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2007 DIGILAW 289 (JHR)

Puran Mahto v. Budhani Devi

2007-04-10

N.N.TIWARI

body2007
JUDGMENT Narendra Nath Tiwari, J. 1. This is the plaintiffs appeal against the judgment: and decree dated 28.8.93 (decree signed on 7.9.93) whereby the plaintiffs suit for partition has been dismissed in partition Suit, No. 9/90. The plaintiffs in the said suit had prayed for partition of their13/18 th share in the Schedule A & B properties described in the plaint. The plaintiffs case in brief is that Bahadur Mahto the common ancestor of the oarties had acquired the lands of Khata No. 41 of village-Paplo, P.S-Nawadih, District-Giridih (now Bokaro) which was recorded in his name in cadastral survey records of rights. The land of Khata No. 41 is fully described in Schedule A of the plaint. Bahadur Mahto had acquired another item of property i.e. the land of Khata No. 46 along with Bhikchuk Mahto and sons of Madari Mahato. The said land is described in Schedule B of the plaint. The land of Khata No. 46 was jointly recorded in the names of the said persons in cadastral survey records of rights each with 1/3 rd equal share. Bahadur Mahto died leaving behind three sons, Bodhi Mahco, Harkhu Mahto and Puran Mahto who jointly inherited the land of their father and came in joint possession thereof. In or about the year 1960 the three sons of Bahadur Mahto were separated in mess and cultivation for the sake of convenience, but without any partition by nieces and bounds. All the said sons while in occupation of separate land had sold some of the lands under their occupation. Bodihi Mahto sold some lands to Birbal Mahto, Ramdas Mahto and Rewa Mahto. Bodhi Mahto died in December 1970 leaving behind his widow Patwa Devi and three daughters Bhagia Devi, Sugina Devi and Budhani Devi who are also the defendants of the suit. After the death of Bodhi Mahto his widow and three daughters came in possession jointly with other co-sharers. Most. Patwa Devi also sold land to her daughter by sale deeds dated 18.10.78 and 10.1.81. It has been stated that the said sale deeds were kept in secret and the same never saw the light of the day. Budhani Devi (defendant No. 1) also executed several sale deeds in favour of several persons and those purchasers were also made defendants in this case. Budhani Devi sold the land of her share and that of her mother on 30.1.89. Budhani Devi (defendant No. 1) also executed several sale deeds in favour of several persons and those purchasers were also made defendants in this case. Budhani Devi sold the land of her share and that of her mother on 30.1.89. The sale deeds executed after 3.1.89 by the defendant No. 1 are void ab initio and the purchasers had not come in possession. Those sale deeds are described in Schedule C of the plaint. The plaintiffs have got 13/18 th share and the defendant Nos. 39 & 40 were entitled for 1/9 th share in the suit property. But the defendant Nos. 2-34 were trying to take forcible exclusive possession over the suit property and on 5.6.90 the defendants forcibly took possession over the suit land which were protested by the plaintiffs and as such it was inconvenient to remain joint and hence the suit was instituted. 2. The defendants contested the suit and in their written statement stated, inter alia, that the suit is barred under the several provisions of law and the suit is barred for nonjoinder of patty and the suit has been filed without any cause of action and that there was previous partition end there was no unity of title and possession among the parties. However, it was admitted that the land of Khata No. 4l was acquirea by Bahadur Mahto and he was the common ancestor. In the land of Khata No. 46 Bahadur Mahto hud 1/3 rd share. Bahadur Mahto died leaving behind his sons, Bodhi Mahto, Harkhu Mahto and Puran Mahto who inherited and possessed the lands. But the specific case of the defendants is that the joint family was separated and was in exclusive possession of the lands allotted to their respective shares since 1960 except the land of Plot No. 1334 under Khata No. 41 which was also partitioned in the year 1972. The defendants have admitted the transactions by the plaintiffs and Bodhi Mahto and after the death of Bodhi Mahto, his share was inherited by his widow and daughters. It was further stated that Patwa Devi sold the entire share of Bodhi Mahto to her daughter Budhani Devi (defendant No. 1) by two registered sale deeds with the consent of her other daughters. It was further stated that Patwa Devi sold the entire share of Bodhi Mahto to her daughter Budhani Devi (defendant No. 1) by two registered sale deeds with the consent of her other daughters. Budhar Devi was put in exclusive possession of the said land and she also got her name mutated and has been paying rent to the State of Bihar to the knowledge of all concerned. The defendants denied the statement that after the death of Bodhi Mahto, his heirs came in joint possession with other co-sharers. The plaintiffs also denied the execution of the sale deed in favour of the defendant No. 1 for more than her share. Two daughters o Bodhi Mahto, Bhagia and Sugani accepted money in lieu of their respective shares prior to execution of the Sale deed by Patwa Devi in favour of Budhani Devi. Although the plaintiff No. 1, the defendant Nos. 39 & 40 and the husband of the plaintiff No. 6 have purchased the lands from Budhani Devi (defendant No. 1) on the basis of the sale deeds executed by Patwa Devi in favour of Budhani Devi, they have denied that the sale deeds executed by Budhani Devi have any infirmity or the same are void. The defendants claimed that all the plots were divided prior to the execution of the sale deeds by Patwa Devi and the purchasers are in peaceful cultivating possession of the said plots. The purchasers from Budhani Devi had purchased the specific plot with specific boundary. The purchasers also themselves had purchased the partitioned land of Khata Nos. 40. 41 & 46 by metes and bounds. The sons of Harkhu Mahto also partitioned the allotted land of their father among themselves and there has been separate dealings by the members. The defendants have denied the correctness of the genealogical table and the claims made in the plaint. The defendants have contended that the lands are partitioned by metes and bounds in he year 1960 and the parties are in actual and Khas possession of their respective shares. The purchasers from the co-sharers have been in peaceful possession of their purchased lands and they have got their names mutated and they are paying rent separately. The defendants submitted that the suit for partition is thus not maintainable and is fit to be dismissed. The purchasers from the co-sharers have been in peaceful possession of their purchased lands and they have got their names mutated and they are paying rent separately. The defendants submitted that the suit for partition is thus not maintainable and is fit to be dismissed. Learned Trial Court, on the basis of the said pleadings of the parties framed the following issues: (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got any valid cause of action for the suit? (iii) Is the suit barred by the law of limitation, waiver and acquiescence? (iv) Is the suit barred under the provisions of Specific Relief Act? (v) Have the plaintiffs got unity of title and possession over the suit land? (vi) Whether the plaintiffs are entitled for a decree of partition? If so, to what extent? (vii) To what other relief or reliefs the plaintiffs are entitled to get? 3. Both the parties led their evidences, documentary as well as oral. The plaintiffs examined as many as eight witnesses and also adduced the documentary evidences. 4. Exts. 1-1/b are the rent receipt of Khata No. 41 in the name of Bodhi Mahto and others. Certified copies of as may as 30 sale deeds have been brought on record and marked as Ext. 2 series. 5. The defendants, on the other hand, examined as many as 19 witnesses in support of their case and also relied on several documents including Ext. A series which are the rent receipts granted in respect of the land of Khata No. 41. The sale deeds produced by them were exhibited as Ext. B series which go to show several transactions and transfer of the suit lands. 6. Learned Trial Court after thorough discussion and appreciation of the facts and evidences on record held that there is no unity of title and possession over the suit land among the parties and decided the relevant Issue No. 5 against the plaintiffs and held that the plaintiffs have got no cause of action for the suit and the suit is not maintainable and that the plaintiffs are not entitled for the decree of partition, as prayed for. Learned Court below thus dismissed the suit. 7. Aggrieved by the said judgment and decree, the plaintiffs have preferred this appeal. 8. Learned Court below thus dismissed the suit. 7. Aggrieved by the said judgment and decree, the plaintiffs have preferred this appeal. 8. The main ground taken in this appeal is that there was sufficient evidence to prove the plaintiffs case and that the defendants failed to discharge their onus to prove previous partition as pleaded by them. The transactions made by the parties by virtue of the sale deeds have been strongly relied on by learned Court below in coming to the conclusion of previous partition, but the same are not of much significance. Only by separate mess, residence and separate dealings by the members are not sufficient to prove partition of the joint family property, Learned Court below failed to appreciate the facts and evidences brought on record properly and erroneously dismissed the plaintiffs suit. 9. On the other hand, it has been contended on behalf of the respondent that though there is presumption of jointness among the Hindu family, but the presumption becomes weaker and weaker by passage of time and that though the common ancestors of Bahadur Mahto had acquired the suit property, Bahadur Mahto died long ago and after his death, his sons were separated and they had separate mess, separate residence and separate dealings. It has been submitted that though separate residence, separate mess and separate dwellings individually do not go to prove previous partition among the family members, the cumulative effect of the same coupled with the recitals made in several sale deeds by the family members that there was partition in the family and they were in separate and exclusive possession of the lands of their respective shares leave no doubt for arriving at the conclusion that there had been a previous partition in the family. 10. Mr. Amar Kumar Sinha, learned Counsel appearing on behalf of the respondents, submitted that the number of registered documents (sic) the recital of previous partition among the members of the family. He drew attention of this Court on the recitals of Exts. B, B/1 and B/2. Exhibit B is the sale deed executed by Harkhu Mahto and Puran Mahto in favour of Nandlal Mahto and others in respect of the land of Khata No. 41 dated 20 1.2.82. Ext. He drew attention of this Court on the recitals of Exts. B, B/1 and B/2. Exhibit B is the sale deed executed by Harkhu Mahto and Puran Mahto in favour of Nandlal Mahto and others in respect of the land of Khata No. 41 dated 20 1.2.82. Ext. B/1 is the sale deed executed by Khedam Mahto S/O Harkhu Mahto in favour of Jitendra Prasad in respect of the land of Khata No. 41 dated 28.1.75 and Ext. B/2 is the sale deed executed by Budhani Devi in favour of Talu Mahto S/O Puran Mahto in respect of the land of Khata No. 41 dated 21.1.89. In the said sale deeds, there are clear recite s to show that there had been partition of the family properties and parties are in separate exclusive possession of the lands allotted to their respective shares. Learned Counsel submitted that the number of transactions by virtue of the registered sale deeds (more than 30 numbers) go to prove separate exclusive dealings by the family members and that there are inter se transactions among the family members and that there is a clear recital of partition among the family members. Learned Counsel referred to and relied on a decision of the Patna High Court in Ram Bahadur Nath Tiwary v. Kedar Nath Tiwari and Ors. to fortify his argurrent that the mutual transaction between the two members of the family is strong evidence of separation. Learned Counsel further relied on a decision of Patna High Court in Birchand Raut and Ors. v. Babu Ram Raut and Ors. reported in 1984 P.L.J.R 603 and contended that the sale deeds executed by the parties some time before institution of the suit are the clear proof of authentic: exercise of their exclusive ownership and to prove partition among the family members. Learned Counsel submitted that in the said sale deeds there are admissions made by the plaintiffs regarding the disruption of joint family and their separate and exclusive possession which clearly go to prove the partition of the joint property. Learned Counsel in order to support his contention relied on a decision of Ranchi Bench of Patna High Court (as then was) in Ganesh Sahu and Ors. v. Dwarika Sao and Ors. as also in Radhamani Bhuiyan and Ors. v. Diwakar Bhuiyan and Ors. . 11. Learned Counsel in order to support his contention relied on a decision of Ranchi Bench of Patna High Court (as then was) in Ganesh Sahu and Ors. v. Dwarika Sao and Ors. as also in Radhamani Bhuiyan and Ors. v. Diwakar Bhuiyan and Ors. . 11. The only point emerges for consideration in this appeal is as to whether the finding of previous partition recorded by learned Trial Court is correct and sound. 12. In order to appreciate the said point, it is necessary to scrutinize the facts and evidences brought on record. The plaintiffs claimed that the parties have inherited he properties of the common ancestors of Bahadur Mahato and they are still joint. Though there had been separate mess, residence and cultivation, the same were only for the sake of convenience. On the other hand, the defendants have made a specific case of previous partition and have stated that after the death of Bahadur Mahto, who died sometime after the survey operation leaving behind his sons Bodhi Mahto, Harkhu Mahto and Puran Mahto, the parties had jointly inherited and came in possession of the lands of Khata Nos. 41 and 46. It has been stated that in the year 1960 the three sons of Bahddur Mahto partitioned the land and separated them selves by metes and bounds. Plot No. 1334 was also subsequently partitioned in the year 1972. 13. The separation of mess, residence, cultivation and separate dealings and in that way the disruption in jointness has been admitted by the plaintiffs, They have the mselves pleaded that they were separate in mess and residence and there are admitted documents to show that there were several separate dealings and transactions. The plaintiffs have brought on record three rent receipts marked as Exts. 1, 1/a & 1/b which are dated 23.1.71, 28.1.74 and 19.1.76 granted in joint names of the parties in respect of the suit land. 14. It has been contended on behalf of the appellants that Ext. 1/b dated 19.1.76 at least goes to prove that the lands were joint till 1976 and there was no partition by metes and bounds and that the said rent receipt go to sufficiently demolish the defendants case that there was partition in 1960 as also in the year 1972 regarding the Plot No. 1334. However, Exts. 1/b dated 19.1.76 at least goes to prove that the lands were joint till 1976 and there was no partition by metes and bounds and that the said rent receipt go to sufficiently demolish the defendants case that there was partition in 1960 as also in the year 1972 regarding the Plot No. 1334. However, Exts. 2 to 2/z and in all as many as 30 sale deeds executed by the different members of the family in the names of several purchasers and also inter-se among the family members specifically go to demolish the plea of jointness or unity of title and possession. The rent receipts are the receipts issued by the Revenue Department on payment of rent and the same cannot be a proof of jointness or separation unless supported or corroborated by other evidences on record. 15. The defendants have brought on record a series of rent receipts to show that the land of Khata No. 41 was separately mutated in the name of the purchasers and the separate rent receipts have been granted to them. Those rent receipts have been exhibited as Exts. A series. On perusal of the contents of sale deeds executed by the plaintiffs, on which learned Counsel for the respondents drew my attention, I find much substance in the contentions of learned Counsel for the respondents that there had been partition of the joint property. Ext. B is the sale deed dated 12.10.82 executed by Harkhu Mahto to the husband of the plaintiff No. 2 and Puran Mahto (plaintiff No. 1) in favour of Nandlal Mahto & others in respect of the lands of Khata No. 41. Ext. B/1 is also a sale deed dated 18.1.75 executed by Khedan Mahto S/O Harkhu Mahto and the plaintiff No. 2 in favour of jitendra Prasad and others in respect of the land of Khata No. 41. Ext. 6/4 is the sale deed dated 28.1.89 executed by Puran Mahto (plaintiff No. 1) in favour of his son Talu Mahto in respect of the land of Khata No. 41. Ext. B/5 is the sale deed dated 5.4.82 executed by Khedan Mahto S/O Harkhu Mahto (plaintiff No. 2) in favour of Parmeshwar Mahto and others in respect of the land of Khata No. 1. Ext. Ext. B/5 is the sale deed dated 5.4.82 executed by Khedan Mahto S/O Harkhu Mahto (plaintiff No. 2) in favour of Parmeshwar Mahto and others in respect of the land of Khata No. 1. Ext. B/6 is the sale deed dated 28.3.80 executed by Harkhu Mahto (husband of plaintiff No. 2) in favour of Jadu Mahto and others in respect of the land of Khata No. 41. Ext. B/7 is the sale deed dated 16.8.81 executed by Khedan Mahto S/O Harkhu Mahto (plaintiff No. 2) to Ram Tahal Mahto in respect of the land of Khata No. 41. On going through the recitals of the said sale deeds along with other sale deeds which are on record, I find that the same go to clearly substantiate that there had been previous partition among the family members of the parties. The members have been in separate exclusive possession of the properties of their respective shares. Learned Trial Court after thorough consideration of the said sale deeds along with other sale deeds i.e. Exts. B/2, B/3, B/4, B/5, B/7 & B/8 and others evidences on record has rightly come to the conclusion that there had been partition of the suit lands among the family members. The same conclusion is also supported by the principles laid down in the decisions of the Patna High Court in the cases of Ram Bahadur Nath Tiwary, Birchand Raut and in Ganesh Sahu (supra). 16. The finding of learned Court below is further supported by the evidences of the witnesses of the plaintiffs PW-2, PW-3, PW-4, PW-5, Pw-6 & PW-7 and also the witnesses of the defendants i.e. DW-2, DW-4, DW-5, DW-6, DW-7, DW-9, DW-11, DW-12, DW-13, DW-14 & Dw-15. 17. Learned Trial Court has lightly concluded that there is no unity of title and possession and there had been partition of the joint property among the parties. 18. The said findings of learned Court below are sound and legal and I find no point to differ from the conclusion arrived at by learned Trial Court. The judgment and decree of learned Trial Court is upheld. This appeal is, accordingly, dismissed. However, there is no order as to costs.