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2012 DIGILAW 1175 (PAT)

Sahjdeo Das v. Devi Das @ Deonandam Das

2012-08-24

MUNGESHWAR SAHOO

body2012
ORDER 1. Heard the learned senior counsel Mr. Dhrub Narayan appearing on behalf of the appellant, learned counsel Mr. Pramod Kumar Sinha appearing on behalf of respondent No.2 and the learned counsel Mr. Ashok Kumar appearing on behalf of respondent No.1 under Order 41 Rule 11 of the Code of Civil Procedure. 2. The plaintiff appellant appellant has filed this second appeal against the judgment and decree dated 30.4.2011 passed by District Judge, Munger in M.T.A. No. 2 of 2010 dismissing the appeal and thereby confirming the judgment and decree of the trial court dated 21.11.2009 passed by Munsif – 1st, Munger in Title Suit No. 48 of 2002 dismissing the plaintiff appellant simple suit for partition. 3. The plaintiff filed the aforesaid suit for partition claiming half share in the suit property alleging that the suit plot measuring 3 kattha 8 dhur was purchased by three brothers namely Dhana Das, Nandlal Das and Dilo Das in the year 1964. The plaintiff Sahdev Das and the defendant No.1 Devi Das are two sons of Dilo Das. Dilo Das sold his 1/3rd share to Phoolwati Devi through registered sale deed in the year 1972. Subsequently, Phoolwati Devi again transferred the suit property in the year 1980 and since after purchase the plaintiff and the defendant No.1 are continuing in possession of the suit property which is residential house. There was Panchayati regarding partition between the three brothers i.e. sons of Lalji in the year 1995 and the suit land was exclusively allowed by the Panches in favor of the plaintiff and defendant No.1. However, subsequently another Partition Suit No. 36 of 1999 was filed by both the brothers claiming to the extent of 1/3rd share from the total land measuring 3 kattha 8 dhur. In that partition both the brothers i.e. plaintiff and defendant No.1 claimed jointly 1/3rd share from other co-sharer i.e. two brothers of Dilo Das. The plaintiff alleged that subsequently in the year 2002 defendant No.1 sold 15 dhur of land to one Bhupendra Narayan Sinha, defendant No.2 and therefore, he filed present suit for partition to the extent of 1/2nd share in the suit property. 4. The defendant appeared and filed contesting written statement. According to the defence the property was sold by Dilo Das to Phoolwati Devi in the year 1972. At that time the plaintiff and the defendant were minor. 4. The defendant appeared and filed contesting written statement. According to the defence the property was sold by Dilo Das to Phoolwati Devi in the year 1972. At that time the plaintiff and the defendant were minor. Subsequently in the year 1980 the vendee Phoolwati again re-transferred the suit property in the name of defendant No.1, Devi Das through registered sale deed and the defendant No.1 purchased the same from his own fund, as such the property is his self acquired property. Accordingly, he has transferred the property in the year 2002 in favour of defendant No.2 and the remaining property is concerned he is the exclusive owner of the same. 5. After trial the trial court recorded a finding that the suit property is the self acquired property of the defendant No.1 and in fact the plaintiff’s simple suit for partition is not maintainable because the plaintiff neither challenged the sale deed executed by Dilo Das in favour of Phoolwati nor the sale deed executed by Phoolwati in the year 1980 in the name of defendant No.1, Devi Das nor the sale deed executed by Devi Das in favour of defendant No.2 in the year 2002. The plaintiff filed title appeal and the lower appellate court dismissed the appeal. 6. The learned senior counsel Mr. Dhrub Narayan appearing on behalf of the appellant raised two grounds. Firstly, according to the learned counsel in the plaint of the partition suit No.36 of 1999 both the brothers were the plaintiffs and both of them jointly claimed 1/3rd share which indicate that the defendant No.1 admitted that the plaintiff is also co-owner of the property. According to the learned counsel both the courts below have wrongly not relied upon this admission of the defendant No.1 in the plaint. Secondly, the learned counsel submitted that a Panchayati was held regarding the partition of the property between the three sons of Lalji Das i.e. Dhana Das, Nandlal Das and Dilo Das and in the Panchayati the property was exclusively allotted by the Panches in favour of both the brothers i.e. the plaintiff and the defendant No.1 and, therefore, there is presumption that the plaintiff is also co-owner of the property. The learned counsel further submitted that in the written statement the defendant also stated that even if the plaintiff has paid Rs.470/- as consideration amount to Phoolwati in the year 1989 then also the plaintiff has got no share in the property because the property stands in the name of defendant No.1. The learned counsel further submitted that it was the onus on the defendant No.1 to have proved the fact that the property was purchased out of his own earning but the courts below have wrongly held that plaintiff should have proved that the property was purchased either by contribution of the plaintiff or out of the joint family fund. Because of non-consideration of these grounds the judgments of both the courts below are vitiated. 7. On the other hand, the learned counsel appearing on behalf of the respondent submitted that all these grounds have been considered by the courts below and after considering the evidences oral and documentary recorded finding that the property is the self acquired property of defendant No.1 and this finding is pure finding of fact therefore, it cannot be interfered with in second appellate jurisdiction. The learned counsel further submitted that in fact the plaintiff filed simple suit for partition claiming half share without challenging the sale deed in the year 1972 executed by their father Dilo Das in favour of Phoolwati Devi and the sale deed executed by Phoolwati Devi in favour of defendant No.1 in the year 1980 and the sale deed executed by defendant No.1 in favour of defendant No.2 in the year 1980 and unless plaintiff challenged those sale deeds he cannot claim any partition and in fact both the courts below have rightly held that simple suit for partition was not maintainable. According to the learned counsel so far the pleading in the written statement regarding payment of consideration by the plaintiff is concerned is not at all admission of the defendant respondent. The learned counsel further submitted that it is not the case of the plaintiff that the property was purchased out of joint family property nor it is the case of the plaintiff that he contributed any amount nor it is the case of the plaintiff that the property was purchased when both brothers were joint. 8. The learned counsel further submitted that it is not the case of the plaintiff that the property was purchased out of joint family property nor it is the case of the plaintiff that he contributed any amount nor it is the case of the plaintiff that the property was purchased when both brothers were joint. 8. It is admitted fact that Dilo Das was the father of the plaintiff and defendant No.1 and the suit property was self acquired property of Dilo Das. It is also admitted fact that the suit property was sold by Dilo Das in the year 1972 in favour of Phoolwati Devi Ext.-D. It is also admitted fact that the said Phoolwati Devi re-transferred the property in the year 1980 to Devi Das defendant No.1. The sale deed stands in the name of defendant No.1 only Ext.-C. From perusal of the judgments of both the courts below the simple case of the plaintiff is that he is in possession of the property. Nowhere it is pleaded that the property was purchased by the joint family fund in the name of defendant No.1 in the year 1980. It is also not pleaded by the plaintiff that how much amount he contributed in purchase of the said property in the year 1980. It is also not the case of the plaintiff that the property is joint family property. The case of the plaintiff is that he is the co-owner of the property. As stated above admittedly the sale deed stands exclusively in the name of defendant No.1. In such circumstances, unless he proves that he contributed consideration amount in purchase in the year 1980 he cannot be allowed to claim any share in the property. According to the plaintiff’s case on the death of Dilo Das the property was inherited by the parties. So far this case is concerned since the property had already been sold by Dilo Das to Phoolwati Devi no question of inheritance arises. From perusal of the trial court judgment it appears that the trial court categorically recorded the finding that in the present case the plaintiff and defendant are admittedly living separately having their own separate business therefore, admittedly there is no joint family. If this is the position then also it cannot be said that the property was purchased by the joint family. If this is the position then also it cannot be said that the property was purchased by the joint family. So far the submission of the learned counsel for the appellant that the plaintiff should have proved the fact that the property was purchased by him out of his own earning is concerned it may be mentioned here that the property stands exclusively in the name of defendant No.1 and according to Hindu law in a suit for partition a party who claims that any particular item of the property is joint family property the burden of proving that it is so rests on the party ascertaining it. Admittedly in the present case except the suit property there is no other property of the parties therefore the plaintiff should have proved the fact that in fact the property is joint family property. So far Panchayati Ext.1 is concerned, it may be mentioned here that this Panchayati alleged to have been taken place in the year 1995. Subsequently the Partition Suit No. 36 of 1999 was filed but there is no whisper in the plaint of Partition Suit No. 36 of 1999. Moreover if there was partition by metes and bounds by the Panches why the partition suit was again filed after four years in the year 1999. Moreover, all these aspects of the matter have already been considered by the trial court and by the appellate court. After considering all aspects of the matter both the courts below recorded a finding that the property is self acquired property of defendant No.1. 9. The Apex Court in the case of Narendra Gopal Viddyarthi vs. Rajat Viddyarthi (2009) 3 SCC 287 held that a finding of fact arrived at by the first appellate court is ordinarily final. Its correctness can be questioned if inter alia the same was based upon no evidence or is otherwise perverse or that correct legal principles were not applied. It appears that in that case the same question was involved i.e. whether the suit property was self acquired property or joint family property. The High Court formulated the substantial question of law as to whether the property in dispute is a joint Hindu family property or not and allowed the second appeal. It appears that in that case the same question was involved i.e. whether the suit property was self acquired property or joint family property. The High Court formulated the substantial question of law as to whether the property in dispute is a joint Hindu family property or not and allowed the second appeal. The Apex Court held that the question formulated namely as to whether the property in dispute is joint Hindu family property is not a substantial question of law. We fail to understand as to on what basis the said substantial question of law was formulated. In view of the above settled principles of law the question raised in the present second appeal is pure question of fact. It is not the case that the judgments of both the courts below are perverse or that the evidences relied upon are not admissible or that the courts below have approached the case in wrong angle and thereby the judgment of both the courts below are vitiated. 10. In view of the above facts and circumstances of the case, in my opinion, none of the grounds raised by the learned counsel for the appellant are substantial question of law involved in this second appeal. In my opinion, therefore, no substantial question of law is involved in this second appeal for decision and thus, this second appeal is dismissed at the admission stage itself.