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1998 DIGILAW 331 (PAT)

Lala Gir v. Lachhminia Devi

1998-04-23

RADHA MOHAN PRASAD

body1998
JUDGMENT Radha Mohan Prasad, J. This appeal arises out of the judgment and decree dated 25th May, 1976 passed in Partition Suit No. 108 of 1974 by the Subordinate Judge, Hajipur decreeing the suit in the part. 2. A cross-objection was also filed on behalf of the defendants, respondents which stood dismissed in default on account of noncompliance of the peremptory order No. 30 dated 27.11.1981. 3. The plaintiffs, who are the appellants, were initially aggrieved by the said judgment and decree to the extent whereby C.S. Plots No. 145, 149, 155, 166 and 182 under C.S. Khata No. 659 and C.S. Plots No. 302, 308, 309 and 551 have been held by the Trial Court to be not liable for partition. However, Mr. Sheo Dayal Singh, learned Counsel appearing for the appellants on examining the plaint and finding that the lands appertaining to C.S. Plots No. 302, 308, 309 and 551 covered by sale deed (Ext. 1/2) were not included in the Schedule of the plaint, has rightly not pressed this appeal with respect to the same. As regards the rest of the aforementioned lands, he contended that the learned Trial Court has committed grave error on putting onus on the plaintiffs-appellants to prove that the said lands were purchased from the saving of the income from the nucleus which the family of the party possessed at that time. According to him, in fact the onus goes on respondent No.1 who was the Karta of the Joint family. In this regard he referred to a decision of the Supreme Court in the case of Mallesappa v. Mallappa ( AIR 1961 SC 1268 -Para 15). 4. On the other hand, Mr. Kundan Bahadur Singh, learned Counsel appearing for the respondents contended that in the facts and circumstances of the case, the trail Court has rightly put the onus on the plaintiffs-appellants inasmuch as there was no case of the plaintiffs that the settlement was taken by the joint family from the Joint family fund or joint-family income in the name of Basudeo Gir (respondent No.1). It was contended that in paragraph 8 of the plaint the only pleading that the entire land mentioned at the foot of the plaint are the ancestral land of the plaintiffs and defendants which were entered in the name of Kodoli Gir and his brothers, the ancestor of the plaintiffs and defendants and the plaintiffs and defendants came in joint possession over the same and that there has been no partition of these lands between them. In paragraph 5 of the plaint the plaintiffs claimed that Basudeo Gir has been the Karta of the joint family, but the above facts have been denied in paragraph 10 of the written statement. However, no issue was suggested by the plaintiffs on the question as to whether respondent No. 1 was the Karta of the family or not nor any such issue was framed by the Court. It was also submitted that there is no finding recorded by the Court that Basudeo Gir was the Karta of the family and, as such the onus was no the plaintiffs to prove that the aforementioned lands in question were purchased from the joint nucleus fund. 5. I find substance in the submissions of the learned Counsel for the respondents. It is true that the Trial Court has held that there has been no partition of the suit properties by metes and bounds, but while dealing with the question as to whether the plaintiffs are entitled to get a decree for partition of the suit properties and if so to what extent and to which of the properties the Trial Court on consideration of all the facts and evidences came to the conclusion that the plaintiffs are entitled to get a decree for partition of the suit lands mentioned at the foot of the plaint except of the aforementioned lands in question. 6. It appears that during C. S. operation the lands in question were recorded ill the name of Kodai Gir and his brothers but later it was auction sold on 11-2-1937 in execution of a lent decree. The decree bolder was the auction purchaser who thereafter issued Patta (Ext. N) in favour of Basudeo Gir. The Trial Court has noticed that it is clear from the recital of the registered Patta (Ext. N) that the delivery of possession was taken on 7-4-1937. This is not being questioned by the learned Counsel for the appellants. The decree bolder was the auction purchaser who thereafter issued Patta (Ext. N) in favour of Basudeo Gir. The Trial Court has noticed that it is clear from the recital of the registered Patta (Ext. N) that the delivery of possession was taken on 7-4-1937. This is not being questioned by the learned Counsel for the appellants. He, however, submitted that the delivery of possession was not proved and as such Patta to which the appellants were not party cannot be used against them. 7. I am unable to accept the said submission of the learned Counsel for the appellants. The Trial Court in paragraphs 31 and 32 of the its judgment has fully dealt with the said aspect. It is true that the copy of the delivery of possession was not filed but the defendants-respondents put in evidence that the record of execution case has been destroyed and in support thereof bas brought destruction report (Ext. L) on the record to show that the record of Exclusion Case No. 2242 of 1936 had been destroyed. They also filed Chirkut (Ext. K) which shows that the copy has been asked for the delivery of possession of Execution Case No. 2242 of 1936. The Trial Court has also noticed that from the Patta (Ext. N) it appears that Basudeo Gir took settlement in his own name after paying a najrana of Rs. 100/- Thus it has rightly been held by the Trial Court that in the absence of pleading on behalf of the plaintiffs that the said settlement was taken by the joint-family from the joint family fund or joint family income in the name of Basudeo Gir, the land in question cannot be held to be a joint family property and liable for partition. 8. Thus. I do not find any merit in this appeal and the same is dismissed but without costs. Appeal Dismissed.