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2007 DIGILAW 330 (JHR)

Sudama Choudhary v. Chandrika Choudhary

2007-04-18

M.Y.EQBAL

body2007
JUDGMENT :- This Second Appeal by the defendants-appellants is against the judgment of reversal. The suit filed by the plaintiffs-respondents being Partition Suit No. 116 of 1981 claiming partition of half share in the suit property, was dismissed by the Sub-Judge, Garhwa in terms and judgment and decree dated 21-9-1987 holding that there had been previous partition between the parties. 2. In appeal filed by the plaintiffs-respondents, being Title Appeal No. 23/87, the appellate Court, namely, the Addl. District Judge, Garhwa, in terms of judgment and decree dated 21-9-88, allowed the appeal and set aside the judgment and decree passed by the trial Court and decreed the suit. 3. This second appeal was admitted for hearing on 10-7-90 on the following substantial question of law : "Whether the learned Court of appeal below has erred in law in not discussing the vital documentary evidence relied upon by the learned trial Court for coming to the conclusion that there has been a previous partition among the parties?" 4. The admitted facts are that Ganeshi Rawat was the common ancestor of the parties. He died leaving behind two sons, Nakkchhedi Choudhary and Sheo Balak. Plaintiff No. 1 is the son of Nakchhedi Choudhary whereas the defendants- appellants are the heirs of Sheo Balak. 5. Plaintiffs' case is that after the death of Ganeshi Rawat, his two sons, Nakchhedi Choudhary and Sheo Balak inherited the suit property jointly in equal shares and continued their joint possession. Soon thereafter, Nakchhedi died and Sheo Balak became the karta of the joint family. After some time the plaintiff No. 1 got employment at Dehri-on-son but the cultivation remained joint. The plaintiffs used to pay half rent to Sheo Balak and the produce of the land used to be distributed among them. Plaintiffs' further case is that after the death of Sheo Balak, the parties used to reside separately but the cultivation remained joint. On increase of family members , the plaintiffs demanded partition but the defendants refused their demand and hence the suit. 6. The case of the defendants-appellants/ on the other hand, as pleaded in the written statement, is that in 1345 Fasli (i.e. 1938) the plaintiffs and Sheo Balak amicably partitioned their landed property by metes and bounds and a memorandum of partition was prepared by one Harihar Dubey over which the plaintiffs and Sheo Balak put their L.T.Is. 6. The case of the defendants-appellants/ on the other hand, as pleaded in the written statement, is that in 1345 Fasli (i.e. 1938) the plaintiffs and Sheo Balak amicably partitioned their landed property by metes and bounds and a memorandum of partition was prepared by one Harihar Dubey over which the plaintiffs and Sheo Balak put their L.T.Is. Since then the plaintiffs and the defendants started living separately and came in separate possession of their property and they started cultivating their lands also separately as per partition. The parties got their names mutated separately and paid separate rent to the landlord as per the allotment made in the said partition. 7. Both the parties adduced evidence, both oral and documentary, in support of their respective cases. The trial Court, after considering the entire evidence, both oral and documentary, came to a finding that the partition actually took place in 1938 and since then the parties have been coming in separate possession of their respective shares and they have been enjoying their property separately and got their names mutated and paid rent to the ex-landlord and also to the State of Bihar. Accordingly, the trial Court dismissed the suit. 8. The appellate Court only discussed the validity and admissibility of the document of partition (Ext.B) and came to the conclusion that the document of partition is not admissible in evidence on the ground, inter alia, that when the partition document was prepared the plaintiff was minor and he denied his signature on the said document and also on the ground that the said document of partition, being unregistered, is not admissible in evidence. The appellate Court therefore, reversed the finding of the trial Court and decreed the suit for partition. 9. The substantial question of law formulated at the time of admission of this appeal is as to whether the judgment of the trial Court can be sustained in law for non -consideration of vital document about the previous partition. 10. As noticed above, the partition alleged to have taken place in 1938. The instant suit for partition was filed in 1981 i.e. after 40 years of the said partition. The moot question that falls for consideration is as to whether in between 1938 and 1981 the parties remained joint and there has been unity of title and possession. 10. As noticed above, the partition alleged to have taken place in 1938. The instant suit for partition was filed in 1981 i.e. after 40 years of the said partition. The moot question that falls for consideration is as to whether in between 1938 and 1981 the parties remained joint and there has been unity of title and possession. The defendants/appellants have proved series of documents in support of their case of previous partition and separate possession of their respective shares in the suit property. Ext.B is the memorandum of partition. Exhibits A/9 to A/20 are the Jamindari receipts in respect of the suit property in the name of the plaintiffs and in the name of the defendants separately as per partition. Ext.G is the return filed by the landlord after coming into force of the Bihar Lands Reforms Act 1950. In the return both the plaintiffs and the defendants have been shown as raiyats in respect of their respective shares. Exts F and F/1 are the certified copies of Register-II showing mutation of their names. Ext. F is in the name of defendants/appellants and Ext. F/1 is in the name of the plaintiff in Register-II. Similarly, Exts.A/21 to A/25 are the rent receipts granted by the State of Bihar in respect of ½ share of the land in the name of the defendants. Exts D to D/10 are the rent receipts granted by the Irrigation Department in the name of the plaintiff and the defendants in respect of their separate lands. 11. All these vital and important documents have not at all been considered by the appellate Court. Not only that the plaintiff who was examined as P.W.4 has admitted in para 4 about the partition but for the sake of convenience, in paragraph 13 he has admitted issuance of separate rent receipts. In paragraph 19 he has admitted that 2 years after the death of Ganeshi Rawat, he had been separately cultivating the lands and defendant/appellants had been also cultivating their lands separately. 12. In my opinion the documentary evidence adduced by the defendants are the strong evidence of previous partition. In this context reference may be made to the case of "Ramjhari Kuer and Ors. 12. In my opinion the documentary evidence adduced by the defendants are the strong evidence of previous partition. In this context reference may be made to the case of "Ramjhari Kuer and Ors. v. Deyanand Singh and Ors." AIR 1946 Patna 278, where it was held that separate entry in the record of right is by itself not conclusive proof of separation but is only a relevant evidence which may be taken into consideration on the question of separation. Their Lordships held that where the extent of such member's interest in the estate is not merely specified in record of right but such member is also recorded to be in separate possession over certain plots, the entries in the record of rights are of considerable importance indicating separation in the sense of not only definition of share but also separate possession. Separate possession over properties is a strong piece of evidence to rebut the ordinary presumption of jointness of Hindu family governed by Mitakshara School of Hindu Law. 13. In the case of "Mukhram Rai and Ors. v. Chandradeep Rai and Ors." (AIR1936 Patna 68). His Lordship Fazl Ali, J. observed that where parties have been in possession of and exercising rights of ownership over separate plots of land for a long time the Court might well presume that these lands have already been divided and rights of parties defined in regard to them in such a manner as to preclude their being re-partitioned. His Lordship further observed: "Both the Courts below have held that the parties separated in status many years before the suit and the lower Appellate Court has also disbelieved the defence case that there was a partition about 90 years ago. The decision of the first Court is that the defendants have succeeded in proving that the plaintiff had been separate from them in family status, in ownership of properties and in possession except in respect of the lands admitted in the written statement to be held by both parties in common tenancy. The learned District Judge affirms these findings but as he has also definitely found that there was no formal partition between the parties, the decree passed by him is assailed on the ground that even co-sharers, though separate in status, may claim partition of the family properties which have not been partitioned by metes and bounds. The learned District Judge affirms these findings but as he has also definitely found that there was no formal partition between the parties, the decree passed by him is assailed on the ground that even co-sharers, though separate in status, may claim partition of the family properties which have not been partitioned by metes and bounds. The facts of the present case, however seem to me to be somewhat similar to the facts of the case of 53 Bom 213(1) (sic) which was decided by the Privy Council in 1928. In the present case the parties have been in possession of and have been exercising rights of ownership over separate blocks of land for such a long time and in such a manner that a Court might well presume that these lands have already been divided and the rights of parties defined in regard to them in such a manner as to preclude their being re-partitioned. But in any event the finding of the learned District Judge that the defendants have acquired title to the lands of which they have been in exclusive possession for more than 12 years seems to me to be sufficient to dispose of his appeal." 14. Similar question raised in the case of "Radhamoni Bhuiyanin and Ors. v. Dibakar Bhuiya and Ors." (AIR 1991 Patna 95) was whether inequality of division of share lead to the conclusion that there had not been partition. His Lordship observed : "It is now well settled that although there is a presumption of jointness in a Hindu family but that presumption is stronger where the parties are full brothers but such presumption gets weaker and weaker as time passes and parties in third or fourth generation are found to be in separate possession of the lands. From a perusal of the khatian, Exhibits C and C/1, it appears that no plot, whatsoever, has been shown to be joint." Their Lordships further discussed the earlier views of the Supreme Court and other High Courts as under : "As noticed hereinbefore, the circumstances of partition are in favour of the defendants. From a perusal of the khatian, Exhibits C and C/1, it appears that no plot, whatsoever, has been shown to be joint." Their Lordships further discussed the earlier views of the Supreme Court and other High Courts as under : "As noticed hereinbefore, the circumstances of partition are in favour of the defendants. In Ramjhari Kuer v. Dayanand Singh, reported in AIR 1946 Patna 278 it has been held by the Division Bench of this Court as follows : "It is true that the fact that a member's share in a revenue paying estate has been separately defined in the collectorate land registration records and the record of rights, is by itself not conclusive proof of separation but is only relevant evidence which may be taken into consideration on the question of separation. But where the extent of such member's interest in the estate is not merely specified in the record of rights but such member is also recorded to be in separate possession over certain plots, the entries in the record of rights are of considerable importance indicating separation in the sense of not only definition of shares but also separate possession. Separate possession over properties is a strong piece of evidence to rebut the ordinary presumption of jointness of Hindu family governed by Mitakshara School of Hindu Law." 15. It is well settled that if the appellate Court, while reversing the finding of the trial Court, has ignored to consider the most vital important document, then the said finding of the appellate Court is perverse in law. The appellate Court has committed grave error of law in holding that the document of partition being unregistered, the evidence of separate possession for a long period of time shall be of no relevance. In my considered opinion, the appellate Court has not correctly decided the law and the judgment and decree of the appellate Court, therefore, cannot be sustained in law. 16. For the aforesaid reasons, this appeal is allowed and the judgment and decree passed by the appellate Court is set aside and that of the trial Court is restored. Appeal allowed.