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2001 DIGILAW 808 (JHR)

Simoti Devi v. Durjodhan Matho

2001-12-12

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J.-one Khedu Mahto had three sons, Ramsay Mahto, Fagu Mahto and Meghnath Mahto. Plaintiffs are descendants of Gagu Mahto, whereas defendants 1 and 2 are descendants of Ramsay Mahto and defendants 3 to 6 are descendants of Meghnath Mahto. 2. Admittedly, by registered sale deed dated 12.9.1941, Digam Mahto, son of Meghnath Mahto, Gobra Mahto and Guhi Mahto, sons of Fagu and Durjodhan Mahto son of Arjun Mahto (grandson of Ramsay Mahto) jointly purchased 9.83 acres land of Khata Nos. 18 and 31 in village Murhu, district Ranchi, from Mosstt. Ghasmi, wife of Late Ghamru Mahto, for total consideration of Rs. 500/-. 3. Plaintiffs filed Partition Suit No. 116 of 1980 against defendants for partition of their 1/3rd share in Schedule 'B' and 1/2 share in Schedule 'C' properties. Schedule 'B' properties were the lands of joint family, except those lands, which were purchased by the aforesaid four persons in 1941. 4. In paragraph 8 of the plaint, it was claimed that in 1941, four brothers of the family, namely, Durjodhan Mahto, defendant no.1 Guhi Ram Mahto, plaintiff no.1 Gobra Mahto, father of plaintiffs 2 to 5 and husband of plaintiff no.6, and Digam Mahto, father of defendants 3 and 4 jointly acquired Schedule 'C' lands and each of them was entitled to 1/4th share therein. They were in joint possession thereof and there had been no partition by metes and bounds. 5. Defendants 1, 3, 4, 6 and 7 contested the suit in respect of Schedule 'C' lands. Their case was that Digam Mahto representing the branch of Fagu Mahto and defendant no.1 representing the branch of Ramsay Mahto and his son Arjun Mahto acquired the same and accordingly plaintiffs' share therein was to the extent of 1/3rd only. 6. Trial court decreed the suit in part holding that plaintiffs were entitled to 1/3rd share in the property mentioned in Schedule 'B' to the plaint except land of R.S.Khata No.2, having an area of 90 decimals and 1/2 share in the property mentioned in Schedule 'C'. 7. Contesting defendants preferred an appeal, which was allowed in part and in respect of Schedule 'C' property, trial court's preliminary decree was set aside and it was held that plaintiffs-respondents were entitled to only 1/3rd share therein. 8. 7. Contesting defendants preferred an appeal, which was allowed in part and in respect of Schedule 'C' property, trial court's preliminary decree was set aside and it was held that plaintiffs-respondents were entitled to only 1/3rd share therein. 8. The court of appeal below disbelieved the testimony of the plaintiffs witnesses with regard to mode of payment of consideration for the sale deed (Exhibit 1). According to the plaintiffs, the four purchasers have contributed to the extent of 1/ 4th each towards the total amount of consideration and for that examined P.W.4, whose sister was daughter-in-law of Ghasmi, executant of Exhibit 1, who deposed that during the negotiation for sale, it was agreed that payment of consideration shall be made in four equal shares of Rs. 125/- each. The said witness was not attesting witness of Exhibit 1 and, therefore, the court 9f appeal below did not place any reliance on his statement. 9. The court of appeal below further observed that there was nothing in the recital of Exhibit 1 to show that all the four vendees paid their share of the consideration amount separately and the following recitals have been made: "WAJE RAHE KI MOKIR ALAH KE NAM SE KHANA KAIFIAT ME DARJ HAI WO UN LOGO KA WARIS BHI HAMARE MARNE PAR HOGA". It was further observed by the court of appeal below that Schedule 'C' property was acquired in the names of three branches, Durjodhan Mahto, representing the branch of Ramsay Mahto, Digarn Mahto representing the branch of Meghnath Mahto, Gobra and Guhi Mahto representing the branch of Fagu Mahto and so each branch was entitled to 1/3rd share in this property. 10. On reading Exhibit 1, it appears that the court of appeal below missed tile following words to complete the sentence beginning from the words : 'Wage rahe ki mokir"......khud soch samajh kar bikri likh dia". Now after reading the whole sentence, it is clear that those recitals have no connection with the subject matter in issue in appeal in respect of the share of each of the four purchasers vide Exhibit 1. 11. Admitted position was that shares of four purchasers were not specified in Exhibit 1 and as such applying the provisions of section 45 of Transfer of Property Act, such persons, namely, the four purchasers shall be presumed to be equally interested in the property. 12. 11. Admitted position was that shares of four purchasers were not specified in Exhibit 1 and as such applying the provisions of section 45 of Transfer of Property Act, such persons, namely, the four purchasers shall be presumed to be equally interested in the property. 12. In my opinion, even if the court of appeal below discarded the evidence of P.WA regarding mode of payment of consideration amount, there was no case made out by the contesting defendants that either the entire consideration amount was paid from the joint fund of the three branches or as pleaded in paragraph 11, Digam Mahto representing the branch of Meghnath Mahto, Gobra and Guhi Mahto, representing the branch of Fagu Mahto and defendant no.1 representing the branch of Ramsay Mahto had made payment separately to the extent of 1/3rd each. 13. In the aforesaid circumstances, I set aside the impugned judgment and decree passed by the court of appeal below and confirm the decree passed by the trial court. 14. I n the result, this appeal is allowed, but without costs. Let the lower court records be sent down.