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2013 DIGILAW 510 (PAT)

Asha Devi @ Asha Rani v. Ram Deo Singh

2013-04-16

CHAKRADHARI SHARAN SINGH

body2013
Oral Order Heard Mr. Surendra Kishore Thakur, learned counsel appearing on behalf of the appellants. 2. The defendants before the trial Court are the appellants in this present Second Appeal which has been placed before me for hearing under Order 41, Rule 11 of the Code of Civil Procedure. 3. The appellants are aggrieved by the judgment and decree dated 30.7.2011 and 6.8.2011 respectively passed by learned 3rd Additional Sessions Judge, Patna City, Patna in Title Appeal No. 83/ 2008 whereby he has dismissed the appeal and affirmed the judgment and decree dated 8.5.2008 and 21.5.2008 respectively passed by learned Sub-Judge-II, Senior Division, Patna' City, Patna in Title Suit No. 21/99 dated 8.5.2008 and 21.5.2008. Learned trial Court had partly allowed the suit in favour of the plaintiff. 4. The suit was filed for a decree of partition of suit property fully described in Schedules 1 and 2 of the plaint. As per the plaintiffs, who are the respondents in the present second appeal, Mathura Prasad Singh was the common ancestor of both the plaintiffs and defendants who died leaving behind his sons Sita Ram Singh. Sita Ram Singh died in the year 1978 leaving behind two sons Jagdeo Singh (original defendant No.2) and Ramdeo Singh (the plaintiff No.1). 5. As per the plaintiffs, the suit property described in Schedule-1 comprising Lot Nos. 1 to 8 was acquired by Sita Ram Singh. Schedule-2 of the plaint gives the details of bank account and account standing in the Post Office in the name of said Sita Ram Singh. The plaintiffs claim that they were entitled for half share with the defendants. Though the plaintiffs asked for their share, the defendants refused to accede to such request giving them cause of action to file the suit. 6. The defendants contested the suit by filing their written statements disputing the claim of the plaintiffs of jointness of the property. The defendants though admitted that the suit property was ancestral property and did not deny the genealogy as claimed by the plaintiffs, they contended that partition in the family had already taken place in the year 1981. They pleaded that after reducing into writing the memorandum of partition, defendants and plaintiffs further agreed and mutually decided to allot the suit premises among themselves. They further pleaded that accordingly the property of Lot Nos. They pleaded that after reducing into writing the memorandum of partition, defendants and plaintiffs further agreed and mutually decided to allot the suit premises among themselves. They further pleaded that accordingly the property of Lot Nos. 3, 4 and 5 were given to the defendants and that of Lot Nos. 1 to 6 and 7 to the plaintiffs and they had been coming in possession over such properties. 7. As regards Lot No.8 of the Schedule-I property the defendants pleaded that the parties were allotted half share each. Plaintiffs were allotted half of it towards east whereas the defendants towards west. According to them, the defendants already erected a wall demarcating their share and started construction on their share of the land in question. Lot No. 9 of Schedule-I was also said to have been partitioned with equal shares between the two. 8. Learned Trial Court on the basis of the rival pleadings formulated seven issues for consideration including issue No. V which is as follows :– "V. Was there any previous partition between the plaintiffs No. 1 & 2 and defendant No. 1 with regard to the suit property as alleged by the defendants?" 9. After the issues having been framed, the parties led their respective evidence both oral and documentary dealing, inter alia with issue No. V. On the basis of his analysis and appreciation of evidence, learned trial Court came to a finding that the property in Lot No. 8 of Schedule 1 was partitioned by metes and bounds between the parties in equal share. Learned trial Court however, held as regards other properties as given in Schedule-1, that those properties were not partitioned and accordingly agreed that the plaintiffs were entitled for half share in the properties described as Lot Nos. 1 to 7 and 9 in Schedule-1 of the plaint. 10. The defendants preferred appeal against the judgment and decree of learned trial Court. The plaintiffs also filed a cross-objection questioning the validity of the judgment and decree of the trial Court to the extent it had been held that Lot No.8 of Schedule-1 property was already partitioned between the parties. 11. Learned First Appellate Court by the impugned judgment dismissed the cross-objection of the plaintiffs-Respondents. It also dismissed the appeal preferred by the defendants after independently considering the evidence and materials on record. 11. Learned First Appellate Court by the impugned judgment dismissed the cross-objection of the plaintiffs-Respondents. It also dismissed the appeal preferred by the defendants after independently considering the evidence and materials on record. Learned First Appellate Court concurred with the finding of fact of the learned trial Court that Lot No. 8 of Schedule-1 property was already partitioned in 1981 by metes and bounds and that there are no partition of the properties described as Lot Nos. 1 to 7 and 9 to Shiv Nand Babu. 12. Learned counsel for the appellants, assailing the judgments of the Courts below has argued that once the trial Court and first appellate Court came to a finding that there was a partition between the parties with respect to one property, it could not have held that other properties as prescribed in Schedule-1 were not portioned among them. 13. Learned counsel has vehemently submitted that once courts came to a finding to effect that there was partition with respect to one of properties there would be a presumption that there was a partition of the entire property between the parties. He has placed reliance on a judgment of this Court reported in 2012(4) P.L.J.R. 769 , Smt. Bijay Laxmi Kumar & Ors. vs. Most. Shyama Devi and Ors. in order to contend that there would be presumption of complete partition of all the properties once it was found that there was partition with respect to one of the properties. 14. So far as the judgment of this Court reported in 2012(4) P.L.J.R. 769 (supra) is concerned, the same has no application in the present case. It is true that if there is finding or admission with respect to partition of one or more of the Hindu Joint Properties, the presumption of jointness with respect to the rest of the properties will not be there. However, the question as to whether there is 'partition with respect of other properties or there is jointness has to be decided on the basis of evidence adduced in course of trial without taking into account the presumption of jointness in the, Hindu Joint Family. 15. From the perusal of the judgments of the trial Court as well as the first appellate Court, I do not find that the Courts have applied the presumption of jointness in the Hindu Family in the present case with respect to other properties. 15. From the perusal of the judgments of the trial Court as well as the first appellate Court, I do not find that the Courts have applied the presumption of jointness in the Hindu Family in the present case with respect to other properties. The findings of the courts below are based on analysis and assessment of the evidence available on record. 16. Learned counsel for the appellant is also not able to point out that the findings are based on presumption of jointness in the Hindu Family. 17. On perusal of judgments of the Courts below, I find that the same are with reference to the evidence adduced in course of trial. Learned counsel for the appellants has not been, able to point out any perversity in the findings of the courts below. It is not the case of the appellants that the finding of the Courts below are contrary to evidence adduced in course of trial or without evidence. 18. In such view of the matter, I am of the view that the second appeal does not involve any substantial question of law for consideration in the present case and it does not merit admission. The Second Appeal is accordingly dismissed.