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Jharkhand High Court · body

2011 DIGILAW 962 (JHR)

Pokhan Yadav v. Parmeshwar Yadav

2011-10-18

N.N.TIWARI

body2011
Judgment This second appeal is against the judgment and decree of learned Additional District Judge, FTC-III, Hazaribag passed in Title Appeal No.15 of 2004 whereby said learned lower appellate court has affirmed the judgment and decree dated 25.3.2004 passed by learned Sub-Judge V in P.S. No.49/1991 and dismissed the appeal. 2. The defendants are the appellants-appellants. 3. The plaintiffs had filed the suit seeking a decree for partition of their half share in the suit land appertaining to Khata Nos. 21, 31 and 39 of village Karkato, P.S. Bagodar (now P.S. Bishnugarh), District Hazaribag. 4. The case of the plaintiffs was that those lands were reclaimed by their common ancestors namely Gurudayal. However, he got the land recorded in the name of different persons in the survey settlement operation. Land of Khata No.21 was recorded in the name of Gurudayal, whereas land of Khata No.31 was recorded in the name of Nehal, one of his sons and Khata No.39 was recorded in the name of Bitlu, the other son of Gurudayal. After the death of Gurudayal his four sons namely Bitlu, Nehal, Harlal and Chetlal had jointly inherited the said property. Nehal and Chetlal died issueless. Bitlu died leaving behind his one son Jodha. Harlal died leaving behind his son Tulsi. The sons of Tulsi are the plaintiffs and sons of Jodha are the defendants. They have inherited the said property jointly and they are in continuous joint possession of the same. The plaintiffs claim their half share in the property. 5. The defendants contested the plaintiffs' claim. It was, inter-alia, stated that there was partition in the family earlier and after the partition the land of Khata No.39 was acquired by Bitlu and he was the absolute owner of the suit land appertaining to Khata No.39. The further case was that there was no unity of title and possession in the said land and the plaintiffs had no share much less half share as claimed by them. -2 6. On the basis of the said pleadings, several issues were framed by learned trial court. One of the issues was whether the land described in Schedule-B, C and D was the property of Bitlu or the same was joint family property available for partition, as claimed by the plaintiffs. 7. -2 6. On the basis of the said pleadings, several issues were framed by learned trial court. One of the issues was whether the land described in Schedule-B, C and D was the property of Bitlu or the same was joint family property available for partition, as claimed by the plaintiffs. 7. Learned trial court discussed the evidences adduced by the parties and thoroughly considered the same and came to the specific finding that the defendants failed to substantiate their claim that land of Khata No.39 was self-acquired property of Bitlu. He further held that the said property was joint family property and the plaintiffs have got half share. Learned trial court, thus, decreed the plaintiffs suit. 8. The defendants preferred appeal in the court of District Judge, Hazaribag being Title Appeal No. 15 of 2004. 9. The said appeal was finally heard and disposed of by learned Additional District Judge, FTC-III, Hazaribag. 10. Learned lower appellate court heard the parties and discussed the facts, evidences and materials on record in detail and, on due appraisal and scrutiny thereof, came to the finding that the defendants failed to prove that the suit land appertaining to Khata No.39 was self-acquired property of Bitlu. The suit land is joint family property and learned trial court has rightly recorded his finding and has rightly decreed the plaintiffs' suit. Learned lower appellate court upheld the judgment and decree of learned trial court and dismissed the appeal. 11. In this second appeal the said impugned judgment and decree has been assailed mainly on the ground that the onus of proving that the land of Khata No.39, though in the name of Bitlu, was acquired from the earning of land which have joint family nucleus. The plaintiffs did not discharge their duties and failed to adduce any such evidence on record. Learned trial court as well as learned lower appellate court failed to appreciate the said legal onus on the plaintiffs and erroneously held that the defendants failed to prove that the land of Khata no.39 was a self acquired property of Bitlu. 12. Learned counsel appearing on behalf of the appellants, on that premises, submitted that learned courts below have come to the erroneous findings due to the said wrong application of the principle of law and that the impugned judgment and decree is unsustainable and illegal. -3 13. 12. Learned counsel appearing on behalf of the appellants, on that premises, submitted that learned courts below have come to the erroneous findings due to the said wrong application of the principle of law and that the impugned judgment and decree is unsustainable and illegal. -3 13. I have heard learned counsel for the appellants and considered the facts and materials on record. I have also perused the judgment of learned courts below. I find that learned trial court has thoroughly discussed the facts and evidences on record and has come to the finding that the suit property was not a self acquired property of Bitlu as claimed by the defendants. The said finding of fact has been arrived at by properly discussing and appreciating the evidences on record. It has been considered that the specific case of the plaintiffs was that it was reclaimed by Gurudayal – the common ancestor of the plaintiffs and the defendants. But there is no specific claim of acquisition by Bitlu by virtue of any document or by any other mode in the written statement of the defendants. The said findings have been recorded after considering the evidences adduced by both the parties. 14. Learned lower appellate court has also independently gone into the facts and evidences in detail and arrived at the conclusion holding that there is no material on record to substantiate the claim of the defendants that the suit property was self acquired property of Bitlu. 15. It is well settled that when both the parties led evidences, the question of onus becomes irrelevant. 16. In the instant case both the parties have led their evidences and the courts below have duly considered and appreciated the evidences and have recorded their concurrent findings based on the evidences and materials on record. 17. I find no error or illegality in the impugned judgment and decree giving rise to any substantial question of law to be framed and decided in the second appeal. 18. This appeal is, accordingly, dismissed.