Kamalu Mian v. Kudrat Mian — 1989 DIGILAW 416 (PAT)

JUDGMENT S. B. Sinha, J.- This first appeal is directed against the judgment and decree dated 28-3-1980 passed by Shri Indrajit Mishra, 4th Additional Subordinate Judge, Palamu at Daltonganj in Partition Suit No. 30/78, whereby and whereunder the said learned court decreed the plaintiffs-'respondents' suit for partition. 2. The facts of the case lie in a very narrow compass. 3. The plaintiffs filed the aforementioned partition suit no. 30/78 for a decree for partition in respect of the lands appertaining to Khata Nos. 60, 61 and 158 of village Kharaundhi. 4. The relationship of the parties, which would appear from the genealogical table as mentioned, is not disputed: Goga Jolaha Shadi Jolaha Hussaini Jolaha Kharsani Jolaha Badaral Mian Kudrat Mian (plaintiff no.1) (daughter) Naskalia Bibi (plaintiff no.2) Tufani Mian Wazid Mian (Defdt. No.2) Kamalu Mian (Defdt. No.1) 5. According to the plaintiffs, the land appertaining to khata no. 60 was recorded in the name of Goga Jolaha, whereas the lands appertaining to khata nos. 61 and 158 which have been described in Schedules Band C appended to the plaint respectively, were recorded in the name of Goga Jolaha along with Gopi Teli and Bandhu Teli. The share of the parties in respect of the lands appertaining to khata no. 61 being half and whereas, in respect of lands appertaining to khata no. 158, Goga Jolaha was shown to have two shares whereas one Manu Teli was shown to have four shares and Gopi Teli and Budhu Teli have one share each. 6. The Plaintiffs' further case is that in respect of the lands appertaining to the aforementioned khata nos. 61 and 158, Goga Jolaha continued to be in joint possession with other recorded tenants for some time but thereafter, there had been a partition, as result whereof, the lands in suit as contained in Schedule B of the plaint was allotted to Goga Jolaha. 7. According to the plaintiffs, Goga Jolaha continued to be in exclusive possession of the properties in suit till his death, whereafter, the said lands were inherited by Kharsani Jolaha and Hussaini Jolaha, his two sons; the third son Shadi Jolaha having predeceased his father, left behind two sons Badral Mian and Kudrat Main. Kharsani Jolaha died leaving behind two sons Tufani Mian and Wazid Mian. Wazid Mian was the defendant no. Kharsani Jolaha died leaving behind two sons Tufani Mian and Wazid Mian. Wazid Mian was the defendant no. 1 in the court below, whereas Kamalu Mian son of Tufani Mian was the defendant no. 1. Both the aforementioned defendants are the appellants in this appeal. 8. Badral Mian, son of Shadi Jolaha left behind a daughter Naskalia Bibi, who along with Kudrat Mian, son of Shadi Jolaha filed the aforementioned suit for partition. 9. The plaintiffs, thus, claimed half share in the lands in suit. 10. The defendants, in their written statement, alleged that Goga Jolaha was not having good relation with his other two sons Shadi Jolaha and Hussaini Jolaha and had been living with his third son Kharsani Jolaha. 11. It was further alleged that out of love and affection, Goga Jolaha orally gifted the lands appertaining to khata no. 60 as also his share in respect of the lands appertaining to khata nos. 61 and 158 in favour of Kharsani Jolaha, who thereafter, came in exclusive possession of the lands in question and become the owner thereof. 12. Allegedly, as Shadi Jolaha began to lay a claim, a Panchayat was held in the year 1942 and it was held therein that Kharsani Jolaha alone was entitled to the aforementioned lands. 13. It was further alleged that however, out of sympathy as also at the request of the Panches, the aforementioned Kharsani Jolaha gave two acres of land to Shadi Jolaha. The defendants, thus, claimed that the plaintiffs have no right title and interest in the lands in suit nor were they in possession thereof. 14. From the facts, as mentioned hereinbefore, it is absolutely clear that the defendants claimed exclusive right, title and interest and possession in or over the suit lands except two acres of land by reason of a oral gift allegedly made by Goga Jolaha in favour of Kharsani Jolaha. 15. So far as the plea of aforementioned oral gift is concerned, the defendants in paragraph 15 of the written statement have alleged as follows: "That when situation became un-bearable and intolerable, Goga Jolaha gave some lands of khata no. 85 of village Bajarmarwa, P. S. Bhawnathpur, Distt. Palamau and some other lands to his two sons and asked them to live separately. Being well pleased with Kharsani Jolaha and his wife and children. Goga gifted the lands of khata no. 85 of village Bajarmarwa, P. S. Bhawnathpur, Distt. Palamau and some other lands to his two sons and asked them to live separately. Being well pleased with Kharsani Jolaha and his wife and children. Goga gifted the lands of khata no. 60, 61 and 158 to Kharsani and put him in possession of the same so that after his death the other brothers might not claim a share in these lands. Kharsani accepted the gift and came in possession of the land in his own right as a donee. This happened some years after the survey settlement operation". 16. From a perusal of the aforementioned paragraph, it would be evident that neither any date nor any year of the oral gin by Goga Jolaha has been pleaded. 17. In view of the fact that the defendants admitted the relationship of the parties, it was for them to prove the factum of alleged oral gift made by Goga Jolaha in favour of one of his Sons Kharsani Jolaha. 18. Apart from the evidences adduced on behalf of the plaintiffs who proved the case of possession, the defendant appellant no. 1, who examined himself as D. W. 1, appears to have admitted in paragraph 8 of his deposition that the lands of Khata no. 60 are in cultivating possession of the plaintiffs and, the defendants. 19. He further admitted that the plaintiffs had got possession over half share and the remaining half share is in possession of the defendants-appellants. 20. In paragraph 6 of his deposition he stated that over 13 Kathas of land in khata no. 61 was in possession of Shadi Jolaha and some lands of khata no. 158 was also in cultivating possession of Shadi Jolaha. 21. He thus, admitted joint possession of the plaintiffs with the defendants. 22. It further appears from the statements of Kudrat Mian that his statements made in his examination in chief, with regard to joint possession were not challenged in cross-examination and in this view of the matter, the defendants must be deemed to have admitted the case of the plaintiffs. 23. Even D. W. 4, Dildar Mian, who sought to prove the oral gift admitted joint possession of the parties and thus also the defendants failed to prove the story of the alleged oral gift. D. W. 4 also stated that Kudrat Mian had some lands in his possession. 24. 23. Even D. W. 4, Dildar Mian, who sought to prove the oral gift admitted joint possession of the parties and thus also the defendants failed to prove the story of the alleged oral gift. D. W. 4 also stated that Kudrat Mian had some lands in his possession. 24. He further stated that Goga Jolaha had partitioned the lands amongst his sons and accordingly the survey records were prepared, which was not the case of the parties. It has been stated that the parties have been coming is possession of their respective lands in accordance with the entries made in the survey papers. 25. The aforementioned statements completely demolish the case of the defendants because according to them only after a survey settlement operation, Goga Jolaha allegedly made a oral gift in respect of his lands recorded in khata no. 60 and his share in respect of the lands appertaining to khata nos. 61 and 158. 26. Mr. S. N. Singh, the learned counsel appearing on behalf of the appellants very fairly stated that in view of the admissions made by D. W. 1 and the statements of the witnesses examined on behalf of the defendants, he cannot challenge the findings of the learned court below to the effect that the defendants had failed to prove the case of oral gift, allegedly made by Goga Jolaha in favour of Kharsani Jolaha. 27. He however, submitted that although the defendant no. 1 examined himself as one of the witnesses, the defendant no. 2 had also the right to examine himself as a witness. 28. He therefore, submitted that when an application was filed for examination of the defendant no. 2, the same was rejected, inter alia, on the ground that no application in terms of Order 18, Rule 3-A of the C.P.C. was filed before the learned court below passed his order dated 21.2.1980. 29. From the order-sheet dated 15.2.1980; it appears that after closure of the case of the plaintiff, the defendants examined two witnesses including the defendant no. 1 himself. On 18.2.1980, two more witnesses on behalf of the defendants were examined and cross-examined. Only on 19.2.1980, an application was filed that the defendants intended to prove an alleged unregistered relinquishment deed. On that date D. W. 5 was examined. 1 himself. On 18.2.1980, two more witnesses on behalf of the defendants were examined and cross-examined. Only on 19.2.1980, an application was filed that the defendants intended to prove an alleged unregistered relinquishment deed. On that date D. W. 5 was examined. On 20th February, 1980 an application was filed purported to be under Order 18, Rule 3-A of the Code of Civil Procedure, whereby the defendants sought to examine the defendant no. 2. 30. It appears from the records that the plaintiffs filed objection with regard to taking of the alleged deed of relinquishment in the evidence, inter alia, on the ground that the said document has been filed after the closure of the case of the plaintiffs and the plaintiff was thus taken by surprise. The plaintiff's further objected to the prayer of defendant no. 2 being examined as a witness, inter alia, on the ground that the same was a designed move to make the litigation a time taking and expensive one. 31. From the order sheet dated 11.2.1980, it appears that the learned trial court took into consideration the rival contentions in respect of the aforementioned two applications filed on behalf of the defendants-appellants and came to the conclusion that the purported unregistered deed of relinquishment was not admissible in evidence. He further came to the conclusion that the defendant no. 2 cannot be permitted to examine himself in view of the provisions contained in Order 18, Rule 3-A of the C. P. C. 32. Mr. S. N. Singh, the learned counsel appearing on behalf of the appellants submitted that in a case of this nature where the defendant no. 2 apprehended that the defendant no. 1 has been gained over by the plaintiffs, the learned court below ought to have allowed the defendant no. 2 to examine himself, so as to comply with the principles of natural justice. 33. The submission of the learned counsel is merely stated to be rejected. 34. At no point of time, the defendant no. 2 wanted to examine himself as a witness. 35. Under Order 18, Rule 3-A of the Code of Civil Procedure, a party who had not examiner himself as a witness, may be permitted to be examined only in the event sufficient cause is shown in relation thereto. The defendant no. 34. At no point of time, the defendant no. 2 wanted to examine himself as a witness. 35. Under Order 18, Rule 3-A of the Code of Civil Procedure, a party who had not examiner himself as a witness, may be permitted to be examined only in the event sufficient cause is shown in relation thereto. The defendant no. 2 has failed to show any cause whatsoever as to why he did not examine himself immediately, after the examination of defendant-appellant no. 1. 36. It is evident that the application was filed by the defendants to the effect that the defendant no. 2 intends to examine himself only for the purpose of filling up the lacuna in the case which came into being in view of the categorical admissions made on the part of the defendant no. 1 and his witnesses. 37. It is not a case, as suggested by the learned counsel, where one of the defendants had been gained over by the plaintiff as no suggestion whatsoever has been given to this effect either in the application under Order 18, Rule 3-A of the Code of Civil Procedure nor the same was argued before the learned court below. 38. Even, in this appeal both the defendants have joined hands as appellant. In this situation, the submission of Mr. Singh that the defendant no. 1 might have been gained over by the plaintiffs, cannot be said to have any substance whatsoever. 39. Further from the judgment of the learned court below, it appears that the defendants were given sufficient opportunities to move this Court in revision against the order dated 20th February, 1980 passed by him but despite the same no revision was filed nor at the time of argument the court was assisted by the counsel for the defendants-appellants. In this situation, there is no escape from the conclusion that the defendants-appellants merely intended to prolong the trial by filing frivolous application. 40. In any event, as the learned court below has exercised his discretion which is neither perverse nor unjust, it is not possible for this Court to set aside the said order, at this stage. 41. In view of the findings aforementioned, it must be held that there is no merit in this appeal which is accordingly dismissed. However, in the facts and circumstances of this case, there will be no order as to costs.