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2013 DIGILAW 576 (PAT)

Dhaneshwar Sah v. Dileshwar Sah

2013-05-01

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned counsel for the appellant. 2. The appellant was defendant before the trial court and is aggrieved by the judgement and decree dated 23-07-2010 and 05-08-2010 respectively, passed by learned Additional District Judge (F.T.C. III), Saharsa in Title Appeal No. 64 of 2007 whereby he allowed the appeal and set aside the judgement and decree dated 28-09-2007 and 06-10-2007 respectively, passed by learned Sub Judge-III, Saharsa in Title Suit No. 28/2004. 3. The plaintiffs are impleaded as respondents No.1 and 2 in the present appeal, who are husband and wife, whereas respondents Nos. 3 to 6 are sons of defendant No.1 (the appellant). 4. The respondents1 and 2 filed the suit for declaration of half share in the joint family property as described in schedule 1 of the plaint. As per the genealogical table, Chitharu Sah was the common ancestor, who had one son, Sumrit Sah. Sumrit Sah had two sons, Dhaneshwar Sah and Dileshwar Sah. Dhaneshwar Sah had four sons, Radheshyam Sah, Rajeshwar Sah, Ashok Sah and Binod Sah who have been impleaded as respondents Nos. 3 to 6 in the present appeal. 5. The defendants contested the suit by filing joint written statement disputing the very jointness in the family. They claimed that Sumrit Sah died leaving behind his sons Dhaneshwar Sah and Dileshwar Sah in the year 1961 itself. Dhaneshwar Sah and Dileshwar Sah separated, after the death of their father, in the year 1965. According to the defendants, joint property was partitioned between them and they came in possession over their share thereafter. The defendants further took plea that defendant No.1 purchased lands through sale deeds in the year 1969 and 1982 from his own income and that maternal uncle of Sumrit Sah also gifted some property to him. The specific case of the defendants was, as regards the purchase made in the year 1969, that one katha of land was purchased by Dhaneshwar Sah in the year 1969 after partition and the plaintiffs did not have any concern with the land purchased from his own income. It was further pleaded that the defendant No.1 purchased 2 katha and 3½ dhurs of land through sale deed in the year 1982 from Amola Devi. It was pleaded that rest two katha and 3½ dhurs was acquired in the family of plaintiffs and defendants by Mithu Sah. It was further pleaded that the defendant No.1 purchased 2 katha and 3½ dhurs of land through sale deed in the year 1982 from Amola Devi. It was pleaded that rest two katha and 3½ dhurs was acquired in the family of plaintiffs and defendants by Mithu Sah. It was, thus, contended that plaintiffs had no concern with the two katha and 3½ dhurs of land sold by Amola Devi. The main contention of defendants, in the written statement, was that one katha of land purchased in the year 1969 and 2 katha and 3½ dhurs in the year 1982 were out of personal income of Dhaneshwar Sah and that the plaintiffs have wrongly included such properties also in the schedule for the purpose of partition. 6. On the basis of pleadings, learned trial court framed five issues including issues Nos. iii and iv which read thus:– “(iii) Whether the suit property is joint family property and the plaintiff has unity of title & possession? (iv) Has there been any partition of joint family property?” 7. The parties led their evidence, on the issues so framed, both oral and documentary. Learned trial court, on the basis of evidence available on record, came to a finding that the properties purchased in the name of defendant No.1, Dhaneshwar Sah, were his self acquired properties and the plaintiffs were not entitled to any share in the suit land. Learned trial court came to the finding that there was no unity of title and possession between the parties and both the sons of Sumrit Sah were separate. 8. The defendants challenged the judgement and decree of the trial court by filing appeal vide Title Appeal No. 64/2007. Learned first appellate court formulated one point for consideration, i.e., “Whether the suit property is joint family property & the plaintiff has unity of title & possession & has there been any partition of joint family property”. 9. Learned first appellate court, after re-appraising the evidence on record, came to a finding that there was no partition of joint family property, as alleged by the defendants, and that the properties said to have been purchased in the name of Dhaneshwar Sah, defendant No.1, were joint family properties and, thus, liable for partition. 10. 9. Learned first appellate court, after re-appraising the evidence on record, came to a finding that there was no partition of joint family property, as alleged by the defendants, and that the properties said to have been purchased in the name of Dhaneshwar Sah, defendant No.1, were joint family properties and, thus, liable for partition. 10. Learned counsel for the appellant has vehemently submitted that learned first appellate court failed to take into account properly the evidence of the PWs themselves whose statements indicate that the parties were living separately and there was no jointness in the family. He submits that the findings of learned first appellate court are contrary to the evidence available on record and are, therefore, perverse. He submits that, in the facts and circumstances, the judgement of learned first appellate court, setting aside the findings of the trial court without meeting the reasoning assigned by the trial court, needs to be interfered with by this court in exercise of power under section 100 of the Code of Civil Procedure. 11. From the contents of the judgements of two courts below, it appears that it was specific case of the defendants, while opposing the relief for partition, that the partition in the family had already taken place immediately after the death of Sumrit Sah. According to defendants, Sumrit Sah died in the year 1961 and the partition took place in the year 1965. In such circumstances, the defendants made out a case that the properties purchased by Dhaneshwar Sah, defendant No.1, after 1965 were properties self acquired by him through his own income and could in no way subject matter of partition. 12. It appears that certified copy of sale deed dated 29-10-1971 executed by Sumrit Sah in favour of Ram Kishun Sah was brought on record in course of trial and was exhibited as exhibit-3/c. 13. Dealing with exhibit-3/c and other material, learned trial court came to a finding that the stand of the defendants that Sumrit Sah died in the year 1961 itself could not be accepted as till 1971 he was alive. 14. Learned first appellate court, on such basis, particularly, the stand of the defendants, that partition took place after death of Sumrit Sah, came to a finding that at least there was no partition till the death of Sumrit Sah. 14. Learned first appellate court, on such basis, particularly, the stand of the defendants, that partition took place after death of Sumrit Sah, came to a finding that at least there was no partition till the death of Sumrit Sah. Learned first appellate court, in such view of the matter and taking into account other evidence available on record, came to a finding that the defendants failed to prove the partition in the family as alleged in the statement. 15. It can be noticed that, according to defendants, Sumrit Sah died in the year 1969 and partition took place in the year 1965 but according to plaintiff, Sumrit Sah was alive till 1989-1990. 16. Taking into account the rival contentions of the parties, learned first appellate court came to a finding that the defendants failed to prove the partition as there is presumption of jointness in the Hindu family. Learned first appellate court also took into account the fact that it was never case of the defendants that partition had taken place during the lifetime of Sumrit Sah. 17. Further, learned first appellate court, on appraisal of evidence, also came to the finding that the land purchased by the defendant, Dhaneshwar Sah, was from joint family income as joint family properties in which both the plaintiff and defendant No.1 had half share each. 18. From the judgement of learned first appellate court, it appears that before reaching to such conclusion, it took into account various evidence, documentary and oral, and on basis of such appraisal, learned first appellate court set aside the order of learned trial court. Learned first appellate court opined that defendant No.1 failed to prove that the two plots purchased by him were his self acquired properties and did not belong to joint family fund. 19. I find that judgement of learned first appellate court is based on its own independent assessment and scrutiny of the evidence on record. The judgement cannot be said to be perverse being contrary to or without any evidence. 20. It is well settled law that first appellate court is the final court of fact and this court, in exercise of power under section 100 of the Code of Civil Procedure, can interfere only when such finding appear to be perverse. I find no perversity in the judgement of learned first appellate court. This second appeal is, accordingly, dismissed.