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2002 DIGILAW 650 (GUJ)

AHER BHIMA v. AHER LAKHA RAM

2002-08-28

RAVI R.TRIPATHI

body2002
RAVI R. TRIPATHI, J. ( 1 ) ). THE present First Appeal is filed being aggrieved of the judgement and decree dated 2 9/02/1980 passed by the learned Joint Civil Judge (S. D.), Junagadh, in Special Civil Suit No. 110 of 1973. ( 2 ) ). THE facts of the present case are that the plaintiff had filed Special Civil Suit No. 110 of 1973 for partition of joint family properties and award of possession of the defined share and the mesne profits. The case of the plaintiff, Bhima @ Bhimshi Tida, is that he belongs to the branch of Tida Kana and defendant no. 1, Ladha @ Lakha is the son of Ram Kana, and defendant no. 2, Shambhu Naran, is the grand son of Ram Kana. The deceased Kana Vira had three sons viz. Ram, Tida and Giga. On expiry of Kana Vira, the properties were to be distributed among these three brothers, which are referred to as the branch of Ram Kana, Tida Kana and Giga Kana. The pedigree of the family is set out in paragraph 2 of the judgement. It is averred by the plaintiff in the plaint that as Ram Kana was eldest son, the suit properties stood in his name as well as the relevant `lekhs were also in his name. The suit land bearing Survey Nos. 86 and 23 situated at Village : Mandorana (Gir) of Junagadh District was partitioned on the death of Ram Kana. The said partition was only notional, by which the shares of the three branches were defined. According to that partition, As. 10-8 Gs. of Survey No. 86 and As. 11-18 Gs. of Survey No. 23 had gone to the share of the branch of Ram Kana, while As. 5-4 Gs. of Survey No. 86 and As. 5-29 Gs. of Survey No. 23 had gone to the branch of Tida Kana (plaintiffs branch), and As. 5-5 Gs. of Survey No. 86 and As. 5-25 Gs. of Survey No. 23 had gone to the branch of Giga Kana. It is further averred in the plaint as the partition was notional, the suit land remained joint and were cultivated jointly. An entry was mutated on 24/3/1954 in Village Form No. 6, a copy of which is produced at Exh. 70. The said entry was verified on 23/03/1985. of Survey No. 23 had gone to the branch of Giga Kana. It is further averred in the plaint as the partition was notional, the suit land remained joint and were cultivated jointly. An entry was mutated on 24/3/1954 in Village Form No. 6, a copy of which is produced at Exh. 70. The said entry was verified on 23/03/1985. It is further averred that with the consent of the plaintiff, the suit land was cultivated by the defendants and yield was given to the plaintiff proportionately. However, as sometime before the filing of the suit, the defendants stopped giving the yield and as the plaintiff felt that the defendants are attempting to dispose of the suit property, the plaintiff served a notice on the defendants dated 29/04/1973, a copy of which is produced at Exh. 53. In reply whereof, the defendants denied the claim of the plaintiff. The plaintiff, therefore, filed the suit. The defendants, by filing written statement at Exh. 18, contested the suit, contending that the suit is false; that during the age of old Junagadh State, before about 30 to 40 years, there was partition and each branch had become separate; and, that each had its own exclusive property. The defendants denied that there was any partition, as alleged by the plaintiff; and that there is no question of any mutation entry-Exh. 70, as alleged by the plaintiff. It was also contended by the defendants that if there was any entry, as contended by the plaintiff, the same was without notice to the defendants, and therefore, it is not binding to them. The defendants relied upon the sale deed, Exh. 46, dated 10th March, 1958, by which the branch of Ram Kana sold land admeasuring As. 13-8 Gs. of Survey No. 23 and As. 10-8. 5 Gs. of Survey No. 86 for a consideration of Rs. 2000=00 to the plaintiff. It was contended by the defendants that if the land of Survey Nos. 23 and 86 were joint of all three branches, there was no reason for him to purchase a part of Survey No. 23 and 86 from the branch of Ram Kana. ( 3 ) ). 2000=00 to the plaintiff. It was contended by the defendants that if the land of Survey Nos. 23 and 86 were joint of all three branches, there was no reason for him to purchase a part of Survey No. 23 and 86 from the branch of Ram Kana. ( 3 ) ). THE learned Judge, having recorded the case of the plaintiff and the defendants, framed as many as eleven issues and recorded his finding after appreciating the rival contentions in light of the evidence placed on record of the case. ( 4 ) ). THE learned Judge has recorded in the judgement that the plaintiff has not produced any other evidence except the certified copy of Village Form No. 6 at Exh. 70, in support of his theory of notional partition. He has also recorded that the plaintiff has not produced any material to show that the defendants were giving him share in the yield from Survey Nos. 23 and 86. As against that, on appreciating the documentary evidence viz. sale deed at Exh. 46, the learned Judge, believed the case of the defendants and finally came to the conclusion that the plaintiffs suit is required to be dismissed and dismissed the suit with costs. ( 5 ) ). THE learned Advocate appearing for the appellant strenuously contended that the learned trial Judge committed an error by not believing the case of the plaintiff. The learned Advocate submitted that the learned Judge ought to have appreciated the Village Form No. 6 at Exh. 70, and should have held that there was notional partition between the parties. The learned Advocate contended that the learned Judge ought to have believed the case of the plaintiff, when the plaintiff deposed to the effect that share from the agricultural yield was given in presence of his father and forefathers, but then the learned Judge has rightly observed that the plaintiff has cited a dead person as an eye witness and has not cited any alive person as witness, who could have been examined. The learned Judge has rightly not believed the case of the plaintiff because the case of the plaintiff is that the plaintiff and the defendants used to take the share inter se mutually and that at that time, nobody used to remain present. The learned Judge has rightly not believed the case of the plaintiff because the case of the plaintiff is that the plaintiff and the defendants used to take the share inter se mutually and that at that time, nobody used to remain present. The learned Judge has also correctly appreciated the important aspect of the case of the plaintiff, namely, the plaintiff is not able to explain as to why the division of agricultural lands of Survey Nos. 23 and 86 are not in equal proportion. If the case of the plaintiff is believed that Kana Vira had three sons viz. Ram, Tida and Giga, then, on the death of the said Kana Vira, the properties ought to have been divided in 1/3rd equal share to all the three branches. But, even as per the case of the plaintiff, the suit agricultural land was not divided in 1/3 equal share. As per Village Form No. 6-Exh. 70, it is clear that from Survey No. 23, which admeasures As. 22 - 36 Gs. , all three branches did not get equal share, as set out herein above and not a word is deposed by the plaintiff in his deposition at Exh. 69 as to why this unequal share was made under the so-called notional partition. So far as sale deed, Exh. 46, is concerned, even on close scrutiny of the record, nowhere it is found, either in the deposition of the plaintiff or in any document as to why the plaintiff purchased the land from Survey Nos. 23 and 86 from the branch of Ram Kana. ( 6 ) ). DESPITE all vehemence and strenuous efforts of the learned Advocate for the appellant, the learned Advocate could not assail the judgement of the learned trial Judge successfully. In the result, the First Appeal fails and the same is dismissed. No order as to costs. .