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2001 DIGILAW 718 (JHR)

Chahbar Mahto v. Kaushalya Devi

2001-10-08

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J. 1. Chatura Mahto of village Lapungdih, Tola Oradih, Dis-trict-Ranchi, died leaving behind two sons Motha Mahto and Chaitan Mahto. Motha Mahto had a son, Raghwa Malito, who had two sons, Lal Mahto and Bhola Mahto. La! Mahto had two sons, Jagarnath Mahto and Motha Mahto and a daughter. Mani Mahtain, defendant No. 8. Jagarnath Mahto died leaving behind his widow. Kunti Mahatain, defendant No. 3 and a son Chahbar Mahto, defendant No. 1 and a daughter, Sambal Mahtain, defendant No. 2. Motha Mahto left behind his widow, Bimbla Mahtain, defendant No. 5, a son, Ajambar Mahto, defendant No. 4 and two daughters, Sarla and Suloehana, defendants 6 and 7. Bhola Mahto had three sons. Lakshman Mahto, Radha Malito, defendant No. 10, Haria Mahto, defendant No. 11 and a daughter Khudani Mahtain, defendant No. 12. Lakshman "lahte died leaving behind his widow, Babai Mahtain, defendant No. 9. Chaitan Mahto died leaving behind a son Lobin Mahto, who left behind a son, Chatura Mahto, the sole plaintiff. 2. According to plaintiff, descendants of Chatura Mahto were in joint possession of the suit lands, although they were cultivating some lands separately for the sake of convenience and there had never been any partition between them by metes and bounds. Plaintiff claimed half share, whereas l/4th share belonged to defendants 1 to 8 and the remaining l/4th share belonged to defendants 9 to 12 in the suit lands, detailed in Schedule B to the plaint. 3. A joint written statement on behalf of defendant Nos. 3 to 5 and 9 to 11 was filed stating therein that there was no unity of title and possession between the parties. All of them had separated prior to cadestral survey, as was evident from Cadestral Survey Record of Rights. It was wrong to say that they were cultivating the lands separately for the sake of convenience. They denied that plaintiff has got any share in the suit lands except which were already in his possession in his exclusive right. 4. Trial Court decreed the suit holding that there was unity of title and possession between the parties with respect to the suit lands and no proper partition by metes and bounds had taken place so far between the parties. The plaintiff was. therefore, entitled to half share in Schedule B properties. 5. Parties are governed by Mitakshara School of Hindu Law. The plaintiff was. therefore, entitled to half share in Schedule B properties. 5. Parties are governed by Mitakshara School of Hindu Law. In Revisional Survey Khatian (Exts. 1 and 2), which was finally published on 21.5.1930, the suit lands stood recorded in the names of Lal Mahto and Bhola Mahto, both sons of Raghwa Mahto--one share (each half and half) & Chatura Mahto, son of Lobin Mahto--one share. In remarks column out of total 40 plots, three plots were shown in joint possession of Lal and Bhola and the rest 37 plots in exclusive possession of Lal, Bhola and Chatura, separately. In this manner out of total 25.18 acres land, 3.03 acres have been shown in possession of Lal and Bhola, jointly, 8.44 acres in possession of Lal, 6.17 acres in possession of Bhola and 7.54 acres in possession of Chatura. 6. Details of partition of the lands cultivated by parties separately, their area, plot numbers and produce have not been brought on record. Exhibit A series are Chowkidari receipts issued in the name of Chahbar Mahto. defendant No. 1 during the years 1968 to 1978, from which it can be presumed that defendants were living in a separate house. Exhibit B series are water rate receipts issued in the names of defendants 4, 10 and 11, during the years 1968--78, but plot numbers of the lands which were irrigated are not mentioned therein. Exhibits D and D/l are counter-foils of Zamindari Rent Receipts, with respect to lands of Khata No. 372 in the names of plaintiff as well as defendant No. 1, respectively for 7.25 acres and 17.39 acres and Exhibits D/4 to D/29 were issued in the names of Lal Mahto and others for 19.13 acres lands. Those rent receipts go to show that rent was being paid jointly and most of the receipts were issued in the name of defendant No. 1. Exhibit E series are signature of defendant No. 1 on the counter-foils. Those counter-foils were called for from the ex-landlord and were produced and proved by DW 8. According to him, ex-landlord Bipat Bhajan Singh had given the counter-foils to him. Exhibit J series are Cadestral and Revisional Survey Khatians. Exhibit K series are three sale-deeds, dated 15.2.1951 and 30.3.1971, whereby plaintiff had transferred some lands of Khata No. 598 of village Lan-dupdih and Khata No. 680 of village Jhapno to Ghashital Mahto. Soma Mahto. According to him, ex-landlord Bipat Bhajan Singh had given the counter-foils to him. Exhibit J series are Cadestral and Revisional Survey Khatians. Exhibit K series are three sale-deeds, dated 15.2.1951 and 30.3.1971, whereby plaintiff had transferred some lands of Khata No. 598 of village Lan-dupdih and Khata No. 680 of village Jhapno to Ghashital Mahto. Soma Mahto. Shyam Mahto and Bhim Mahto. Those lands are not the suit lands. 7. Mr. L.K. Lal, Counsel for appellants submitted that separate possession of parties shown in Revision Survey Khatian and rent receipts, water tax receipts are in their names proved that lands were completely partitioned. Mr. Lal further submitted that both branches of plaintiff and defendants were separate since leaving memory and were cultivating their lands separately in exercise of their exclusive rights it was wrong to say that they were cultivating the lands for the sake of convenience. Lal, Bhola and Robin were cultivating their lands in equal share and their descendants are also cultivating their share accordingly and now the question of partition cannot be reopened. 8. It has come in evidence of the witnesses that parties were not having equal shares in the suit lands. It is not uncommon of the joint Hindu family that while the properties remain joint, members cultivate the lands separately by way of convenience, where parties are governed Mitakshara Hindu Law, there is presumption of jointness and onus to prove partition is on the person, who asserts it. In the present case plaintiff claimed that family was Joint and there was no partition by metes and bounds, whereas according to defendants partition took place long back and so it was for them to prove that there was a partition as alleged by them. 9. It is well-settled that a disruption of Joint family status by definite and unequivocal indication to separate implies separation in interest and in right and de facto actual division of the subject-matter is not required to be followed immediately, it may at any time be claimed by virtue of the separate right and such actual division of the subject-matter can be done subsequently. 10. In the present case, it is true that parties may be enjoying separate possession of the suit properties as shown in Exhibits 1 and 2, but there was no actual division of those lands according to their share. 10. In the present case, it is true that parties may be enjoying separate possession of the suit properties as shown in Exhibits 1 and 2, but there was no actual division of those lands according to their share. Un-disputedly, plaintiff was entitled to half share and defendants Jointly were entitled to the other half, but the area shown in possession of the plaintiff and defendants was not proportionate to their shares. If there was actual division of the suit properties, then out of the total 25 acres and 18 decimals, plaintiff ought to have been shown in possession of half of it, i.e., 12 acres and odd, whereas plaintiff was shown in possession of only 7.54 acres and rest 17.39 acres was shown in possession of the defendants. 11. Defendants have not come out with a case that before the Revisional Survey there was also a partition between Lal Mahto and Bhola Mahto, but in Exhibits 1 and 2 both of them have also been shown in separate possession of particular plots. It shows that names of parties shown in possession of particular plot was not as a result of partition by metes and bounds; rather they were in cultivating possession thereof at the time of Revisional Survey for the sake of convenience only. 12. In my opinion, the trial Court rightly came to the conclusion that no proper partition by metes and bounds had taken place so far between the parties. 13. I, therefore, hold that there was unity of title and possession between the parties in respect of the suit lands described in Schedule B to the plaint and the plaintiff was entitled to half share therein. 14. In the result, the appeal fails and is dismissed. There shall be no order as to costs. Let the lower Court records be sent down immediately. 15. Appeal dismissed.