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2006 DIGILAW 122 (PAT)

Lohri Kumhar v. Ram Prasad Kumhar

2006-02-01

AFTAB ALAM, NAVIN SINHA

body2006
Judgment Aftab Alam, J. 1. This Letters Patent Appeal, by the plaintiffs-respondents is directed against the judgment and decree of reversal, arising from a suit for partition. 2. A partition suit (Partition Suit No. 132 of 1970) was filed on behalf of Lohari Kumhar and his son Bishnu Kumhar. Lohari Kumhar was described in the plaint as a lunatic under the care of his wife. Impleaded as defendants were (i) Gardhu Kumhar, father of plaintiff no. 1, (ii) Ram Prasad & (iii) Pun Kumhar, the other two sons of Gardhu Kumhar and (iv) Upendra, the son of Ram Prasad. According to the plaintiffs, the properties of which partition was sought were the ancestral properties of Gardhu Kumhar in which Lohari Kumhar and his son had their respective shares. Gardhu Kumhar had become very old and infirm; Lohari had lost sanity and in those circumstances, Ram Prasad had become the de facto karta. He was neglecting and mistreating Lohari and his son, and hence, the need for partition. The properties of which partition was prayed for were described in Schedule I to the plaint. These were same lands with the total area of 1.21 acres under five different Khatas, situate in village Sherghati, Gola Bazar, P.S.-Sherghati, thana no. 762 touzi no. 4548. The defendants resisted the claim for partition by the plaintiffs on the plea that the suit properties were not ancestral but were the self-acquired properties of Gardhu Kumhar. During his lifetime, none of his sons had any share in those properties and Gardhu had given the entire suit lands to Upendra, son of Ram Prasad, in gift. 3. The Trial Court upheld the plaintiffs claim that the suit properties were the ancestral properties of Gardhu Kumhar and accordingly, decreed the suit in their favour. In appeal (First Appeal No. 159 of 1977) a learned Single Judge of the Court found that in an earlier suit (Partition Suit No. 60 of 1960) instituted by Lohari (before he had lost sanity) with regard to the same properties and against the same set of defendants he had made an unequivocal acknowledgement that the suit properties were not ancestral but the self-acquired properties of Gardhu and on that ground had withdrawn the earlier suit. The learned Single Judge found and held that the present suit was not maintainable in view of the withdrawal of the earlier suit on the basis of the plain and clear acknowledgement made by none other than Lohari himself. He accordingly allowed the appeal filed by the defendants-appellants, set aside the decree of the Trial Court and dismissed the suti filed by the plaintiffs-appellants. 4. Mr. Sukumar Sinha, learned Counsel appearing on behalf of the appellants (respondents-plaintiffs) submitted that in a suit filed subsequently by Gardhu Kumhar (being Title Suit No. 194 of 1962/169 of 1963) the Courts had found that at least some of the suit lands were not the self-acquired property of Gardhu but were his ancestral property and that finding in Title Suit No. 194 of 1962/169 of 1963 was maintained right upto this court and finally upto the Supreme Court. Mr. Sinha contended that the finding in Title suit No. 194 of 1962/169 of 1963 clearly operated as res judicata against the defendants and barred them from raising the plea that the suit lands were self-acquired properties of Gardhu. 5. From this brief summary, it can be gathered that the issue has been unduly obfuscated due to repeated litigations between the parties with regard to the same properties. It would be, therefore, simpler and useful to begin at the beginning. 6. First Lohari instituted Partition Suit No. 60 of 1960, demanding partition of the same lands as described in Schedule I to the plaint of the present suit. In the plaint of that suit (Exhibit C), he impleaded his father Gardhu Kumhar and his two brothers, Ram Prasad & Pun Kumhar as defendants. In that suit also, he also pleaded that the suit lands were the ancestral properties of Gardhu Kumhar and hence, amenable to partition at his behest. He later filed a petition dated 3.5.1969 (Exhibit E) for withdrawal of Partition Suit No. 60 of 1960. In that petition, it was stated that after filing the suit, he came to learn that the suit lands were not ancestral; the land of plot no. 32 of khata no. 1040, area 57 decimals was the self-acquired property of his mother (defendant no. 4 in the suit) and the rest of the suit lands were the self-acquired properties of his father Gardhu Kumhar (defendant no. 1 in the suit). 32 of khata no. 1040, area 57 decimals was the self-acquired property of his mother (defendant no. 4 in the suit) and the rest of the suit lands were the self-acquired properties of his father Gardhu Kumhar (defendant no. 1 in the suit). He further stated that during the lifetime of his two parents, he had no right or interest in the suit lands. The first partition suit instituted by Lohari was thus withdrawn on the aforesaid statements made by him. 7. It appears that during the pendency of Partition Suit No. 60 of 1960, Lohari Kumhar executed certain sale deeds with regard to 8 decimals of Survey Plot Nos. 1236 and 1237 (total area of the two plots being 12 decimals) of khata no. 1138 in favour of certain strangers to the family. Though, he later also executed a deed of cancellation in respect of those sale deeds, it is apparent that the cancellation was futile and inoperative in view of the fact that the sale deeds earlier executed by him were duly registered. In order to avoid the transfers made by Lohari, his father Gardhu filed Title Suit No. 194 of 1962/169 of 1963. In that suit, Gardhu Kumhar and his two sons Ram Prasad & Pun Kumhar and a minor son of Lohari Kumhar were the plaintiffs. The transferees from Lohari were impleaded as defendants 1 to 5 and Lohari himself was impleaded as proforma defendant no. 7. In that suit, it was stated on behalf of the plaintiffs (Gardhu Kumhar and his sons) that the 8 decimals of land (part of plot nos. 1236 and 1237) alongwith certain other lands were the self-acquired properties of Gardhu Kumhar. They were not the ancestral properties and the sons of Gardhu Kumhar, including Lohari had no right or interest in those lands. It was further stated that under some misapprehension, Lohari Kumhar had erroneously filed partition Suit No. 60 of 1960. During its pendency, influenced by the instigation of others, he had executed the sale deeds with respect to an area of 8 decimals from the two plots as aforesaid in order to make his case appear stronger. The sale deeds were executed without payment of any consideration and they were inoperative. Later, realising his folly, he admitted and acknowledged the correct position with regard to the suit properties and withdrew the partition suit instituted by him. The sale deeds were executed without payment of any consideration and they were inoperative. Later, realising his folly, he admitted and acknowledged the correct position with regard to the suit properties and withdrew the partition suit instituted by him. But, taking advantage of the sale deeds executed by Lohari, the transferees, defendants 1 to 5 were raising claims with regard to the transferred lands. The dispute between the two sides had led to proceedings under Section 144 of the Code of Criminal Procedure and other similar proceedings. The suit was, therefore, necessitated to declare the sale deeds as null and void and inoperative, to declare the title of the plaintiffs and to confirm their possession over the suit lands. The defendants (transferees from Lohari) contested the suit claiming that the suit lands were ancestral and not self-acquired properties of Gardhu. They further contended that there was a previous family arrangement under which Lohari had separated from the rest of the co-sharers and had got in his share the lands transferred by him, apart from some other properties. He was, therefore, fully competent to execute the sale deeds in respect of the transferred lands. The sale deeds were executed on payment of full and valuable consideration and those were executed by Lohari in his capacity as Karta of the joint family comprising himself and his son. The sales were made for lawful requirements of the sub-joint family of Lohari. 8. On the basis of the pleadings of the parties in Title Suit No. 194 of 1962/ 169 of 1963, the Trial Court framed the issues. The issues that are relevant for the present were at serials 3, 4 and 5 which are reproduced below: 3. Whether the lands recorded in the record of rights in the name of plaintiff no. 1 and his brother Tunni were their self acquired or joint family property? 4. Whether Lohari Kumhar defendant no. 7 is separated from plaintiffs or is joint with them as member of the joint Hindu family? 5. Whether defendant no. 7 had any right to sell the suit lands and whether the sale deeds executed by him were valid, legal and for consideration? 4. Whether Lohari Kumhar defendant no. 7 is separated from plaintiffs or is joint with them as member of the joint Hindu family? 5. Whether defendant no. 7 had any right to sell the suit lands and whether the sale deeds executed by him were valid, legal and for consideration? On Issue No. 3, the Trial Court recorded the finding (at the end of paragraph 19 at page 16 of the judgment) as follows: "So from all these, I have no manner of hesitation to come to this conclusion that the property was not self acquired property of Gardhu Kumhar and Tunni Kumhar but it was their ancestral property." Further, at the end of paragraph 24 at page 21 of the judgment, it was found and held as follows: "Thus taking all these facts into consideration, I am clearly of the opinion that the lands recorded in the record of rights in the name of plaintiff no. 1 and his brother Tunni were not their self- acquired property but it was their ancestral and joint family property and was acquired by joint family fund." The Trial Court then took up issues no. 4, 5 and 6 together and on issue no. 4 recorded the following finding at the end of paragraph 37 at page 40 of the judgment: "Thus taking all these into consideration I am clearly of this opinion that there was a severance of joint status and Lohari Kumhar, proforma defendant no. 7 had already separated from his father and in that he was allotted 4 kathas of land and one house." This finding is repeated at paragraph 39 at page 42 of the judgment where it was observed as follows: "It has already been found that there was a severance of joint status and by family arrangement Lohari was given 4 kathas of land and one house and that took place sometimes in the year 1957-58 and since then Lohari Kumhar, proforma defendant no. 7 was living separately with his family and dealing in with properties separately. Having thus found it is obviously clear that Lohari had right to sell the suit land." 9. The Trial Court went on to hold that the sale deeds executed by Lohari were for valuable consideration and the sales were made for the lawful requirements of the joint family comprising himself and his minor son. Having thus found it is obviously clear that Lohari had right to sell the suit land." 9. The Trial Court went on to hold that the sale deeds executed by Lohari were for valuable consideration and the sales were made for the lawful requirements of the joint family comprising himself and his minor son. The Trial Court, accordingly, held and found that the title to the suit lands had passed on to the transferees- defendants 1 to 5. It, accordingly, dismissed the suit filed by Gardhu and his two sons. 10. It will be seen in the following lines that this finding with regard to the earlier separation of Lohari from the joint family remained completely undisturbed, right till the end and this alone is sufficient to demolish the present suit instituted by the plaintiffs. 11. The plaintiffs in Title Suit No. 194 of 1962/169 of 1963 (Gardhu and his two sons and the minor son of Lohari) preferred appeal against the judgment and decree passed by the Trial Court. The first appellate Court did not disturb the findings with regard to the suit lands being the ancestral property as well as with regard to the earlier separation of Lohari from the joint family. The first Appellate Court, however, found and held that Lohari was a drunkard and waster and he made the sales without any lawful requirement for the joint family, comprising himself and his minor son and on that score alone, set aside the sales and decreed the suit. The defendants then brought the matter before this Court in second appeal (being S.A. No. 322 of 1977). In that second appeal, the earlier two findings recorded by the Trial Court and left undisturbed by the First Appellate Court were never in issue and what alone was the question for consideration whether or not the sales made by Lohari were for any lawful requirement of the joint family comprising himself and his minor son. The second appeal was heard by a Division Bench and was finally allowed by judgment and order, dated 11.4.1985. The plaintiff Gardhu and his two sons took the matter before the Supreme Court but the Special Leave Petition being S.L.R (Civil) No. 14061 of 1986 was dismissed in limine. 12. It was on the basis of the decree in Title Suit No. 194 of 1962/169 of 1963 that Mr. The plaintiff Gardhu and his two sons took the matter before the Supreme Court but the Special Leave Petition being S.L.R (Civil) No. 14061 of 1986 was dismissed in limine. 12. It was on the basis of the decree in Title Suit No. 194 of 1962/169 of 1963 that Mr. Sinha contended before us that the finding that the lands transferred by Lohari (8 decimals out of plot nos. 1236 and 1237), which were part of the suit properties in the present suit, were not the self-acquired property of Gardhu but were his ancestral property, was confirmed right up to the Supreme Court and in view of the finding, the present suit instituted by the plaintiffs could not be dismissed on the ground that the suit properties were the self-acquired properties of Gardhu Kumhar. Mr. Sinha clearly overlooks the second finding in Title Suit No. 194 of 1962/169 of 1963 that remained equally undisturbed right up to the Supreme Court. The matter did not end with the finding that the suit properties were the ancestral properties of Gardhu Kumhar but went further and the Courts came to find and hold that the status of jointness was severed in 1957-58 itself and under a family arrangement Lohari separated from the joint family comprising his father and brothers and got 4 kathas of land and a house in his share. There having been an earlier partition between Lohari and his father and brothers, there is no question of a further partition of the same lands and the suit was plainly misconceived and not maintainable on that score alone. 13. Confronted with this obstacle, Mr. Sinha submitted that the finding was that under the family arrangement, Lohari had got 4 kathas of land besides a house. Learned Counsel submitted that 4 kathas would be roughly equal to 12 decimals and that was actually the total area of plot nos. 1236 and 1237. He further submitted that Lohari had sold only 8 decimals out of the 12 decimals being the total area of the two plots, and hence, he could at least maintain the suit with regard to the remaining 4 decimals in those two plots and the house. We are completely unable to accept the submission. 1236 and 1237. He further submitted that Lohari had sold only 8 decimals out of the 12 decimals being the total area of the two plots, and hence, he could at least maintain the suit with regard to the remaining 4 decimals in those two plots and the house. We are completely unable to accept the submission. The family arrangement took place in the year 1957-58 and from the judgment in Title Suit No. 194 of 1962/169 of 1963, it is apparent that the family arrangement was also acted upon the Lohari came in possession of his share in the joint family property. What he did of his properties after that is not known, apart from the fact that he sold 8 decimals to defendants 1 to 5 of Title Suit No. 194 of 1962/169 of 1963. He might have alienated the rest of the property too or he might have lost it to someone else, who may be in unauthorised occupation of those properties. In that case, the remedy was to file a suit for recovery of possession and not for partition of the same properties that had earlier been partitioned and from which he had already got his due share. 14. Thus, viewed from any angle, the present suit being Title (Partition) Suit No. 132 of 1970 was not maintainable and was liable to be dismissed. 15. We are, therefore, in agreement that the appellants suit was liable to be dismissed for more reasons than one as described hereinabove. 16. We find no merit in this appeal. It is accordingly dismissed.