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2007 DIGILAW 595 (JHR)

Mihir Chandra Pandey v. Chandi Charan Pandey

2007-07-27

DABBIRU GANESHRAO PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J. 1. This appeal filed by the appellant is against the common judgment dated 8.9.2000 passed by the Sub-Judge II, Chas in Title (Partition) Suit No. 36 of 1996 and Title (Eviction) Suit No. 23-A of 1996 and Title (Eviction) Suit No. 23-B of 1996. The two title suits for eviction vide Title (Eviction) Suit No. 23-A of 1996 and 23-B of 1996 was filed by the respondent No. 1, Chandi Charan Pandey, against the present appellant Mihir Chandra Pandey and against Gyanda Pandey, (respondent No. 3) herein, for their eviction from the premises mentioned in the Schedule to the plaints. Title Suit 36 of 1996 was filed by the appellant Mihir Chandra Pandey against the respondents for partition seeking 1/4th share in the suit properties. 2. Facts of the case pertaining to Title Suit No. 36 of 1996 are as follows: The suit for partition was filed by the present plaintiff/appellant against the respondents who are brothers, seeking partition of the purported joint family property mentioned in the schedule to the plaint and claiming 1/4th share in the said properties. His contention is that his father Devendra Pandey acquired his share in the ancestral property on partition from his co-sharers and in addition to the share in the lands, the father and brother Balram Pandey (respondent No. 2) used to run a shop, which used to yield a reasonable income. The father Devendra Pandey after selling away the ancestral properties, purchased land in the name of his eldest son Chandi Charan Pandey (respondent No. 1) at Chas. which has been fully described in the Schedule-B to the plaint. Furthermore, out of the joint family income and the income earned from the shop, a dwelling house was also constructed on the lands purchased at Chas and after construction of the house, Devendara Nath Pandey shifted his family to Chas where he died eventually. It is claimed by the plaintiff that Devendra Pandey along with his sons and daughter was living joint in mess and property and even after his death, all his four sons continued to remain joint. The plaintiff "has claimed that the parties are governed by Mitak-shara School of Hindu Law. It is claimed by the plaintiff that Devendra Pandey along with his sons and daughter was living joint in mess and property and even after his death, all his four sons continued to remain joint. The plaintiff "has claimed that the parties are governed by Mitak-shara School of Hindu Law. Further case of the plaintiff is that his brother Chandi Charan Pandey (respondent No. 1) sold 3 decimals of land in plot No. 7790 situated at the native village, to one Bipin Chandra Mahato, while his other brother Gyanda Pandey (respondent No. 3) also sold 4 decimals of land in plot No. 7789 to one Gauri Shankar Tiwary. Both the purchasers were impleaded as defendants in the suit. The plaintiffs further case is that he was served with a legal notice dated 11.2.1996 sent by respondent No. 1 alleging therein that house at Chas (described as item No. 3 in Schedule-B) was the exclusive property of respondent No. 1 and that the plaintiff and his brother Gyanda Pandey were in occupation of the said house of respondent No. 1 as licensees and demanding their eviction from the house. The plaintiff served a counter reply claiming that the house was a joint family property and not the exclusive property of respondent No. 1 and had demanded 1/4th share in the house property, besides share in other properties of the family mentioned in Schedule-B to the plaint. The respondent No. 1 was the sole contesting party, who vide his written statements had denied and disputed the entire claim of the plaintiff. The other defendants did not offer any contest to the plaintiffs claim. On the contrary, they filed written statements admitting the whole case of the plaintiff and supporting his case. The case of the contesting defendant/respondent No. 1 is that the property as mentioned in Schedule-B to the plaint are not the joint family property, but his self-acquired property. His assertion is that his lather Devendra Pandey did never acquire any property at Chas, since he had no income of his own and he (respondent No. 1) being an.employee of the UCO Bank had acquired the properties both at Chas and also at his native village out of his own income and as such the said properties cannot be subject to any partition. Laying specific claim of right over properties mentioned in item Nos. Laying specific claim of right over properties mentioned in item Nos. 1, 2, 3, 5 of Schedule-B to the plaint, respondent No. 1 has claimed that the lands mentioned in item No. 3 of the Schedule-B was purchased by him with finance borrowed from the UCO Bank and the house thereon constructed by his exclusive earnings. His two brothers, namely, plaintiff Mihir Pandey and respondent No. 3 Gyanda Pandey were unemployed and were sitting idle and as such he had allowed both of them to live in his house at Chas as licensees. Later, when he found that both the brothers were scheming and indulging in evil designs to usurp his property, he had served legal notice on both of them, demanding their eviction from his house and on their failure to vacate the house, he had instituted the suit for eviction against his brothers which were registered as Title (Partition) Suit No. 23-A of. 1996 and 23-B of 1996 respectively. Further case of the defendant/respondent No. 1 is that his father, Devendra Pandey used to occasionally visit and stay at his house at Chas and it was therefore that the fathers name came to be recorded in the voters list at Chas in addition to his name in the voters at his native village. The defendant No. 2 Balram Pandey (respondent No. 2) while supporting the case of the plaintiff had claimed that he was engaged as a compounder at Ranchi since 1975-77 and from his earning he had contributed to the joint family. Later on, he along with his father Devendra Pandey opened a shop at their native village and from the income derived from the shop and from the agricultural produce of the lands at the native village, the entire members of the family used to be maintained and after meeting the family expenditure, they used to have substantial savings. Later on, he along with his father Devendra Pandey opened a shop at their native village and from the income derived from the shop and from the agricultural produce of the lands at the native village, the entire members of the family used to be maintained and after meeting the family expenditure, they used to have substantial savings. Later on, in order to ensure that the plaintiff should settle, the respondent No. 2 left the shop after handing over the charge of the same to the plaintiff in the year 1980 and shifted to Dhanbad in a rented house and worked as an advocates clerk and from his earnings, he had contributed a major share to his father at the time of purchase of the land at Chas and also at the native village and had also contributed substantial amount in construction of the house at Chas which stands in the name of the respondent No. 1 and in the name of all other brothers including respondent No. 2. His further assertion is that his other brothers had also contributed money to their father and has claimed the entire property in the Schedule-B to the plaint as the joint family property. 3. The trial Court clubbed all the three cases for the purpose of passing a common judgment and framed the following issues on the basis of the rival pleadings of the parties: (i) Are the three suits maintainable in their present form? (ii) Whether the three suits are barred by the principles of estoppel, waiver and acquiescence? (iii) Is there any unity of title and unity of possession with respect to the Schedule-B land of title Suit No. 36 of 1996? (iv) Whether the suit house detailed in the Schedule-A of T.S. No. 23/96 and T.S. 23-B/96 and in item No. 3 of the Schedule-B of T.S. No. 36 of 1996 is the joint family property or the self-acquired property of Chandi Charan Pandey? (v) Whether Mihir Chandra Pandey and Gyanda Prasad Pandey are occupying the portion of the above suit house as licencee or as a co-owner? (vi) Whether the plaintiff of T.S. No. 36 of 1996 is entitle for 1/4th share of the Schedule-B property? (vii) Whether Chandi Charan Pandey plaintiff of Title Suit No. 23-A/96 and TS No. 23-B/96 is entitled for decree of eviction against Mihir Chandra Pandey and Gyanda Prasad Pandey? (vi) Whether the plaintiff of T.S. No. 36 of 1996 is entitle for 1/4th share of the Schedule-B property? (vii) Whether Chandi Charan Pandey plaintiff of Title Suit No. 23-A/96 and TS No. 23-B/96 is entitled for decree of eviction against Mihir Chandra Pandey and Gyanda Prasad Pandey? (viii) To what other relief or reliefs the parties are entitled for? 4. The main issue considered by the trial Court is whether there was any unity of title and unity of possession with respect to the Schedule-B properties mentioned in the plaint of Title Suit No. 36 of 1996 and the related issues as to whether the house described in Schedule-A to the plaint of Title Suit No. 23-A of 1996 and Title Suit No. 23-B of 1996 corresponding to item No. 3 of the Schedule-B of Title Suit No. 36 of 1996 is joint property or self-acquired property of Chandi Charan Pandey, respondent No. 1? The trial Court on considering the evidences adduced by the parties recorded its finding that item Nos. 1, 2, 3 and 5 of the Schedule-B properties mentioned in the plaint of Partition Suit No. 36 of 1996, was self acquired properties of defendant Chandi Charan Pandey/respondent No. 1 and out of which the respondent No. 1 had sold item No. 5 to Gauri Shankar Tiwari (defendant No. 13) and had conveyed to the purchaser absolute right, title and possession over the demised properties while item No. 4 was the self-acquired property of Gyanda Pandey who by virtue of the sale-deed executed in favour of the defendant No. 12. had conveyed absolute right, title and interest in the property in favour of the purchaser. In respect of item No. 6 of the Schedule-B property, the trial Court recorded its finding that the suit properties comprising of land of 47 decimals was transferred by Gyanda Pandey on 10.11.1984 by virtue of the sale deed. The said land was originally transferred in favour of Gyanda Pandey by his father Devendra Pandey to enable him to meet worldly expenses. Thus, while rejecting the plaintiffs claim that item Nos. 1 to 6 were joint family property, the trial Court conceded the plaintiffs claim in respect of item No. 7 of the Schedule-B property comprising of 8 decimals of land of plot No. 707 at Mouza Sarisakuri as ancestral property while alone could be subject to partition. Thus, while rejecting the plaintiffs claim that item Nos. 1 to 6 were joint family property, the trial Court conceded the plaintiffs claim in respect of item No. 7 of the Schedule-B property comprising of 8 decimals of land of plot No. 707 at Mouza Sarisakuri as ancestral property while alone could be subject to partition. On the basis of the above findings, the trial Court also recorded its finding that both Mihir Pandey and Gyanda Pandey (defendants in Title Suit Nos. 23-A of 1996 and 23-B of 1996 respectively) were in possession of the suit premises (item No. 3 of the Schedule-B property of the partition suit) as licencees and not as a co-owners with the respondent No. 1. The trial Court has also recorded its finding that Chandi Charan Pandey (respondent No. 1) had separated from the family in the year 1960 and there was no unity of title and possession between the parties. Certain undisputed facts, which surfaced on record were considered by the learned trial Court. Those facts not disputed by the parties are that items Nos. 1, 2 and 3 besides item No. 5 mentioned in Schedule-B of the plaint in the partition suit, were properties purchased in the name of respondent No. 1, Chandi Charan Pandey, whereas items No. 4 and 6 were purchased in the name of Gyanda Pandey (respondent No. 3). It is also not disputed that lands of item No. 4 was transferred by Gyanda Pandey by a registered deed executed on 27.12.1990 in favour of one Gauri Shankar Tiwari (respondent No. 14) while item No. 5 of the Schedule-B property was transferred by way of a deed of sale executed on 21.3.1990 by Chandi Charan Pandey respondent No. 1 in favour of one Bipin Chandra Mahato (respondent No. 12). These sale-deeds have been adduced in evidence as exhibits. Likewise, undisputedly, Gyanda Pandey had sold the lands mentioned in item No. 6 of Schedule-B of the plaint by virtue of the sale-deed executed on 10.4.1994 in favour of another person. 5. The trial Court has based its findings on its observation that the plaintiff in the partition suit has not been able to discharge his onus Lo prove the joint family nucleus in order to establish his claim that the suit property was acquired by the joint family. 5. The trial Court has based its findings on its observation that the plaintiff in the partition suit has not been able to discharge his onus Lo prove the joint family nucleus in order to establish his claim that the suit property was acquired by the joint family. The trial Court has also observed that admittedly the suit properties, except the lands described in item No. 7 of the Schedule-B, were not ancestral properties and that the father, namely, Devendra Nath Pandey had no sources of income, nor any of his sons, except respondent No. 1 Chandi Charan Pandey had any earning of his own when the properties were acquired. The trial Court has also observed that respondent No. 1 Chandi Charan Pandey was the only earning member in the family who was employed in the UCO Bank. 6. The appellant has assailed the impugned judgment of the trial Court on the ground that the findings recorded are totally perverse and against the weight of the evidence on record and the trial Court has seriously erred in ignoring the concept of Hindu Family governed by Mitakshara Family of Hindu Law. Learned Counsel for the appellant explains that admittedly the plaintiffs father Devendra Nath Pandey had acquired his share of more than 2-1/2 acres of land in the ancestral properties after partition from his brother. It is also not disputed by the contesting defendants that the father and all his sons used to live jointly in mess and the family used to be maintained from the income derived from the land. It is also not disputed that a grocery (kirana) shop used to be run by the father Devendra Nath Pandey along with the plaintiffs brother Balram Pandey at the native village which used to yield income for the family. Learned Counsel adds that it is not disputed that there was no partition of land and the properties belonging to the joint family. Learned Counsel adds that it is not disputed that there was no partition of land and the properties belonging to the joint family. It is further argued thai in view of the evidence adduced by and on behalf of the plaintiff/appellant supported by the written statement of defendants No. 2 to 14, the trial Court ought to have appreciated that there was a joint family nucleus comprising of income derived from the land and the shop which generated sufficient savings for the purpose of acquiring items of lands mentioned in Schedule-B to the plaint of the partition suit including the lands purchased at Chas and this income together with the contribution made by the plaintiff and defendants 2 and 3, was invested for construction of the house on the land at Chas described as item No. 3 in the Schedule to the plaint. Learned Counsel argues that the plaintiff having discharged his onus that there was a joint family nucleus from which suit properties were acquired, the trial Court has erred in accepting the contention of the respondent No. 1 that the properties were self acquired properties of respondent No. 1. 7. It is relevant to note here that though the plaintiff in the partition suit claimed that the parties are governed by Mitakshara Family of Hindu Law, the defendant/respondent No. 1 has denied the claim and has counter asserted that the parties are governed by Daya Bhaga School of Hindu Law. Though no specific and separate issue was framed on this pleading, but the learned trial Court on the basis of the evidence has inferred that the parties are governed by Daya Bhaga School of Hindu Law. 8. Refuting the entire grounds advanced by the appellant, learned Counsel for the defendant/respondent 1 while supporting the impugned judgment of the trial Court, would explain that the fact that the parties are governed by Daya Bhaga School of Hindu Law is confirmed by the plaintiffs own witnesses No. 3 and 5. As such, under the Daya Bhaga School of Hindu Law. there is no presumption that the properties purchased by the son in his own name during the life-time of his father, is a joint family property. As such, under the Daya Bhaga School of Hindu Law. there is no presumption that the properties purchased by the son in his own name during the life-time of his father, is a joint family property. Learned Counsel invites attention to the admitted fact that the father, namely, Devendra Pandey along with his agnates had transferred 70 decimals of land in the name of his eldest son, respondent No. 1 whereby the respondent No. 1 had acquired his exclusive right of title, possession and interest on the land which he had sold subsequently to defendant No. 13. Similarly, pieces of land which were acquired by and in the name of respondent No. 3 had enabled him his exclusive right over the property which the subsequently transferred by way of sale to respondent No. 12. Learned Counsel argues that under such circumstances, the onus to prove that it was joint property, is on the party asserting that it is joint family property and only when the plaintiff succeeds in discharging the onus, the burden shifts on the respondent No. 1 to prove that the property was his self-acquired property. Learned Counsel further adds that even if admitted that the lands at the native village was acquired by his father by way of share in the ancestral property, it is to be seen whether the said property of the father could yield sufficient income not only to meet the family expenses, but also to enable substantial savings from which the nucleus could be constituted for enabling investment in the purchase of other properties. Referring to the evidence of the plaintiffs witnesses, learned Counsel submits that none of these witnesses have claimed personal knowledge regarding the transactions of purchase of Schedule-B properties as they admit that none of the transactions took place in their presence. On the. contrary, these witnesses of the plaintiff acknowledge the fact that the father Devendra Pandey and his co-sharers had sold lands at the native village to respondent No. 1 who at the relevant time was already an earning member. These witnesses and in particular PW 4 has acknowledged that respondents 1 and 3 had acquired separate properties at Chas as described in items 5 and 4 respectively in Schedule-B to the plaint. These witnesses and in particular PW 4 has acknowledged that respondents 1 and 3 had acquired separate properties at Chas as described in items 5 and 4 respectively in Schedule-B to the plaint. Referring next to the evidence of the witnesses adduced on behalf of the contesting defendant/respondent No. 1, learned Counsel explains that the witnesses have adduced overwhelming evidence to confirm that the properties of item No. 3 of the Schedule-B property was acquired by respondent No. 1 out of his own earnings and from the money borrowed by him from the bank where he was an employee. The evidence also confirm that the house structure standing on the land mentioned in item No. 3 of the Schedule-B to the plaint was also constructed exclusively by respondent No. 1 out of his self-earnings. On the issue as to whether the joint family nucleus had sufficient fund to acquire property, the learned Counsel has read out the evidence of the plaintiffs witnesses and submits that in absence of the specific pleadings by the plaintiff that the income derived from the agricultural produce from the land situated at the native village were used for acquiring the properties as mentioned in Schedule-B to the plaint, it cannot be claimed by the plaintiff that the agricultural income was used for such purposes, other than the maintenance of the family. Learned Counsel adds that as regards the income purportedly generated from the shop at the native village, there is no definite evidence adduced by the plaintiff regarding the actual amount of income derived and that the shop had potential to yield surplus income, so as to enable the purchase of Schedule-B properties involved in the suit. On the other hand, the respondent No. 1 had adduced sufficient evidence to confirm; that the properties were acquired by him by his exclusive earnings and the money was generated by way of loan and other resources. 9. The evidence at paragraph 10 of plaintiffs witness No. 2 and that of plaintiffs witness No. 5 at paragraph 6 indicates that the parties are governed by Daya Bhaga School of Hindu Law. Both the witnesses have stated that sons did not acquire any right in the property during the life time of the father and that such right could be inherited only after the demise of the father. Both the witnesses have stated that sons did not acquire any right in the property during the life time of the father and that such right could be inherited only after the demise of the father. The presumption with regard to the joint family and the joint family property applicable under the Mitakashara Hindu law would also apply to the case under Daya Bhaga School of Hindu Law, but. with a difference that when the properties are purchased by the son in his own name during the life time of the father, there is no presumption under the Daya Bhaga School of Hindu Law, that such property is joint family property. The onus of proof would therefore be on the party asserting that it is the joint family property and not separate property. Where the property stands in the name of a member of a Hindu joint family governed by Daya Bhaga School of Hindu Law, the matter for enquiry would be the source where from the consideration money came. Whether it was the property of the father or whether it was the self acuired property of the son, has to be decided on the basis of the evidence adduced. Mere proof of existence of join I family under Daya Bhaga School of Hindu Law, does not lead to the presumption that the properties held by any member of the family is joint and the burden to prove lies upon the person who asserts that it is the joint family property and that the joint family property which from its nature and relative value may have formed nucleus from which the property in dispute could be acquired. It is only then that the burden shifts to the party claiming self acquisition to establish affirmatively that the property was acquired without joint family property. The relevant factor is the income which the joint family property yields. 10. In the instant case, the main issue which has to be determined is whether the plaintiff has adduced sufficient evidence to prove that the family comprising of his father and brothers possessed any property jointly which property from its nature and relative values, could have formed nucleus from which the property described in Schedule-B to the plaint could be acquired. 11. 11. From the evidence, even as admitted by the plaintiff and his witness, it would be seen that the father Devendra Nath Pandey and his brothers had sold a portion of the ancestral land situated at the native village way back in the year 1965 for a sum of rupees one thousand in favour of respondent No. 1, thereby conveying absolute right, title and interest over the property in favour of the respondent No. 1. It is also admitted by the plaintiff and his witnesses that the respondent No. 1 being the eldest son, was an earning member and he had later joined service under the UCO Bank by way of regular employment. It would also appear from the evidence adduced by the plaintiff that the agricultural income derived from the shops at the native village could hardly yield Rs. 8,000/- to Rs. 10,000/- per annum and in order to supplement the expenses for the maintenance of the family, respondent No. 1 used to remit money to his father. The plaintiff has not adduced any evidence regarding the actual earnings derived from the agricultural produce or from the shop at the native village, nor has he adduced evidence to confirm that the income so derived was sufficient for savings. The evidence is thus totally insufficient to confirm that the joint family property nucleus had sufficient fund to acquire properties mentioned in Schedule-B to the plaint. It would also be seen from the evidence adduced by the plaintiff that while he was self employed in the native village, his brother (respondent No. 3) was also unemployed. The plaintiff has not adduced any evidence to indicate that he had sufficient earnings to enable him to save money and to contribute money for the purpose of acquiring Schedule-B property. It is therefore apparent that the plaintiff has not been able to discharge his onus to prove that there was joint family nucleus and that the Schedule-B properties were acquired from funds of the joint family property. On the other hand, respondent No. 1 has adduced sufficient evidence to confirm that right from his early age, he used to earn and that he had taken up separate residence at Chas from his father and his brothers and he had acquired the suit properties out of his own earnings. On the other hand, respondent No. 1 has adduced sufficient evidence to confirm that right from his early age, he used to earn and that he had taken up separate residence at Chas from his father and his brothers and he had acquired the suit properties out of his own earnings. The fact that he was an earning member even from his early age is admitted by the plaintiff and his witnesses also and it can be presumed that he had the financial capacity to pay the consideration amount of rupees one thousand to his father from transfer of the land situated at the native village in his name. It may be noted that it has come in evidence that the father had required money for the purpose of meeting the family expenses. It has also come in evidence adduced by the plaintiff that all the brothers namely the plaintiff and the defendants had taken up separate residence along with their respective families at different places. Though the plaintiff and the respondent Nos. 2 to 11 claim that they had contributed money towards purchase of the suit properties and towards construction of the house described in item No. 3 of the Schedule-B to the plaint, but they have not adduced any evidence as to the specific amount paid by them individually or the total expenditure incurred for construction of the house. On the other hand, evidence adduced by respondent No. 1 gives positive indication that the lands Particularly mentioned in items 1, 2, 3 and 5 of Schedule-B which were admittedly acquired in his name, were purchased from his own earnings and from the money arranged by him from various resources as his exclusive and self- acquired properties. 12. From reading of the impugned judgment, it appears that the learned trial Court has discussed the evidence of each of the witness adduced by the plaintiff and the contesting defendant as also the evidence of defendant No. 2 and has recorded its finding after elaborate discussion of the evidence. I do not find any infirmity in the findings recorded by the learned Court below. 13. There is no merit in this appeal, which is dismissed accordingly. But in the facts and circumstances of the case, parties will bear their own costs.