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2002 DIGILAW 696 (PAT)

Raghunath Pandey v. Panmati Kuer

2002-07-02

ASHOK KUMAR VERMA

body2002
Judgment Ashok Kumar Verma, J. 1. The defendants 1st set appellants have filed this appeal against the judgment and decree passed by the Additional District Judge, III, Siwan, in Title Appeal No. 91 of 1975, whereby the learned Additional District Judge had dismissed the title appeal which had been filed against the judgment and decree passed in Title Suit No. 126 of 1969 by Additional Subordinate Judge, III, Siwan. The Additional Subordinate Judge, III, Siwan, had decreed the Title Suit No. 126 of 1969/19 of 1975, which had been filed by the plaintiffs respondents for partition of her share in the suit property. The plaintiffs had claimed 1/4th share in Schedule I property and half share Schedule II property. 2. In short, the case of the plaintiff respondent is that one Ram Bux Pandey had two sons Ram Tahal Pandey and Mahadeo Pandey and Ram Tahal Pandey had two sons Jugeshwar Pandey and Tapeshwar Pandey who were separate among themselves. Jugeshwar Pandey had three sons Misri Pandey, Sitaram Pandey and Nanhku Pandey out of whom Misri Pandey and Sitaram Pandey died issueless and wife of Nanhku Pandey is defendant no. 8 and his son is defendant no. 7. Tapeshwar Pandey had a son Chhotu Pandey and daughter of Chhotu Pandey is defendant no. 9 and his wife is defendant no. 10. Mahadeo Pandey had two sons Kauleshwar Pandey and Rajbanshi Pandey who had separated among themselves and their share had been defined but the lands were not partitioned by metes and bounds and the land was cultivated jointly. Kauleshwar Pandey had five sons Ramsakal Pandey, Rampravesh Pandey, Jyotish Pandey, Ratan Pandey and Ramjatan Pandey. Jyotish Pandey, Ratan Pandey and Ramjatan Pandey died issueless without their wives. Defendant no. 3 is son of Rampravesh Pandey and defendants 4 and 5 are nephews of defendant no. 3 Raghunath Pandey and sons of Vishwanath Pandey. 3. Rajbanshi Pandey died during survey operation after Khanapuri in the year 1916-17 and his wife Rampyari Kuer came in possession in his place. Rampyari Kuer was a pardanashin lady and she died leaving behind her daughter who is plaintiff Smt. Pan Kuer and she came in possession over the property of her father and mother. Some lands of Ram Tahal Pandey and Mahadeo Pandey were joint which is mentioned in Schedule l of the plaint and the plaintiff has four annas share in it. Some lands of Ram Tahal Pandey and Mahadeo Pandey were joint which is mentioned in Schedule l of the plaint and the plaintiff has four annas share in it. The lands which belonged to Mahadeo Pandey has been mentioned in Schedule II of the plaint in which the plaintiff has 8 annas share (half share). Rampyari Kuer was a pardanashin lady and Ramjatan Pandey was looking after her karobar and he used to take the rent from the mother of the plaintiff and to make payment and after her death defendant no. 1 Ramsakal Pandey and defendant no. 2 Rampravesh Pandey used to take the rent from the plaintiff and to make payment of it. There was joint possession of the plaintiff and defendants 1 to 6 over the Schedule II land. 4. A written statement had been filed on behalf of defendant nos. 1, 2 and 3. In short, their case is that Rampyari Kuer never came in possession over any land and the plaintiff is not daughter of Rajbanshi Pandey and Rampyari Kuer and she had never any possession over the land. The plaintiff has no share in suit land and she had no joint possession over the land in suit. Both the sons of Mahadeo Pandey were members of the joint family and Kauleshwar Pandey died in state of jointness and thereafter Rajbanshi Pandey and the sons of Kauleshwar Pandey came in joint possession of entire joint family property. Rajbanshi Pandey died soon after his marriage in state of jointness and he had died issueless and Ramsakal Pandey came in possession over the property. During the survey Rampyari Kuer was a widow and she was very young and she had no issue and therefore for her satisfaction her name was entered in respect of some lands but she had no title or possession over it. She also died soon after the survey and the entire property came in possession of defendant nos. 1 and 2 and Jyotish Pandey, Ratan Pandey and Ramjatan Pandey. Jyotish Pandey, Ratan Pandey and Ramjatan Pandey died in state of jointness with the defendants and since then the defendants are in possession over it. Further, according to these defendants, the plaintiff is phsua of defendant no. 7 Ragho Pandey and she is daughter of Jugeshwar Pandey. 5. 1 and 2 and Jyotish Pandey, Ratan Pandey and Ramjatan Pandey. Jyotish Pandey, Ratan Pandey and Ramjatan Pandey died in state of jointness with the defendants and since then the defendants are in possession over it. Further, according to these defendants, the plaintiff is phsua of defendant no. 7 Ragho Pandey and she is daughter of Jugeshwar Pandey. 5. The substantial question of law which had been formulated in this second appeal is that whether the conclusion that there was breakup in the joint family on the ground of separate residence and mess, is erroneous in law or not. 6. It was argued by the learned lawyer appearing on behalf of the appellants that the trial Court had not considered the evidence of defendants witnesses specifically and he has considered the evidence in a mechanical way. It was also submitted by him that Rajbanshi Pandey died in the year 1916-17 and the property went to the defendants by survivorship. 7. The contention of the learned lawyer for the respondents was that there is concurrent findings of facts of both the Courts below. It was also submitted by him that the learned trial Court has given its finding which has been confirmed by the lower appellate Court after proper consideration. 8. After considering the evidence adduced on behalf of both the parties the learned Additional Subordinate Judge has held that Rajbanshi Pandey was separate from Kauleshwar Pandey and he died in state of separation from the sons of Kauleshwawr Pandey. Exhibit D is certified copy of Khatiyan which shows the name of Most. Pyari wife of Rajbanshi Pandey and Ramjatan, Ratan, Jyotish, Sakal and Pravesh sons of Kauleshwar Pandey in equal shares of land of Khata no. 319. The lower appellate Court has held that the cogent and credible evidence of competent and truthful witnesses examined on behalf of the plaintiff coupled with the entry of the name of Most. Ram Pyari Kuer in the revisional survey Record of Rights go to show that Rajbanshi Pandey had died in the state of separation from his brother. 9. It appears from the record that the learned Additional Subordinate Judge has considered the evidence adduced on behalf of both the parties in his judgment passed in Title Suit no. 126 of 1969/19 of 1975. 9. It appears from the record that the learned Additional Subordinate Judge has considered the evidence adduced on behalf of both the parties in his judgment passed in Title Suit no. 126 of 1969/19 of 1975. The learned Additional Subordinate Judge has held that the plaintiff Panmati Kuer is the daughter of Rajbanshi Pandey and she has got joint possession over the suit land along with the defendants. The learned Additional District Judge has also formulated a point whether the plaintiff is daughter of Rajbanshi Pandey or she is daughter of Jugeshwar Pandey. The learned Additional District Judge has mentioned in his judgment that admittedly there is no document on this point. The learned Additional District Judge has held that Panmati Kuer is the daughter of Rajbanshi Pandey. The learned Additional District Judge has given his finding in his judgment passed in Title Appeal No. 91 of 1975 that the lands were not partitioned although Rajbanshi Pandey separated in mess and residence from his brother Kauleshwar Pandey. Ex­hibit D which is a certified copy of Khatiyan shows the name of Most. Pyari Kuer wife of Rajbanshi Pandey and sons of Kauleshwar Pandey in equal shares of land of Khata no. 319. 10. The learned Additional Subordinate Judge had decreed the suit of the plaintiff which was for partition of her share in suit property and the defendants had filed Title Appeal No. 91 of 1975 against the judgment and decree passed in Partition Suit No. 126 of 1969/19 of 1975 in the Court of District Judge which had been dismissed by the Additional District Judge, III, Siwan. It has been held by the Supreme Court in the case Kondiba Dagadu Kadam V/s. Savitribai Sopan Gujar and others, reported in (1999) 3 Supreme Court Cases 722, that concurrent findings of fact, however erroneous, cannot be disturbed under Section 100 of the C.P.C. in Second Appeal. 11. In the facts and circumstances, there is no merit in this second appeal. It is, accordingly, dismissed.