar Singh. According to the plaintiff, the plaint of the suit was returned and the plaintiff, thereof did not take any step in the matter. The plaintiff has asserted that Rameshwar Singh, thereafter transferred the land described in Schedule-A of the plaint by virtue of the aforementioned sale deed dated 10.10.1969 for a consideration of Rs. 7500/- and delivered possession thereof to the plaintiff. In relation to the aforementioned lands a proceeding U/s 145 of the Cr. P. C. (Code of Criminal Procedure) was initiated which was decided against the plaintiff necessitating filing of the aforementioned suit. 7. The plaintiff in the suit prayed for a declaration of title and recovery of possession in respect of the lands in question described in Schedule-A except plot nos. 129, 137 and 138 of Khata no. 50 of village Gutua in respect whereof a decree for declaration of title and confirmation of possession was sought for and in the alternative prayer of the plaintiff was that if it would be found that there was no partition by metes and bounds between Rameshwar Singh and Chamru Singh, a preliminary decree of partition in respect of half share in the land described in Schedule-B be passed in favour of the plaintiff as a transferee of Rameshwar Singh and separate possession, after passing a final decree be delivered to him in respect of lands allotted to his share. 8. In the aforementioned suit the defendant no. 9 Shanti Devi filed a written statement and supported the case of the plaintiffs. 9. However, the contesting defendants nos. 1 to 5 and 8 filed a joint written statement inter-alia alleging therein that the suit is not maintainable in absence of Adhiraj Devi another widow of Rameshwar Singh as a party defendant. The said defendants further denied that there had been any partition whatsoever by metes and bounds by and between Rameshwar Singh and Chamru Singh. 1 to 5 and 8 filed a joint written statement inter-alia alleging therein that the suit is not maintainable in absence of Adhiraj Devi another widow of Rameshwar Singh as a party defendant. The said defendants further denied that there had been any partition whatsoever by metes and bounds by and between Rameshwar Singh and Chamru Singh. According to the said defendants the property in question has all along been in joint possession of the aforementioned Rameshwar Singh and Chamru Singh and thus the purported deed of sale which was executed by aforementioned Rameshwar Singh and Chamru Singh in favour of the plaintiff was wholly illegal and without jurisdiction. According to the said defendants the said purported deed of sale was farzi in nature and no consideration passed in respect thereof and was executed by Rameshwar Singh to the plaintiff who was the son-in-law of his sister-in-law (wife's sister) for whom the plaintiff had some weaknesses. The defendants further denied that the plaintiffs were in possession of the property in question. It was further stated that the defendants no. 1 to 8 are in joint possession in respect of the suit lands including plot nos. 129, 137 and 138 appertaining to Khata No. 50. 10. The learned court below on the basis of the aforementioned pleadings of the parties framed as many as 11 issues which are as follows :- ISSUES "1. Is the suit as framed maintainable ? 2. Has the plaintiff cause of action for suit ? 3. Is the suit barred by the rules of ouster and adverse possession ? 4. Is the suit bad for non-joinder of necessary parties ? 5. Was there a partition by metes and bounds between Rameshswar Singh and Chamru Singh ? 6. Is the deed of sale executed by Rameshwar Singh in favour of the plaintiff on 10.10.1969 legal, valid for consideration and operative ? 7. Is there unity of title and possession between the parties with respect of the suit land? 8. Is the plaintiff entitled to a decree of title, recovery of possession or confirmation of possession over the lands in suit as prayed ? 9. Is the plaintiff entitled to a decree for partition with respect of the suit properties ? 10. Is the plaintiff entitled to mesne profit ? 11. To what relief, if any, is the plaintiff entitled." 11. Mr. 9. Is the plaintiff entitled to a decree for partition with respect of the suit properties ? 10. Is the plaintiff entitled to mesne profit ? 11. To what relief, if any, is the plaintiff entitled." 11. Mr. K. K. Sahay, the learned counsel appearing on behalf of the appellants contended that the suit was liable to be dismissed by the learned court below as Adhiraj Devi was not impleaded as a party in the aforementioned suit. 12. The learned counsel further contended that the learned court below committed illegality in holding that there had been complete partition by metes and bounds by and between the aforementioned Rameshwar Singh and Chamru Singh. Learned counsel further submitted that the very fact that Rameshwar Singh filed the aforementioned P. S. no. 81/60 against the defendants appellants is a pointer to the fact that there had not been any partition by metes and bounds. It was further submitted that in any event the plaintiff's have been claiming his interest through the aforementioned Rameshwar Singh and thus in view of the averments made in aforementioned plaint wherein Rameshwar Singh was also a party he is estopped and precluded from contending that there had been a partition by metes and bounds by and between Rameshwa, Singh and Chamru Singh. 13. Mr. N. K. Prasad learned counsel appearing on behalf of the plaintiff-respondents, on the other hand, submitted that in view of the fact that Rameshwar Singh had already transferred the property which were recorded in his separate possession as also in his share in respect of the properties which were in joint possession of the parties he did not have any subsisting interest in the properties in suit and thus in view of the fact that Adhiraj Devi, having not inherited any right or interest in respect of the properties in suit, she was not a necessary party. 14. Learned counsel further submitted that the very fact that since before the revisional survey settlement operation, the parties had been possession the lands separately, had been residing separately and had been making separate transactions in respect of the lands in their possessions and/inference of the partition by and between Rameswar Singh and Chamru Singh must be drawn. In this connection learned counsel has relied upon the evidence of D. Ws. 7 and 10 who are defendants no. In this connection learned counsel has relied upon the evidence of D. Ws. 7 and 10 who are defendants no. 2 and 8 respectively and submitted that the partition by metes and bounds was proved by their evidence alone. 15. The learned counsel further submitted that in the instant case there having been a disruption in the co-parcenery, the deed of sale executed by the aforementioned Rameshwar Singh and Chamru Singh in favour of the plaintiff can not be said to be illegal or void. In view of the rival contentions of the parties as referred to hereinbefore, the following questions arise for consideration in this appeal. (A) Whether the plaintiff has been able to prove that there has been a partition by and between Rameshwar Singh and Chamru Singh by metes and bounds ? (B) Whether the plaintiff is estopped and precluded from contending that there had been a partition by metes and bounds by and between aforementioned Rameshwar Singh and Chamru Singh in view of the statements allegedly made by Rameshwar Singh in the earlier suit being partition suit no. 81/60. (C) Whether the suit was bad for non-joinder of Adhiraj Devi as a party to the suit? 16. Re-questions (A) and (B) - It is admitted from the entries in the record of rights in respect of Khata Nos. 50, 63 and 49 as contained in Ext. 5 series that the same are joint Khatian whereas Khatian no. 52 stands exclusively recorded in the name of Rameshwar Singh. So far as the entries in the aforementioned Khatian nos. 50, 63 & 49 are concerned, most of the lands have been recorded in separate possession either in the name of Rameshwar Singh or Chamru Singh in the remarks column of said Khatian. However, such plots have been recorded as Ijmal. The lands which have been recorded as Ijmal in the aforementioned Khatian comprises of Bagichas, Khalihans and Phoolbaries etc. So far as the entries in respect of Khatian no. 52 is concerned the same (Ext. 9/A) stands in the name of Rameshwar Singh alone. The witnesses examined on behalf of the plaintiffs' stated that there had been partition by metes and bounds by and between Chamru Singh and Rameshwar Singh. So far as the entries in respect of Khatian no. 52 is concerned the same (Ext. 9/A) stands in the name of Rameshwar Singh alone. The witnesses examined on behalf of the plaintiffs' stated that there had been partition by metes and bounds by and between Chamru Singh and Rameshwar Singh. It is, therefore, necessary to consider the evidence of witnesses examined on behalf of the defendants in order to see as to whether the parties had separated themselves from before or not. Defendant no. 8, Jamadar Singh, who examined himself as D.W. 10 appears to be the eldest member of the family. He in his examination-in-chief stated that the properties are joint and there had been no partition by and between Rameshwar Singh and Chamru Singh. He further stated that there had been no partition by and between Bhuneshwar Singh, Bisheswar Singh, Dhaneshwar Singh and Jageshwar Singh. He further denied the possession of Mathura Singh (plaintiff). In his cross-examination, however, he stated that as he was living with his nephew, he had given the lands of his share to his nephew for cultivation. He admitted that Rameshwar Singh and Chamru Singh had been living separately since he attained hash at the time of revisional survey. He further admitted that Rameshwar Singh had separate residence and the said witness had also separate residence. He further admitted that there had been disputes and differences by and between Rameshwar Singh and Chamru Singh as a result of which Rameshwar Singh started living separately. He further admitted that the Khatian prepared in the revisional survey is correct. He also admitted that separate possession has been recorded in the name of Rameshwar Singh and separate possessions has been recorded in the name of Chamru Singh, his father. He further admitted that in the earlier revenue record of rights, the lands which were in cultivating possession of Rameshwar Singh and Charmu Singh, were shown. 17. He further admitted that before the partition suit being P.S. No. 81/60 was filed, he has given the lands in his share to his nephew. He further admitted that after the aforementioned suit was filed, Bisheswar Singh had stopped giving paddy out of his share. 18. The said witness further admitted that at the time of institution of suit, the plaint was drafted at his instance and he delivered all the papers to the clerk of Hari Kumar Lal, Lawyer. He further admitted that after the aforementioned suit was filed, Bisheswar Singh had stopped giving paddy out of his share. 18. The said witness further admitted that at the time of institution of suit, the plaint was drafted at his instance and he delivered all the papers to the clerk of Hari Kumar Lal, Lawyer. He admitted that at the time of drafting the plaint, he did not instruct that the parties were in separate possession of the properties for the sake of convenience. He further admitted that at that time Shri Hari Kumar Lal, pleader, was instructed about the lands in separate possession of Rameshwar Singh and Chamru Singh as also the land which fell in their own share. Defendant-2 had admitted that at the time of preparation of revisional survey record of rights the parties had been in separate possession of their respective land and in accordance with the separate possession of land, the same have been recorded in Khatian. He also admitted that since he attained hosh, he did not see another person cultivating the lands of Rameshwar Singh. He further admitted that his sister stayed with him. He, however, denied that Rameshwar Singh executed deed of sale in favour of the aforementioned sister. 19. From the aforementioned evidence of D. Ws 7 to 10 it is evident that Rameshwar Singh had been cultivating his lands separately from a long time and he had separate mess and residence. It is further evident that he had been making separate transactions in respect of the lands which fell in his share. Apart from Ext-1 whereby and whereunder Rameshwar Singh transferred his interest in favour of the plaintiff, it further appears that he also executed a deed of sale in favour of the sister of D. Ws (Ext. 7), Smt. Akhauri Devi. From Ext. 6 it appears that the plaintiff's name was mutated in the office of the State of Bihar pursuant to the deed of sale executed in his favour by Rameshwar Singh. The said order of mutation is Ext. 6. 20. True it is that from a copy of the plaint filed in partition suit no. 81/60 (Ext-B) it appears that Rameshwar Singh along with defendant nos. 6, 7 and 8 filed the aforementioned suit for partition. The said order of mutation is Ext. 6. 20. True it is that from a copy of the plaint filed in partition suit no. 81/60 (Ext-B) it appears that Rameshwar Singh along with defendant nos. 6, 7 and 8 filed the aforementioned suit for partition. From a perusal of Ext-B it appears that following allegations have been made thereto:- (i) That the lands given in schedule below, which are the subject matter of partition and the ancestral lands of the parties over which the ancestors and after their death the parties are coming in joint possession over the same. (ii) That the suit lands are cultivated jointly by the parties and there has been no partition by metes and bounds between the parties or their ancestors but for the sake of convenience the parties art cultivating some lands separately but without any proper partition, hence all the suit lands of this partition still joint and are in joint possession. (iii) That the plaintiffs feel inconvenience in remaining joint with the defendants, hence the plaintiffs several times requested the defendants to partition the suit lands amicably according to respective shares but the defendants did not pay any heed to the request of the plaintiff, hence there could not be any partition and the property is still joint." 21. However, from the schedule appended to the said plaint it appears that first the schedule refers to the share of Rameshwar Singh. Similarly share of Chamru Singh has been separately shown in schedule-II some plots have shown in joint possession in a separate schedule. Mr. K.K. Sahay submitted that in view of the statements made in paragraphs 5 and 6 of the plaint in partition suit no. 81/60, it is clear that there has been no partition by metes and bounds by and between Chamru Singh and Rameshwar Singh who being one of the plaintiffs in the said suit, the plaintiff-respondent cannot take any stand contrary to what had been stated in paragraphs 5 and 6 of the plaint of the earlier suit. 22. Mr. N. K. Prasad, learned counsel appearing on behalf of the respondents, on the other hand, submitted that entire plaint must be read as a whole. 22. Mr. N. K. Prasad, learned counsel appearing on behalf of the respondents, on the other hand, submitted that entire plaint must be read as a whole. According to the learned counsel it is clear from the fact that in the schedules of the said plaint share of Rameshwar Singh and Chamru Singh have been separately mentioned in accordance with the respective possession of the parties as shown in the records of rights and further in view of the fact that only those lands have been shown which were recorded as being in the joint possession in the revisional survey settlement record of rights (Ext-5 series). 23. Admission made by a party in a pleading has to be read as a whole. In the instant case, it is evident from the evidence of the defendant no. 8 (Jamadar Singh) who has examined himself as D. W. 10 that the plaint of the said suit was drafted at his instance. From a perusal of the evidence of the said witness it is evident that the said suit had to be filed at his instance, in view of the fact that his nephew had not been giving his share of crops to him which had been given to him earlier. In such a situation a party which is sought to be made bound by reason of an alleged admission made by his predecessor-in-interest has to be construed taking into consideration the surrounding circumstances and the conduct of the parties. It is well known that an admission can be withdrawn or explained away. Had Rameshwar Singh been alive it was possible for him to explain as to under what circumstances the suit was filed. 24. There is nothing on record to show that the plaint was drafted at the instance of Rameshwar Singh. It further appears from the evidence of P. W. 9 clerk of Shri Hari Kumar Lal, Advocate, that Rameshwar Singh did not instruct the lawyer to draft the plaint and that he did not put his L.T.I. in the plaint. As noticed herein before D.W. 10 admitted that the plaint was prepared by Shri Hari Kumar Lal, Advocate. In this view of the matter it must be held that no part was played by Rameshwar Singh in preparing the draft of the aforementioned partition suit no. 81/60. As noticed herein before D.W. 10 admitted that the plaint was prepared by Shri Hari Kumar Lal, Advocate. In this view of the matter it must be held that no part was played by Rameshwar Singh in preparing the draft of the aforementioned partition suit no. 81/60. From the evidence of P.W. 9 it further appears that he even did not put his L.T.I. thereon. 25. It is now well settled that although a presumption of jointness has to be drawn but when a partition by disruption is alleged coupled with the fact that patties are in separate possession of the properties, such a plea has to be judged upon taking into consideration the cumulative effect of various factors namely separate residence, separate mess, separate cultivating possession and separate transaction etc. Even if it is assumed that there had been no partition by metes and bounds by and between Rameshwar Smgh and Chamru Singh, from the records of the case it is evident that the very fact that Rameshwar Singh had separated himself owing to the differences which had arisen by and between him and Chamru Singh, it must be held that there had been intention for separation and thus there has been a disruption in the joint family. Kameshwar Singh had been in separate possession of the property in question, from before when the revisional survey settlement records were prepared. In this case the Defendant-10 admitted separate residence, separate mess, separate cultivating possession of Rameshwar Singh. From ext. 7 it is evident that Rameshwar Singh has also been dealing with his properties separately. In fact he sold part of the land which was in his exclusive possession to the sister of the defendant no. 2. It is further evident from the evidence of D.W. 10 that he had been receiving the share of the produce according to his share. The very fact that in his deposition he stated that he had been receiving the yield in respect of his share goes to prove that parties had separated themselves, for all intent and purport. Thus there cannot be any doubt that there has been a partition by metes and bounds by and between Rameshwar Singh and Chamru Singh and some plots were shown in joint possession of the parties and which were kept joint in view of the nature thereof namely Khalian, Bagicha and Phoolbari. 26. Thus there cannot be any doubt that there has been a partition by metes and bounds by and between Rameshwar Singh and Chamru Singh and some plots were shown in joint possession of the parties and which were kept joint in view of the nature thereof namely Khalian, Bagicha and Phoolbari. 26. The contentions raised on behalf of the appellant have thus to be rejected. In this view of the matter it has to be held that Rameshwar Singh was entitled to execute the aforementioned sale deed, the genuineness whereof has not been questioned before me and that Adhiraj Devi was not necessary party in the suit. In the result, there is no merit in this appeal which is accordingly dismissed but there will be no order as to costs.