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2007 DIGILAW 1749 (PAT)

Madho Singh v. Raghu Nandan Prasad

2007-11-07

S.N.HUSSAIN

body2007
Judgment 1. I.A. No. 5775 of 2007 has been filed on behalf of the appellants on 9.10.2007 for substituting the heirs of appellant no. 1. I.A. No. 5776 of 2007 has been filed by the appellants for condoning the delay in the filing of the said application for substitution, whereas I.A. No. 6085 of 2007 has been filed on behalf of the appellants for setting aside abatement. It is stated that appellant no. 1 Madho Singh died on 10.7.2007 leaving behind two sons, namely Shiv Pujan Singh and Satendra Singh, residents of the same village, as his heirs and legal representatives. From the averments made by the learned counsel for the appellants and from the statements made in the interlocutory applications, it appears that genuine reasons have been shown due to which the appellants could not file the aforesaid applications earlier. In the said circumstances, all the three interlocutory applications are allowed, delay in the filing of the application for substitution is condoned and abatement is set aside. Let the heirs of appellant no. 1 mentioned above be substituted in his place. 2. Heard learned counsel for the appellants and learned counsel for the respondents. 3. This second appeal has been filed by defendant 3rd Set against the judgment of reversal. Title Suit No. 29 of 1982 was filed by the plaintiffs-respondents no. 1 to 4 for partition of the suit land claiming that the parties to the suit, namely the plaintiffs and defendant 1st Set belonged to the same family having common ancestor and properties were joint. Defendant 2nd Set were purchasers from defendant 1st Set, whereas the instant appellants were also purchasers from one Sheo Nandan Prasad (one of defendants 1st Set) by registered deed dated 22.6.1989 and they were also impleaded as defendant 3rd set in the title suit. However in the said suit, although notices were served on the defendants, some of them appeared and filed their written statement, but thereafter they did not contest the suit and the case was posted for ex parte hearing. Thereafter, learned IVth Subordinate Judge, Chapra, dismissed the suit by judgment dated 29.6.1962. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal No. 81 of 1992 and finally the said title appeal was allowed by the learned Addl. Thereafter, learned IVth Subordinate Judge, Chapra, dismissed the suit by judgment dated 29.6.1962. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal No. 81 of 1992 and finally the said title appeal was allowed by the learned Addl. District Judge, 1st, Saran by judgment and decree dated 16.8.2002 and the claim of the plaintiffs in the title suit was decreed. Against the said judgment and decree of the lower appellate court only defendant 3rd Set mentioned above who were the purchasers from one of the defendant 1st Set during the pendency of the title suit filed the instant second appeal, whereas the other defendants did not challenge the said judgment and decree. 4. Learned counsel for the appellants has raised two questions claiming them to be the substantial questions of law, out of which, the first was that in the title suit and in the title appeal filed by the plaintiffs no notice was given to the appellants in the second appeal, who were defendants and respondents in the learned court, below, due to which the judgment and decree of the appellate court is vitiated in law. The second question is that plaintiffs had failed to show that the joint family nucleus had sufficient fund for purchase of the suit properties and hence onus was wrongly placed upon the defendants to prove that the suit properties were joint family properties. 5. So far the first question is concerned, to confirm the position, this court vide order dated 28.8.2007 called for the records of the suit and appeal from the learned courts below and from the verification of the said records, it appears that the suit was dismissed and the judgment and decree of the trial court was not against the defendants and hence absence of any notice to the appellants of this second appeal in the title suit does not cut much ice. However, so far the title appeal is concerned, it is quite apparent that notices were served upon the defendants who were respondents in the court of appeal below and out of them, the appellants, who were the respondents 3rd Set in the title appeal, appeared and filed their vakalatnama, but thereafter they did not contest the title appeal. In the said circumstances, the plea of absence of notice raised by the appellants as the first substantial question of law fails. 6. In the said circumstances, the plea of absence of notice raised by the appellants as the first substantial question of law fails. 6. So far the second question is concerned it is not in dispute that the plaintiffs and defendants 1st Set belonged to the same family and hence legally there would be a presumption that the properties of the family were joint family properties. Furthermore, the onus of proving that specific property was not purchased from the nucleus of the joint family or were the exclusive purchased properties of one of the members of the family was squarely upon the defendants. The defendants having miserably failed to discharge their onus and also to prove the same, the learned court of appeal below had no option, but to pass a decree of partition. Accordingly, the second question also fails. 7. In the aforesaid facts and circumstances, I do not find any illegality in the impugned judgment of the learned court of appeal below, nor do I find any substantial questions of law involved in the instant second appeal, which is accordingly dismissed.