Hrishikesh Panda v. Ram Narayan Panda — 1996 DIGILAW 386 (CAL)

JUDGMENT The unsuccessful plaintiffs are in appeal against the Judgment and Decree passed by the learned Additional District Judge, 3rd Court, Midnapore in T. A. No. 190/73 dated 29.8.74 and 6.974 respectively affirming the judgment and decree passed by the learned Munsif, Additional Court, in T. S. No. 10/73 dated 12th April, 1973 and 30th April, 1973 dismissing their suits. 2. Plaintiffs filed the suit for declaration of their title over 'ka' schedule lands and for permanent injunction restraining the defendants from disturbing their peaceful possession. 3. The skeletal picture of the case of both parties is as follows :- That the ancestors of plaintiffs originally were the residents of village Tulsichara in the District of Puri within the province of Orissa. They came to reside in the suit village in or around 200 years ago which was then within Orissa province. But incourse of time, the village was disannexed from the Orissa State; amalgamated with the Bengal province. Notwithstanding such amalgamation of the area with the province of Bengal they followed rites and ceremony under Mitakshara Law. The defendant No.1 was the father of the plaintiff No.1 and proforma defendant No.4. The defendant No. 4 expressed his inclination to marry for the second time even during the presence of his first wife, sons and daughter. Therefore, there was a family dissension and illfilling between the members which led to reference to the local gentlemen to subside their misunderstanding. The parties divided amicably their properties and in evidence of such partition, they prepared a ‘Talika-Phardas’ or ‘Partition List’ on 24th Magh, 1358 and accordingly, the plaintiffs got the ‘ka’ schedule lands towards their share. Thus, it is claimed that they have been in exclusive possession and enjoyment of the lands mentioned I ‘ka’ schedule and have been paying rents to the State therefore. When the Tahsildar had mischievously claimed the suit lands to have vested in the State Government, the plaintiffs were obliged to file a title suit No. 261/65. But it was, self-same cause of action. Thereupon the plaintiffs have again filed the instant suit after due service of notice to the Collector, Midnapore and Collector, 24-Parganas representing the State of West Bengal under Section 80 of the C.P.C. 4. The State of West Bengal, the defendant Nos. But it was, self-same cause of action. Thereupon the plaintiffs have again filed the instant suit after due service of notice to the Collector, Midnapore and Collector, 24-Parganas representing the State of West Bengal under Section 80 of the C.P.C. 4. The State of West Bengal, the defendant Nos. 2 and 3 have, inter alia, denied that there was any partition, muchless, a list showing allotment of shares to the different members of the family of the plaintiffs. The defendants also disputed about the governance of the plaintiffs under the provisions of Mitakshara Law. It is the specific stand of the State that since the defendant No. 1 was a big landlord-interme-diary consequent upon vesting, whatever rights he had, those have vested in the State free from all encumbrance. Accordingly, the record of right was prepared in his name showing fresh settlement. The alleged ‘Talika-Phardas’ or ‘Partition List’ is said to an ante-dated, fabricated and manufactured one subsequently to suit the purpose of the plaintiffs. 5. The defendant Nos. 4 to 8 have filed their written statement supporting the plaint case; so also the defendant No. 1. 6. The learned trial Court after careful consideration of the evidence on record and on going through the various documents came to hold that the properties in schedule 'kha' were admittedly the ancestral property of the plaintiffs' family. The memo of partition which was marked N-1 is an unregistered document prepared on plain papers. Since the partition list under which the actual partition had taken place said to have showing division of their properties being under an unregistered instruments, it would not create any present right either in favour of the plaintiffs or defendant Nos. 1 and 4 to 8. The trial Court further observed that the alleged partition list is discolourised, ante-dated and prepared only to suit the purpose of the plaintiffs. Had there been any real partition, how could the plaintiffs and defendants 4 to 8 keep quite without raising any objection at the time of preparation of record of right. Subsequent conduct of the parties would also lead to an irresistible conclusion that there was no partition among them as they have been jointly residing and enjoying the property. The separate possession as claimed by the plaintiff appeared to be shaky and unworthy of credence. Subsequent conduct of the parties would also lead to an irresistible conclusion that there was no partition among them as they have been jointly residing and enjoying the property. The separate possession as claimed by the plaintiff appeared to be shaky and unworthy of credence. Therefore, in such back-ground, the learned trial Court was inclined to dismiss the suit of the plaintiffs. 7. The appellate Court on further reappraisal and reevaluation of the evidence has affirmed the finding that the plaintiffs family was governed by the Mitakshara School of Hindu Law. It further observed that undisputedly suit 'ka' schedule property belonged to plaintiff s family. The genealogical attached to the plaint had, however, remained unchallenged by the defendants. The appellate Court while considering the validity of partition list had expressed its opinion that mere look to the partition list, it was so recent any ordinary person with average intelligence would unhasitatingly jump to the conclusion that it was recent origin which might have been prepared just before the filing of the suit. It has also held that there was an attempt to discolourise the pages of the partition list to present a show of an old document. He doubted the credibility of the plaintiffs witnesses and held that their testimony was uninspiring untrustworthy and unbelievable on the question of partition. Therefore, in the above back-drop on the basis of such incredible evidence the appellate Court was constrained to affirm the finding of the trial Court. The appellate Court on careful examination had an occasion to hold that Ext, 8b, a rent receipt was not genuine as there was over• writing of the year 70' in place of 60' by use of magnifying glass. There has been no reasonable explanation by the plaintiffs to dispel such doubt. 8. Mr. Roy Chowdhury, the learned Senior Advocate appearing for the appellants, has urged with strong intensity of conviction that in this case both the Courts below have erred in law as well as on facts in coming to the conclusion that there was no partition between the defendant No. 1 and his sons. 8. Mr. Roy Chowdhury, the learned Senior Advocate appearing for the appellants, has urged with strong intensity of conviction that in this case both the Courts below have erred in law as well as on facts in coming to the conclusion that there was no partition between the defendant No. 1 and his sons. in the event, the defendant No.1 is held to have been governed under the Mitakshara School of Hindu Law all the sons by birth acquired absolute right over the joint family property, There are different modes for effecting partition among the members of the Hindu undivided family, (i) by decree of a Court, (ii) by a registered deed of partition. (iii) oral partition followed by a partition list. In the instant case, when the parties followed the third method to effect division of their properties, it was not open to the Courts below to disbelieve the plea of their partition and to hold that the parties still remained to be joint. Even without partition, if an undivided member expressed his Intention to divide the properties by severance of joint status, then such joint status will break and it would lead to Joint family disension and thereafter each co-sharer can claim a share under the theory of notional partition. 9. Mr. Roy Chowdhury further took an inexorable plea that partition list which was produced before the Court and marked as an Ext., subsequently, the Court could not come to any finding other than believing the same. When there was no evidence on behalf of the State that the partition list was either ante-dated, manufactured or fabricated, it was not open to the Courts below to arrive at such erroneous conclusion. 10. Even assuming the question of partition is a factual plea, but, since, both the Courts have rendered perverse judgment which could entitle the appellant to agitate such fact in the 2nd appeal. During the pendency of 2nd appeal, the respondents 4 to 47 were impleaded. 11. The learned Advocate appearing for the State Mr. S. C. Bose, has advanced series of contention in support of the judgments of the Courts below by submitting that in the 'Partition List' or 'Talika-Phardas' there has been no mention of previous partition. Under the list the parties cannot claim to have divided their properties. 11. The learned Advocate appearing for the State Mr. S. C. Bose, has advanced series of contention in support of the judgments of the Courts below by submitting that in the 'Partition List' or 'Talika-Phardas' there has been no mention of previous partition. Under the list the parties cannot claim to have divided their properties. A partition list is only permissible when there was previous partition and in token of such partition if they prepared list showing the allotments. In the instant case, the plaintiffs had claimed that they divided the properties under the partition list and therefore, in such back-ground the list required to be registered and without registration no right would accrue thereunder. When the factum of partition itself becomes doubtful, by payment of land revenue which was accepted without prejudice cannot raise a presumption of partition. The submission of 'B' form by the defendant No.1, on 17.1.1961 through one of his sons demolishes the plea pre• partition as suggested by plaintiffs. 12. It is, nonetheless, true that the family is governed by Mitakshara Hindu Law and they still observe the rites and ceremony under that law. It is the plaintiff's case that there was an amicably partition and in accordance there with a partition list was prepared which is marked as Ext. 'N'. The learned trial Court as well as the Court of appeal were sceptical about such partition list as the parties did not disclose about the said partition list till it was filed in Court. It did not see the light of the day till the year 1358 B. S. The learned Advocate appearing for the State has vehemently argued that this memo of partition was subsequently prepared only to suit the purpose of the parties. Since, it was created and manufactured having been ante dated such partition list does not create any right in favour of the parties. The learned trial Court has discussed the evidence of the witnesses on the question of the partition list at great length and was not inclined to rely on the testimony of the witnesses as such evidence was inconsistent, contradictory and also conflicting. The appellate Court also while confirming its findings on partition list had reassessed evidentiary value of those witnesses. The learned trial Court has discussed the evidence of the witnesses on the question of the partition list at great length and was not inclined to rely on the testimony of the witnesses as such evidence was inconsistent, contradictory and also conflicting. The appellate Court also while confirming its findings on partition list had reassessed evidentiary value of those witnesses. Since both the Courts have disbelieved the partition purported to have taken place under the partition list, it is not open to the appellant again to reiterate such stand in the 2nd appeal. Therefore, it is unnecessary for this Court to reassess and reevaluate the evidence placed by the plaintiffs on the question of partition. 13. Mr. Roy Chowdhury, the learned Counsel appearing for the appellants has argued with strong intensity of conviction that since there was no material for the Court to arrive at the conclusion that the memo of partition was ante-dated and fabricated, therefore the appellant could certainly question about the propriety of those findings. The trial Court and the appellate Court as well have not only considered the evidence but the conduct, of the parties and also the other circumstances which led them to raise a reasonable inference that the partition as claimed by the plaintiff under the partition list was only a make believe and camouflage. 14. The learned Advocate appearing for the State place strong reliance on a formidable point against the plaintiff-appellants that bad there been actually any partition in terms of such memo, the Parties could not have omitted to bring it to the notice of the settlement authorities for recording the seperate parcel of land in the Dame of the each co-sharer and in accordance with such partition and seperate possession the settlement records could have been prepared. I found there is substantial force in the said submission. 15. The plaintiff claimed partition in Bengali's year 1358 B. S. and therefore, at least thereafter the parties were expected to pay rent seperately to the ex-landlords in respect of the respective shares. There is no iota of evidence that the parties bad been seperately paying rent to the ex-landlords. 16. Mr. Roy Chowdhury, the learned Senior Counsel appearing, for the appellant, of course, has submitted that the plaintiff No.1 on the basis of partition bas been paying and revenue to the Anchal and the State under Ext. 'A' series. There is no iota of evidence that the parties bad been seperately paying rent to the ex-landlords. 16. Mr. Roy Chowdhury, the learned Senior Counsel appearing, for the appellant, of course, has submitted that the plaintiff No.1 on the basis of partition bas been paying and revenue to the Anchal and the State under Ext. 'A' series. The learned trial Court did not like to attach much importance on those rent receipts as those were issued after the date of vesting. It is the settled position that mere payment of rent seperately to the State would not raise a presumption of partition. The learned Advocate appearing for the appellant has also placed reliance on another circumstance that since the plaintiff and his two brothers did not get 'Bastu' on partition, thus, they purchased one 'Bastu' jointly from Sristidhar Panda. But on a careful reading of the statement of P. W. 2 Sristidhar Panda it appears that the plaintiff No.1, his brothers and father have been residing in one 'Bastu'. Therefore, this statement completely militates against the plea of partition. Therefore, the learned trial Court did not also incline to rely on such slender evidence of seperate possession. 17. After the date of vesting the defendant No. 1 bad submitted application for settlement of land through his other sons. He did not ever claim that the properties which had vested in the State Government had been divided earlier, There is another striking feature in this case that even though the brothers of the plaintiffs had filed the 'B' form on behalf of their father, they never claimed partition to have taken place. Some of the lands which have been claimed by the plaintiff No.1 had been settled in favour of the defendant No.1. So, the learned trial Court after taking cumulative effect of the evidence had disbelieved the claim of partition. 18. The appellate Court while discussing the import of the partition memo has observed that since the memo of partition is not a 'Pharda' but it was a fullfiedged deed bearing the signature of the parties and the scribe Sristidhar. Therefore, it required registration. In the absence of registration, such partition deed cannot create right in favour of any parties to the said deed Mr. Therefore, it required registration. In the absence of registration, such partition deed cannot create right in favour of any parties to the said deed Mr. Roy Chowdhury, the learned Counsel has taken an incontrovertible plea that assuming the said memo of partition required registration and for want of such registration if the same is not liable to be relied, then it could be assumed that at least there was a severance status among the members of the family. In that view, the State could not have vested the land which have been under the exclusive possession of the plaintiffs. 19. To examine the said contention of Mr. Roy Chowdhury, it is necessary to rely upon a decision reported in (1) 86 CWN 202 in the case of Arun Kumar Bhakat v. State of West Bengal & Ors. The division bench of this Court presided over by Chittatosh Mookherjee, J. (as he then was) held as follows:- "A suit was filed by the plaintiffs praying for declaration that since 12th Magh, 1358 B. S. by virtue of an amicable deed of partition, the plaintiffs and defendants were no longer co-parceners and the persons mentioned in the schedule to the plaint exclusively owned the lands allotted to them. An alternative prayer for partition was also made in the event of the Court finding that there was no previous partition. The plaintiff's case was that their predecessors hailed from Arah in Bihar and although residing in Murshidabad they were still governed by the Mistakshara School of Hindu Law. The plaintiff's father Jagadish was the Karta of the Mitakshara co-parcenary consisting of himself and his sons and on 12th Magh, 1358 B. S., the heirs of Jagadish had amicably partitioned the co-parcenary properties, when a memo of partition was drawn up. As the said partition could not be given effect to amicably suit for partition was instituted in October 1958. A solenama decree brought that suit to an end and it acknowledged that the amicable partitions was effected on 12th Magh, 1358 B. S. and since that date the co-parcenary was disrupted and the parties were holding the lands allotted to them as their exclusive properties. The State of West Bengal, however, disputed the said partition and treated them as members of a Mitakshara undivided joint family compelling them to file this suit. The State of West Bengal, however, disputed the said partition and treated them as members of a Mitakshara undivided joint family compelling them to file this suit. The State of West Bengal alone contested the suit by filing a written statement in which it denied the plaint case. The suit was decreed in part and as the Subordinate Judge disbelieved the factum of severance on 12th Magh, 1358 B. S. However, a decree for partition in the preliminary form was passed giving rise to a cross-objection. In the appeal, it was urged that (i) the plaintiffs and the defendants were individually entitled to retain their co-parcenary properties under Section 6(1) of the West Bengal Estates Acquisition Act and the State had acted illegally in treating them as one single unit and in vesting their lands and (b) a Mitakshara Joint Hindu Family was not a legal entity and the members of the co-parcenary were entitled to retain the suit lands in severally their respective shares. Held, as the plaintiffs could not prove severance among co-parceners, the entire body of the co-parceners constituting the co-parcenary were to be treated as one person and the said members of the co-parcenary as only one single unit were entitled to retain land in terms of Section 6(1) of the West Bengal Estates Acquisition Act. Even if a Hindu co-parcenary is not a juristic person with seperate legal personality of its own, it is a corporate body or a family unit capable of acquiring, holding and disposing of property subject to limitations laid down by law. The definition of the word 'person' given in Section 3(42) of the General Clauses Act is not an exhaustive. Even if it be accepted that co-parcenary itself has no legal personality of its own there could be no bar to treating the entire body of its members as one person. In view of the very nature of their interests and possession in the undivided properties individual members of a joint Mitakshara family cannot conceivably and separately exercise their option to retain their undivided interests in terms of different clauses of subsection (1) of Section 6 of the West Bengal Estates Acquisition Act. In view of the very nature of their interests and possession in the undivided properties individual members of a joint Mitakshara family cannot conceivably and separately exercise their option to retain their undivided interests in terms of different clauses of subsection (1) of Section 6 of the West Bengal Estates Acquisition Act. The expression 'family' in Section 14K(c) of the West Bengal, Land Reforms Act is not prima facie synonimous with the concept of a Mitakshara co-parcenary." Therefore, as per the principle propounded in the aforesaid judgment there is no merit in the contention of Mr. Roy Chowdhury that as per the theory of co-parcenary the plaintiff could claim a share in the property. The 'family' definition in Section 14K(c) of West Bengal Land Reforms Act is not prima facie synonimous with the concept of Mitakshara co-parcenary. So, therefore the plaintiffs could not claim, severance of status among co-parceners, the entire body of , the co-parceners constituting the co-parcenary were to be treated as one person' and the said members of the co-parcenary as only one single unit were entitled to retain land in terms of Section 6(1) of the West Bengal Estates Acquisition Act. 20. The plaintiff though filed a suit assailing the record of right but subsequently did not press for declaration that the entry in the R. O. R. was erroneous. Therefore, it is not open to them to contend that the entry of the R. O. R. were prepared wrongly. The appellants have cited numerous decisions such as (2) AIR 1994 SC 591 ; (3) AIR 1966 SC 432 ; (4) AIR 1988 SC 881 but none of those decisions appears to be applicable in this case. 21. Therefore, from the above conspectus of the case, considering the contentions of the appellants from any angle I find that the trial Court as well as the Appellate Court had committed no wrong to dismiss the plaintiff's suit. 22. In the result, the appeal fails and the suit is dismissed but in the circumstances without cost. Heard Mr. Roy, the learned Advocate appearing for the appellant. He has submitted for granting stay of operation of the judgment for a period of four weeks. Since I agree with the concurrent finding of the learned Court by dismissing the appeal, I do not find any merit in his prayer. Accordingly the prayer for stay is rejected. Heard Mr. Roy, the learned Advocate appearing for the appellant. He has submitted for granting stay of operation of the judgment for a period of four weeks. Since I agree with the concurrent finding of the learned Court by dismissing the appeal, I do not find any merit in his prayer. Accordingly the prayer for stay is rejected. 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