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2013 DIGILAW 703 (PAT)

Parwati Devi v. Chandradip Rai

2013-06-26

MUNGESHWAR SAHOO

body2013
CAV JUDGMENT Mungeshwar Sahoo, J. 1. The defendants have filed this First Appeal against the judgment and decree dated 14.06.1994 passed by the learned Subordinate Judge IV, Patna in Title Suit No.63 of 1972. 2. The original plaintiff, Jago Kuer, widow of Mahabir Rai had filed the aforesaid suit claiming her 2 Annas 8 Paise share in the properties described in Schedule I to VII. The plaintiffs claimed that Chain was the common ancestor who had 3 sons namely Judagi, Kokil and Mahabir. Judagi died in First World War. Mahabir died in the year 1959 and thereafter Kokil died in the same year i.e. in 1959. The daughters of plaintiff namely, Deokali Kuer and Ramkali Kuer were made defendant nos.8 and 9. On the death of original plaintiff, Jago Kuer in the year 1984, the two grandsons i.e. 2 sons of Ramkali were substituted as plaintiff nos.1 and 2. Ramkali, the defendant no.9 was transposed as plaintiff no.3. The original plaintiff alleged that the parties are members of joint family. Judagi died in jointness. Kokil died in 1959 issueless in jointness with his brother, Mahabir and nephew, Deo Narain, son of Judagi. Thereafter, Mahabir died in the year 1959 leaving behind the plaintiff and two daughters, Deokali and Ramkali. Deo Narain died in the year 1962 in jointness. Chain, the common ancestor was the karta during his lifetime and on his death, Kokil became the karta and on his death, Mahabir became the karta and on the death of Mahabir, Deo Narain was the karta of the joint family. On the death of Deo Narain, the defendant no.1 is the karta. The joint family possessed large ancestral property and from the income of that joint family property, agricultural lands at various places have been acquired. The house at Chitragupt Nagar was also acquired out of the income of the joint family. 3. The genealogy table has been given by the plaintiffs which is admitted. The plaintiff claimed 2 Annas 8 Paise share alleging that on the death of Kokil, the joint family property devolved on the branch of Judagi and Mahabir half and half. Mahabir died in 1959, therefore, the half share devolved on his widow, Jago Kuer, daughter, Deokali Kuer and Ramkali Kuer each having 2 Annas 8 Paise share. The plaintiff claimed 2 Annas 8 Paise share alleging that on the death of Kokil, the joint family property devolved on the branch of Judagi and Mahabir half and half. Mahabir died in 1959, therefore, the half share devolved on his widow, Jago Kuer, daughter, Deokali Kuer and Ramkali Kuer each having 2 Annas 8 Paise share. On the death of Jago Kuer, the substituted plaintiff and transposed plaintiff i.e. Ramkali, Chandradip and Ramanuj claimed 5 Annas 4 Paise alleging that Jago Kuer had executed a Will in their favour and they have filed a probate case. 4. Various written statements were filed by the defendants. The intervener defendants being daughters of Chain namely, Panchola Devi, defendant no.13 and Nanki Devi, defendant no.14 filed a supporting written statement. The main contesting defendants are defendant nos.1 to 3. The defendant nos.13 and 14 being the daughters of Chain intervened and were made defendants. The defendant nos.11 and 12 also intervened and were made defendants in the suit. The other defendant nos.4 and 5 also filed separate written statement. 5. The main defence of the defendant nos.1 to 3-appellants is that the Schedule I property mentioned in written statement are self-acquired properties of Kokil Rai and it is not joint family property. These defendants-appellants also alleged that Kokil died on 15.11.1959 after the death of Mahabir who died on 26.04.1959. These defendants-appellants further claimed that at the time of his death, Kokil gifted his self-acquired property to the defendant nos.1 and 2 and put them in possession thereon. The gift was acted upon and the defendants-appellants have also transferred some portion of the properties. Alternatively, they claimed that they have acquired title by adverse possession over the property of Kokil. According to these defendants, they set up a plea that in the year 1954, Mahabir Rai had already separated taking his 1/3rd share and Kokil and Deo Narain remained joint on other land. 6. The intervener defendant nos.13 and 14 who are the daughters of Chain filed a written statement supporting the case of defendant nos.1 to 3. They only alleged that on the death of Kokil who died after Mahabir, his properties came in joint possession of the defendant nos.1 to 3 and these interveners-defendants. They also prayed that their share may be carved out. 7. They only alleged that on the death of Kokil who died after Mahabir, his properties came in joint possession of the defendant nos.1 to 3 and these interveners-defendants. They also prayed that their share may be carved out. 7. The intervener-defendant nos.11 and 12 filed a written statement claiming certain portion of suit plots i.e. plot no.822 of khata no.211, plot no.289 of khata no.75 and plot no.811 of khata no.204. 8. The defendant no.8, Deokali Devi, one of the daughters of Jago Kuer filed written statement separately claiming that after the death of Mahabir Rai in the year 1959, she came in possession jointly. She denied the execution of Will by Jago Kuer in favour of the plaintiffs dated 27.01.1982. She alleged that Jago Kuer never executed the Will which is forged and fabricated document. 9. On the basis of the aforesaid pleadings of the parties, the learned trial court framed the following issues: I. Is the suit as framed maintainable? II. Is there any valid cause of action for the suit? III. Is the suit barred by law of limitation and adverse possession? IV. Is the suit barred under the application of principles of estoppel, waiver and acquiescence? V. Is the suit barred under section 34 of the Specific Relief Act? VI. Is the suit under valued and bad for unsufficient agreement of court fee? VII. Is there any unity of title and unity of possession concerning the suit land among the parties? VIII. Who, whether Kokil or Mahabir did die first? IX. Whether the intervener-defendants (11(a) and 11(b) and 12 to 12/d) have any right, title and interest in the lands claimed by them? X. Are the plaintiffs entitled to share in the suit land as claimed by them. If so, in respect to what properties and to how much share in the suit lands? XI. Is the lands of 1st schedule of the written-statements of defendant no.1 to 3 and Panchola Devi and Nanki self acquired lands of Kokil Rai? If so then who will be entitled to these lands? If not where will got these lands and in whose share? XII. Is lot no.3 and lot no.4 of schedule II of the plaint self acquired properties of defendants no.1 and2? Are these lands jointly acquired properties of out of joint family fund of original plaintiff Mostt. Jago Kuer(deceased) and defendant no.1 to 9? XIII. If not where will got these lands and in whose share? XII. Is lot no.3 and lot no.4 of schedule II of the plaint self acquired properties of defendants no.1 and2? Are these lands jointly acquired properties of out of joint family fund of original plaintiff Mostt. Jago Kuer(deceased) and defendant no.1 to 9? XIII. Is this a suit for declaration of title in the garb of partition? XIV. To what other relief or reliefs if any, the plaintiffs are entitled to? 10. After trial, the Lower Court considering the evidences and materials available on record while deciding issue no.8 recorded a finding that Mahabir died first and Kokil died subsequently and, therefore, issue no.8 was decided against the plaintiff. The Lower Court also found that the property detailed in Schedule I to the written statement of the defendant nos.1 to 3 is the self-acquired property of Kokil and issue no.11 was accordingly decided. The Lower Court also found that there was unity of title and unity of possession with regard to the rest of the properties and, therefore, issue no.7 was decided in favour of the plaintiffs. The Lower Court also recorded the finding that the lot nos.3 and 4 of Schedule II are the self-acquired property of defendant nos.1 and 2 and plaintiffs have no interest and not entitled over the same. Regarding the case of intervener-defendant nos.11 and 12, the Lower Court recorded the finding that the interveners-defendants succeeded to prove their claim and thus decided issue no.9 in favour of the interveners-defendants. While deciding issue no.10 at paragraph 44, the Lower Court held that the property of Kokil will go to sisters of Kokil namely, Nanki Devi, defendant no.14 being the class II heirs as given in Schedule. The Lower Court held that the plaintiff will be entitled to their share upto 5 Anna 4 Paise out of 8 Annas share of Mahabir in Schedule I of the plaint if the probate is granted in their favour. Deokali Kuer, defendant no.8 will be entitled to 2 Annas 8 Paise share in the property of Mahabir. 11. The learned senior counsel, Mr. Deokali Kuer, defendant no.8 will be entitled to 2 Annas 8 Paise share in the property of Mahabir. 11. The learned senior counsel, Mr. S.K.Verma appearing on behalf of the appellants submitted that the original plaintiff, Jago Kuer filed the suit for partition claiming her share to the extent of 2 Annas 8 Paise out of half share alleging that first Kokil died, therefore, the share of Kokil devolved on Mahabir and Deo Narain. On the contrary, the defendants-appellants pleaded that Mahabir died prior to the death of Kokil. After considering the evidences, the Lower Court recorded a finding that Kokil died on 15.11.1959 whereas Mahabir died on 26.04.1959 i.e. prior to Kokil. In such circumstances, the Lower Court could not have granted half share i.e. 8 Annas to the branch of Mahabir because Mahabir was entitled to only 1/3rd share and out of that 1/3rd share, plaintiff had only 1/3rd share because Mahabir died leaving behind a widow, the plaintiff and his two daughters, Deokali and Ramkali. According to the learned counsel, therefore, the trial court has gravely erred holding that 8 Annas share will go to the branch of Mahabir. 12. So far the finding of the court below that the properties mentioned in Schedule I of the written statement is the self-acquired property of Kokil cannot be disturbed and likewise, the finding of the trial court that lot no.3 and 4 of Schedule II is self-acquired property of defendant nos.2 and 3 is concerned, those are findings recorded by the court below on appreciation of evidence and on this finding, the plaintiff’s suit to that extent was dismissed. In other words, plaintiff was granted only a part decree. This part of the decree dismissing the plaintiff’s suit is concerned, was challenged by the plaintiff by filing First Appeal No.603 of 1994 before the High Court which was dismissed for default and still today the same has not been restored. In such circumstances, that part of the decree became final. 13. The learned counsel for the appellants further submitted that the suit was filed for partition of the property of Chain. In such circumstances, that part of the decree became final. 13. The learned counsel for the appellants further submitted that the suit was filed for partition of the property of Chain. Once it was held that the property of Schedule I to the written statement is the self-acquired property of Kokil, the court below should have excluded the property from partition but the court below granted a decree of title in favour of the intervener-defendant nos.13 and 14 although, the said interveners-defendants never filed any counter-claim or they prayed for declaration of title and recovery of possession. While granting the declaration in favour of interveners-defendants against the defendants-appellants, the trial court failed to appreciate the legal position that there could not have any counter-claim filed by the intervener-defendant in favour of the defendant nos.1 to 3 and moreover, while granting the decree in favour of the interveners, the trial court has not considered the case of the defendants-appellants regarding ouster and adverse possession. According to the learned counsel, in I.A. No.8719 of 2011, the intervener-defendant no.14 has categorically admitted the fact of possession of the appellant over the property of Kokil. According to the learned counsel, this is the dispute between the defendants inter se i.e. defendants-appellants in the one hand and the interveners-defendants on the other hand and this dispute between these defendants inter se is regarding title and possession of the property of Kokil whereas the original suit was filed by the plaintiff for partition only regarding the property. The learned counsel further submitted that on recording a finding that the property was the self-acquired property of Kokil, the court was not required to further decide the dispute regarding the title to the property inter se between the defendants. The learned counsel in support of his contention relied upon various decision of the Hon’ble Supreme Court which will be considered later on. It may be mentioned here that all the parties including the appellants have filed their respective written arguments giving in great details about their cases and the points of arguments advanced. In the written argument, the references of the decisions have also been mentioned. It may be mentioned here that all the parties including the appellants have filed their respective written arguments giving in great details about their cases and the points of arguments advanced. In the written argument, the references of the decisions have also been mentioned. According to the learned counsel, the finding of the Lower Court that on the death of Kokil, his property will go to his sister is totally unnecessary or uncalled for and without jurisdiction because in simple suit for partition without payment of court fee, the title cannot be granted. The question can only be decided in properly constituted title suit. The question of succeeding the property of Kokil in favour of the sisters would only arise had Kokil died without transacting those properties. Here, the appellants clearly averred that Kokil prior to his death handed over the possession of the property to the appellants in 1959 and since then, the defendants-appellants are continuing in possession adverse to the interveners-defendants but without deciding this question raised by the appellant which is complicated question of title and possession, the Lower Court unwarrantedly held that on the death of Kokil, the property will go to the sisters. 14. Regarding cross-objection filed by the heirs of Deokali Kuer, the learned counsel submitted that the said cross-objection is not maintainable because Deokali Kuer along with her two daughters Smt. Leelawati and Saroj Devi have filed F.A. No.604 of 1994 which has been dismissed for default and the matter is pending before the Hon’ble Supreme Court in S.L.P.(c) No.18220-18221 of 2007. Therefore, in view of the provision as contained in Order 41 Rule 22 C.P.C., the cross-objection cannot be maintained. 15. So far the claim of defendant nos.11 and 12-respondent herein with respect to 3 plots i.e. 822, 289, 811 is concerned, the learned counsel submitted in two ways. Firstly, regarding plot no.822 of khata no.211, the common case of the plaintiffs and the defendants-appellants is that the property is the property of Chain, therefore, it is partible. According to the learned counsel, the said property is recorded in C.S. Khatiyan, Exhibit “R” in the name of Chain. The intervener-defendant nos.11 and 12 claimed half of 1 acre 31 decimals out of the said land on various grounds that the property originally belonged to Chamru Mahto who died issueless. According to the learned counsel, the said property is recorded in C.S. Khatiyan, Exhibit “R” in the name of Chain. The intervener-defendant nos.11 and 12 claimed half of 1 acre 31 decimals out of the said land on various grounds that the property originally belonged to Chamru Mahto who died issueless. Thereafter, it was partitioned and half property was given in the share of Gulten and half was given in the share of Chain. The learned counsel further submitted that this is again a dispute between the parties and a third party regarding title. The intervener-defendant never filed counter-claim for declaration of title and never paid any ad valorem court fee but the court below declared the title with respect to half of this plot in a simple suit for partition. Regarding the two other plots are concerned also, according to the learned counsel, the complicated question of title between the parties to the suit and the interveners who are admittedly not the descendant of Chain could not have been decided by the trial court. Since the interveners-defendants are not the descendants of Chain Mahto and they are not claiming under him, their claim is independent claim challenging the title of Chain and the descendants of Chain which could not have been decided in simple suit for partition without there being any counter-claim and payment of ad valorem court fee. It is for them to establish their title convincingly. The documentary evidences produced by them are not reliable documents for proving their title. So far the other two plots are concerned, according to the learned counsel, the defence of the intervener is that there was partition between six branches i.e. heirs of Baiju Mahto and in that partition, the property was allotted in the branch of the interveners-defendants, the same could not have been decided in absence of the other branches of Baiju Mahto because it will affect the other branches. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside. 16. The learned counsel appearing on behalf of the respondent no.8 who was intervener-defendant submitted that subsequently by amendment, the lands of the intervener was included in the partition suit. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside. 16. The learned counsel appearing on behalf of the respondent no.8 who was intervener-defendant submitted that subsequently by amendment, the lands of the intervener was included in the partition suit. The original area of 13 decimals of plot no.289 was enhanced to 30 decimals, area of plot no.811 was enhanced from 18.75 decimals to 37 ½ decimals and area of plot no.822 was enhanced from 65 ½ decimals to 1 acre 31 decimals. Therefore, when the intervener’s land was added by amendment, the intervener had no option but to intervene and he has been able to prove his title by adducing evidences oral as well as documentary. The Lower Court has rightly recorded the finding that the intervener-defendant has the right, title over the property claimed by him. The learned counsel further submitted that Chamru Mahto died issueless and the nearest agnates i.e. successors are the descendants of his brother, Baiju Mahto. Accordingly, all the persons were recorded in the land of Chamru one share each including Chain Mahto. The defendant-intervener represents Gulten Mahto. On the death of Chamru Mahto, the property was divided among six heirs who were recorded in the khatiyan and as a result of this partition, Gulten was allotted 13 decimals in plot no.289, 18 ¾ decimals in plot no.811, total 31 ¾ decimals. In the additional written statement, details of the property allotted have been given. According to the intervener-defendant, Ishwar and Faujdar Mahto gave 34 ¾ decimals of survey plot no.811 in exchange. The details of the points raised by the learned counsels have been mentioned in the written argument filed by him. The main submission is that in partition, the property allotted in favour of the interveners-defendants in the said 3 plots were included in the partition suit. The learned counsel placed the issue no.9 decided by the court below concerning these 3 plots and submitted that the Lower Court has rightly recorded the finding that the interveners-defendants proved their title. On these grounds, the learned counsel submitted that the appeal is liable to be dismissed. 17. The learned counsel appearing on behalf of the respondent nos.4 (a) and 4(b) submitted that on the death of Mahabir in the year 1959, Deokali Kuer came in joint possession. On these grounds, the learned counsel submitted that the appeal is liable to be dismissed. 17. The learned counsel appearing on behalf of the respondent nos.4 (a) and 4(b) submitted that on the death of Mahabir in the year 1959, Deokali Kuer came in joint possession. She had denied execution of any Will by Jago Kuer in favour of transposed plaintiffs. The Will is forged and fabricated and, therefore, the plaintiff had not derived any interest. The learned counsel further submitted that the trial court has wrongly recorded the finding that the plaintiff is entitled to the share of Jago in Schedule I of the plaint if the probate is granted in their favour. According to the learned counsel, the Lower Court has wrongly recorded that the properties standing in the name of Kokil are the self-acquired property of Kokil and the property mentioned in lot no.3 and 4 are the self-acquired property of defendant nos.1 and 2. All these properties were purchased out of the joint family income. The learned counsel further submitted that the High Court has wrongly dismissed the First Appeal for non-compliance of the peremptory order. Therefore, the matter is pending before the Hon’ble Supreme Court. On receipt of the appeal notice, the respondent nos.4(a) and 4(b) have filed the cross-objection. Since the First Appeal has wrongly been dismissed for default, the cross-objection is maintainable. So far this cross-objection is concerned, it is directed against the respondents. 18. The learned counsel appearing on behalf of the intervener-defendant no.13 submitted that since the Lower Court has held that the property mentioned in Schedule I of the written statement is the self-acquired property of Kokil, therefore, according to law, on the death of Kokil, the sisters inherited the same and admittedly, the intervener-defendant is the sister of Kokil. Therefore, the court below has rightly recorded that on the death of Kokil, the property will go to his sisters in view of the provision of Hindu Succession Act. There is no defect in this finding. According to the learned counsel, on the death of Kokil, the property will not be kept in abeyance rather it will be succeeded by the rightful heirs. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. The other respondents who are purchasers from the interveners-defendants have supported the argument of the learned counsel. 19. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. The other respondents who are purchasers from the interveners-defendants have supported the argument of the learned counsel. 19. The learned counsel for the plaintiff-respondent submitted that there is no illegality in the impugned judgment and the plaintiff-respondent can assail the finding to the effect that Mahabir died earlier than Kokil. According to the learned counsel, the Lower Court has not correctly appreciated the evidence and recorded the wrong finding. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. 20. In view of the above rival contentions of the parties, the following points arise for consideration in this First Appeal: I. Whether Mahabir died prior to Kokil as alleged by the defendant or he died after the death of Kokil as alleged by the plaintiff? II. Whether plaintiffs are entitled to half share in the joint family property as granted by the court below even though, the court below recorded a finding that Kokil died after Mahabir? III. Whether the cross-objection filed by respondent nos.4(a) and 4(b) is maintainable? IV. Whether the title of intervener-defendant nos.11 and 12 with regard to 3 plots i.e. plot no.822, 289 and 811 and the claim of interveners-defendants i.e. the sisters of Kokil could have been decided in this present suit which is simply for partition and whether the impugned judgment and decree are sustainable in the eye of law? Point No.I 21. According to the original plaintiff and transposed plaintiffs, Kokil died earlier and the property was succeeded by defendant no.1 and Mahabir. According to them also, Kokil died in the year 1959 and Mahabir also died in the year 1959. On the contrary, the defendants-appellants specifically gave the date of death of Mahabir as 26.04.1959 and date of death of Kokil as 15.11.1959. In support of their respective cases, the parties have adduced evidences. So far the plaintiff’s evidences are concerned, they have only adduced oral evidences and the witnesses examined on their behalf have stated that Mahabir died after the death of Kokil. No documents have been produced. However, on behalf of the defendants, Exhibit X, Exhibit N, Exhibit B/1, Exhibit N/1, Exhibit K and Exhibit K/2 have been produced. So far the plaintiff’s evidences are concerned, they have only adduced oral evidences and the witnesses examined on their behalf have stated that Mahabir died after the death of Kokil. No documents have been produced. However, on behalf of the defendants, Exhibit X, Exhibit N, Exhibit B/1, Exhibit N/1, Exhibit K and Exhibit K/2 have been produced. From perusal of Exhibit X, it appears that a substitution application dated 21.07.1959 was filed in S.A. No.265 of 1959. In that application, it has been categorically mentioned that Mahabir died on 26.04.1959. Exhibit N is the memo of appeal of the said Second Appeal. From perusal of the said memo of appeal, it appears that Mahabir was substituted by terms of order dated 11.09.1959 and at that time, Kokil was alive. From perusal of the compromise application, Exhibit B/1, the memo of appeal of M.A. No.37 of 1959, Exhibit N/1 also shows that Mahabir was substituted on 25.05.1959 when Kokil was alive. It may be mentioned here that Kokil and Mahabir both were appellants in the said Misc. Appeal No.37 of 1959. Exhibit K is the death certificate which shows that Mahabir died on 26.04.1959 and Exhibit K/2 is the certified copy of cremation register of Gulabi Ghat which shows that Kokil died on 15.11.1959. In view of these reliable documentary evidences, in my opinion, it is not necessary to refer the oral evidence on this question. As stated above, the witnesses of the plaintiff have only stated that Mahabir died subsequent to the death of Kokil. No explanation has been furnished by the plaintiff-respondent regarding these overwhelming documentary evidences. It is settled law that when reliable documentary evidences are available, the oral evidences will never override the same. In view of the above discussion of the documentary evidences which are in fact, admitted documents, I find that Kokil died on 15.11.1959 whereas Mahabir died on 26.04.1959. The point no.1 thus is decided in favour of the defendants-appellants. The plaintiffs-respondents failed to prove that Kokil died prior to Mahabir. Point no.II 22. It is admitted fact that chain had three sons namely Judagi, Kokil and Mahabir. In such circumstances, on the death of Chain in the year 1945(admitted), the property will devolved to the extent of 1/3rd share in the branch of Judagi, Kokil and Mahabir. The plaintiffs-respondents failed to prove that Kokil died prior to Mahabir. Point no.II 22. It is admitted fact that chain had three sons namely Judagi, Kokil and Mahabir. In such circumstances, on the death of Chain in the year 1945(admitted), the property will devolved to the extent of 1/3rd share in the branch of Judagi, Kokil and Mahabir. Admittedly, Judagi died in the First World War leaving behind defendant no.1, Deo Narain and another son, Mehin who died in 1930 leaving behind Dhanpati Kuer. Therefore, 1/3rd share will go to Deo Narain, 1/3rd will go to Kokil and 1/3rd share will go to widow and daughters of Mahabir as Mahabir died in April, 1959 after coming into force of the Hindu Succession Act. However, the original plaintiff, Jago Kuer has filed the suit claiming 2 Annas 8 Paise share in the share of Mahabir. On substitution and transposition, the plaintiff’s claimed 5 Annas 4 Paise and alleged that Deokali Kuer will get only 2 Annas 8 Paise meaning thereby, according to them, Mahabir was entitled for 8 Annas share i.e. half share in the entire joint family property. The court below recorded the finding that Mahabir died prior to Kokil but then did not consider this aspect of the matter that Mahabir had only 1/3rd share in the joint family property and granted the decree in favour of the plaintiff to the extent of 5 Annas 4 Paise share and further held that Deokali Kuer will be entitled to 2 Annas 8 Paise only. In my opinion, this finding of the court below is legally incorrect. Since Kokil died subsequent to the death of Mahabir, the property of Chain will be divided in three part. One part i.e. 1/3rd share will go to Mahabir. Out of that 5 Annas 4 Paise share, 1/3rd share will go to Jago Kuer, 1/3rd share will go to Deokali and 1/3rd share will go to Ramkali. If Jago had executed Will with respect to her and the matter is pending before the probate court, the share of Jago will be governed by the decision of the probate court. In such circumstances, the finding of the Lower Court granting the decree to the extent of 8 Anna share in favour of branch of Mahabir is not legal and is liable to be set aside. 23. In such circumstances, the finding of the Lower Court granting the decree to the extent of 8 Anna share in favour of branch of Mahabir is not legal and is liable to be set aside. 23. The other aspect of the matter is that on the death of Kokil, his 1/3rd share in the joint family property will go to the surviving coparcener i.e. defendant no.1 who was the sole surviving coparcener. The plaintiff i.e. widow of Mahabir and the two daughters being the widow and daughters are not coparcener, therefore, the undivided 1/3rd share of Kokil will never devolved on them. Therefore, so far the undivided share of Kokil in joint family property will go by survivorship in favour of the defendants-appellants i.e. branch of Judagi by virtue of rule of survivorship. Therefore, the branch of Judagi will get 2/3rd share in the coparcenery joint family property i.e. 1/3rd share as coparcener in their own right and 1/3rd share of Kokil by virtue of survivorship. 24. It is submitted on behalf of the interveners-respondents relying upon a decision of the Apex Court reported in AIR 2012 Supreme Court 169 and submitted that the daughters are entitled to share of the property of Chain in view of the amendment in Section 6 of the Hindu Succession Act in the year 2005. So far this submission is concerned, it may be mentioned here that two daughters namely Panchola who was the intervener-defendant no.13 died in 1984 and the intervener-defendant no.14, Nanki died in 1994. The amendment in the Hindu Succession Act, 2005 is not retrospective. In such circumstances, when the amendment in the Hindu Succession Act came into force on 09.09.2005, the daughters were not alive. In such circumstances, there is no question of treating them as coparcener arises. Secondly, on the death of Kokil on 15.11.1959, his undivided 1/3rd share devolved by rule of survivorship immediately in the year 1959 itself. Therefore, the right, title vested in defendant, Deo Narain. The subsequent amendment of the Hindu Succession Act will not divest the vested right. Moreover, subsequent amendment will never confer the status of coparcenery to the two daughters of Chain retrospectively. Therefore, the right, title vested in defendant, Deo Narain. The subsequent amendment of the Hindu Succession Act will not divest the vested right. Moreover, subsequent amendment will never confer the status of coparcenery to the two daughters of Chain retrospectively. In view of my above discussion, this point no.II is decided in favour of the defendants-appellants and it is held that the branch of Mahabir jointly are entitled to only 5 Annas 4 Paise share in the undivided joint family property. The judgment and decree of the Lower Court on this point is thus, modified. Point No.III 25. Order 41 Rule 22(1) of the C.P.C. reads as follows: “(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.” 26. In view of the above provision, the respondent nos.4(a) and 4(b) could have filed cross-objection to that part of the decree which they could have taken by way of appeal. Here, it may be mentioned that in fact, the said cross-objectors along with their mother, Deokali Kuer had filed First Appeal No.604 of 1994 against that part of the decree which now they are challenging by filing cross-objection. The said First Appeal was dismissed on 19.01.2005 for non-compliance of peremptory order. The MJC filed by the cross-objectors was allowed and First Appeal was restored. Again, for non-compliance of the order, the First Appeal was dismissed. Thereafter, MJC No.1804 of 2005 was filed which was dismissed on 16.01.2006. A Civil Review No.42 of 2006 was filed for modifying the order which was again dismissed on 21.03.2007. The cross-objectors have now filed S.L.P.(c) No.18220-18221 of 2007 before the Hon’ble Supreme Court which is still pending. In such circumstances, the cross-objectors cannot be allowed to pursue two remedies for the same relief. A Civil Review No.42 of 2006 was filed for modifying the order which was again dismissed on 21.03.2007. The cross-objectors have now filed S.L.P.(c) No.18220-18221 of 2007 before the Hon’ble Supreme Court which is still pending. In such circumstances, the cross-objectors cannot be allowed to pursue two remedies for the same relief. They have already filed First Appeal, therefore, the cross-objection itself is not maintainable. The learned counsel for the cross-objectors submitted that wrongly the First Appeal was dismissed and the MJC application was also dismissed. So far this submission is concerned, the matter will be considered by the Hon’ble Supreme Court but that will not a ground for maintaining cross-objection in this First Appeal. I, therefore, find that the cross-objection filed by the respondent nos.4(a) and 4(b) is not maintainable. 27. The second aspect of the matter is Deokali Kuer was defendant no.8, respondent no.4 herein. The cross-objection is directed against the plaintiff-respondent and not against the appellant. Moreover, the cross-objection has been filed by the defendant in the appeal filed by the defendant. In my opinion, therefore, the cross-objection filed by the respondent nos.4(a) and 4(b) are not maintainable. Accordingly, the cross-objection is dismissed as not maintainable. Point No.IV 28. This point covers two types of claims made by the interveners-defendants: (a) The claim made by intervener-defendant nos.11 and 12. One of the interveners-defendants is respondent no.8. (b) The second claim is made by the defendant nos.13 and 14 with regard to the self-acquired property of Kokil. 29. Now let us consider first the claim made by the intervener-defendant nos.11 and 12 i.e. respondent no.8. According to them, originally the plaintiff did not include the portion of the land of the interveners in the plaint. However, subsequently, amendment application was filed which was allowed and thereafter the areas of these 3 plots were increased thereby the property of the interveners were included in the plaint. According to the plaintiff, all these properties are of Chain Mahto and the same are liable to be partitioned. 30. The learned counsel for the appellants submitted that the interveners-defendants never filed any counter-claim for declaration of their title. Therefore, the court below could not have decided the complicated question of title between the parties to the suit and the interveners-defendants because the parties to the suit are descendants of Chain Mahto whereas the interveners-defendants are not the descendants of Chain Mahto. Therefore, the court below could not have decided the complicated question of title between the parties to the suit and the interveners-defendants because the parties to the suit are descendants of Chain Mahto whereas the interveners-defendants are not the descendants of Chain Mahto. In such circumstances, once it is held that the property is not of Chain Mahto, it should have been excluded from partition. Had the interveners-defendants filed a counter-claim then only the court below could have declared their title. Further, the learned counsel submitted that the suit was filed for partition of the property of Chain and plot no.822 of khata no.211 is recorded exclusively in the name of Chain Mahto having an area of 1 acre 31 decimals. The learned counsel for the interveners-defendants submitted that it was Bakast land of ex-landlord. In batai, the said land was given to Chain Mahto and Gulten. Therefore, it was not the exclusive property of Chain. In respect of their case, both the parties have adduced evidences. The defendants-appellants have produced Exhibit R which is cadastral survey khatiyan wherein this plot measuring 1 acre 31 decimals has been exclusively recorded in the name of Chain Mahto. It is settled principles of law that there is presumption of correctness of the entry made in the cadastral survey khatiyan. Therefore, the presumption of possession is in favour of the descendants of Chain Mahto. It may be mentioned here that from perusal of paragraph 40 and 41 of the judgment of the Lower Court, it appears that while recording a finding of title of the intervener-defendant-respondent, the Lower Court has only considered various documents of the interveners but has not considered this Exhibit R, the cadastral survey record of right. Exhibit U-1 is the suit register of rent suit No.1534 of 1894 which is only against Chain Mahto. Again, it is mentioned here that the interveners-defendants are not claiming through Chain Mahto. They are the heirs of Chaitu Mahto. Exhibit U-1/1 is suit register of rent suit no.3127 of 1941. The judgment of this rent suit is Exhibit P/2. From perusal of this judgment, it appears that Chaitu was original defendant who was claiming 65 ½ decimals out of 1 acre 31 decimals. Therefore, Chain Mahto was added as intervener-defendant in that suit. Exhibit U-1/1 is suit register of rent suit no.3127 of 1941. The judgment of this rent suit is Exhibit P/2. From perusal of this judgment, it appears that Chaitu was original defendant who was claiming 65 ½ decimals out of 1 acre 31 decimals. Therefore, Chain Mahto was added as intervener-defendant in that suit. In the judgment, it is mentioned that this plot is recorded in the name of Chain Mahto whereas Chaitu Mahto is claiming possession over 65 ½ decimals which could not be substantiated by Chaitu Mahto by evidence. In such circumstances, the question of title was left upon for future regarding 65 ½ decimals. From perusal of the said decision, again, it reveals that the court found no evidence of possession of Chaitu over 65 ½ decimals. In view of the above decision i.e. Exhibit P/2, Chaitu Mahto could have brought a regular suit for declaration of title immediately after passing the judgment on 17.04.1942 but still today, they did not take any action. In the present suit also, they did not file any counter-claim for declaration of their title nor they have paid ad valorem court fee on the market value of the said land. The relief which Chaitu Mahto was claiming i.e. title and even possession in the year 1942 was negatived by Exhibit P/2 holding that there is no evidence of title and possession of Chaitu Mahto. The interveners-defendants are claiming title through Chaitu Mahto. When in the judgment, it was observed that Chaitu has no title or possession, the cause of action arose to Chaitu Mahto on that date but still today, no steps have been taken. Their only defence is that it was given in batai half and half and Chaitu was in possession of that half portion but without considering all these exhibits in their right perspective, the trial court held that the defendants have been able to prove their title although, there is no counter-claim or no payment of court fee. 31. The interveners-defendants relied upon Exhibit N-1, the road cess return. In my opinion, only on the basis of this road cess return, finding of title cannot be granted. 31. The interveners-defendants relied upon Exhibit N-1, the road cess return. In my opinion, only on the basis of this road cess return, finding of title cannot be granted. Exhibit I-1 which is report of the Commissioner in title suit No.98 of 1956 is concerned, from perusal of the same, it appears that in that title suit, Chain Mahto was not party and suit plot no.822 was not the subject matter of the suit. In my opinion, therefore, this document is also not conclusive proof of title of the said interveners-defendants. It may be mentioned here that the said suit was filed by Dhan Kuer against Chaitu Mahto only. In that case, the genuineness of the surrender deed dated 08.02.1942, Exhibit G-1 was under consideration. This document was executed by Dhan Kuer. Since Chain Mahto is not party to the said suit and this plot was not included, it is not helpful to the interveners-defendants. 32. Regarding the two other plots i.e. plot no.289 and plot no.811, according to the interveners-defendants, the said plots belonged to one Chamru Mahto. When he died issueless, it was divided between six branches i.e. heirs of Baiju Mahto. It may be mentioned here that out of the six heirs, Chain Mahto is one whereas the intervener-defendant represents Gulten branch. The branch of other four brothers are not parties in the suit. The claim of the intervener-defendant nos.11 and 12 is that they got the plots in partition between six recorded tenants after death of Chamru. So far this claim is concerned, except the statements, no reliable evidence has been brought and moreover, in absence of the other four branches, how can this question be decided in this suit because it will affect the other branches who are not party. If the claim of the interveners-defendants is decided then it will amount to decide a partition suit between the six branches in absence of four branches. In such circumstances, in my opinion, in absence of the four branches, no finding can be recorded that there was partition between six branches and this property fell in the share of ancestor of the interveners-defendants. 33. From perusal of Exhibit N/2 which is plaint of title suit No.143 of 1966, it appears that the interveners-defendants filed the aforesaid suit claiming declaration of title in the suit land. In Schedule B, plot no.300 of khata no.75 was mentioned. 33. From perusal of Exhibit N/2 which is plaint of title suit No.143 of 1966, it appears that the interveners-defendants filed the aforesaid suit claiming declaration of title in the suit land. In Schedule B, plot no.300 of khata no.75 was mentioned. In Schedule C, 2 plots i.e. plot no.289 and 811 have been mentioned. In the prayer portion, it has been prayed for declaration of title of the suit property. The suit was dismissed by Exhibit P, the judgment holding that the plaintiff has got no title and possession over the suit land. Title Appeal No.76 of 1977 was filed by the interveners-defendants which was dismissed by Exhibit P/1, the appellate judgment holding that all the six heirs of Chamru Mahto have not been made party in the suit. Therefore, the suit is bad for non-joinder of party. 34. The learned counsel, Mr. Navin Sinha appearing on behalf of the intervener-defendant-respondent submitted that only plot no.300 was the subject matter of the suit although, the interveners mentioned the two other plots in Schedule C but they never prayed for declaration of title over the said two plots. In the judgment, it is clearly mentioned that this is a suit for declaration of title over plot no.300. In the appellate judgment also, this is the statements. However, from perusal of the plaint, Exhibit N/2, it appears that in Schedule C, these two plots have been included and in the prayer, the plaintiffs prayed for declaration of title over the suit land. There is no evidence or statement in the plaint to the effect that the plaintiff is claiming title only on plot no.300. In the judgment also, there is no mention that the plaintiff restricted his claim for declaration of title only on plot no.300. Now, therefore, at this stage, the submission of the learned counsel for the interveners-defendants cannot be accepted. From perusal of the impugned judgment, it appears that the trial court has not at all applied his judicial mind to these documents. 35. From perusal of the judgment passed in F.A. No.237 of 1979 decided on 16.11.2011, paragraph 39, it appears that considering Exhibit P and P/1, this court has already excluded plot no.289 from partition. 36. Now let us consider the submission of the learned counsel appearing for the interveners-defendants. According to him, only the prayer was made for declaration of title over plot no.300. 36. Now let us consider the submission of the learned counsel appearing for the interveners-defendants. According to him, only the prayer was made for declaration of title over plot no.300. In such circumstances, what happened regarding the other two plots i.e. plot nos.289 and 811. There is no explanation. Whether the plaintiff withdrew the relief claimed against the said two plots or not, has not been explained. There is no mention in the judgment also. Therefore, the principle of explanation V of Section 11 C.P.C. will come into play. Because the title suit No.143 of 1966 was filed for declaration of title with respect to the suit property and the Schedule C shows these two plots were included. The suit has been dismissed. In my opinion, therefore, it will be deemed that the reliefs for these plots have also been dismissed. 37. From perusal of the trial court judgment, it appears that for granting the decree for title, the trial court has relied upon the decision of title appeal No.98 of 1956 but as stated above, the said suit was for deciding the genuineness of the surrender deed wherein Chain Mahto was not party. Further, the trial court has relied upon Exhibit M-1/1 which is an order passed in mutation case and held that the interveners are in possession although, the said order contained in Exhibit M-1/1 was set aside by the order passed in mutation appeal passed against Exhibit M-1/1 vide Exhibit S. Likewise, the learned court below has wrongly relied upon Exhibit L-1 i.e. the compromise in F.A. No.369 of 1951 because in that appeal neither the heirs of Chain Mahto nor the heirs of Gulten Mahto were parties and the suit was between Ishwar and Faujdar. 38. Now let us consider the second claim made by the intervener-defendant nos.13 and 14. It is admitted fact that they are the daughters of Chain Mahto and Chain Mahto died in the year 1945. Admittedly, therefore, they had no interest in the property of Chain. Their claim relates to the self-acquired property of Kokil. So far this property is concerned, the trial court has held that the property detailed in Schedule I to the written statement of the defendants-appellants is the self-acquired property of Kokil. The plaintiffs-respondents had filed F.A. No.603 of 1994 which was dismissed on 03.09.2004. Their claim relates to the self-acquired property of Kokil. So far this property is concerned, the trial court has held that the property detailed in Schedule I to the written statement of the defendants-appellants is the self-acquired property of Kokil. The plaintiffs-respondents had filed F.A. No.603 of 1994 which was dismissed on 03.09.2004. Now, therefore, the position is that the decree for partition with respect to this property has been refused by passing a decree and this part of the decree was challenged in the First Appeal. No cross-objection has been filed by the plaintiff with regard to this part of the decree which is against them in this First Appeal. When the appeal is already dismissed, there is no question arises for filing cross-objection in this appeal. In such circumstances, this part of the decree cannot be challenged by the plaintiffs-respondents. 39. The defendant nos.1 to 3-appellants by filing written statement set up their title by pleading that at the time of death of Kokil gave his self-acquired properties to these defendants and put them in possession. Thereafter, the defendants-appellants are dealing with those properties as owner. The defendants-appellants also alternatively pleaded that they have also acquired title by adverse possession over the said properties. On the contrary, according to the case of intervener-defendant nos.13 and 14, they inherited the self-acquired property of Kokil on his death but the said properties are in joint possession with the branch of Deo Narain i.e. the appellants. The learned counsel for the appellants mainly contended that the partition suit was filed for partition of the property of Chain Mahto. The trial court recorded the finding that this property is self-acquired property of Kokil Mahto. In such circumstances, instead of excluding this property from partition, the trial court decided the disputed question of title between the defendants inter se i.e. defendant nos.1 to 3 and defendant nos.13 and 14. It may be mentioned here that no counter-claim was filed by the intervener-defendant nos.13 and 14 and they could not have filed because counter-claim is not maintainable against defendant by the defendant. The dispute between these defendants is not related with the dispute with the plaintiff and for deciding this disputed question of title between the defendant nos.1 to 3 and the intervener-defendant nos.13 and 14, the dispute raised by the plaintiff is not at all required to be decided in this appeal. 40. The dispute between these defendants is not related with the dispute with the plaintiff and for deciding this disputed question of title between the defendant nos.1 to 3 and the intervener-defendant nos.13 and 14, the dispute raised by the plaintiff is not at all required to be decided in this appeal. 40. In the case of Kasturi vs. Iyyamperumal, (2005) 6 Supreme Court Cases 733, Hon’ble Supreme Court has held that from a plain reading of expression “all the questions involved in the suit” used in Order 1 Rule 10(2) C.P.C. It is abundantly clear that the legislature clearly meant that only the controversies raised as between the parties to the litigation must be gone into, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiffs or the defendants inter se or questions between the parties to the suit and a third party. Here, admittedly, these defendants-respondents are the interveners who were added subsequently. Likewise, the defendant nos.11 and 12 are also added under Order 1 Rule 10 C.P.C. So far the defendant nos.11 and 12 are concerned, they are third party as they are not the heirs of Chain Mahto. So far the dispute between the defendant nos.1 to 3 and defendant nos.13 and 14 is concerned, it is inter se dispute between the defendants. Same view has been taken by the Hon’ble Supreme Court in AIR 1995 Supreme Court 1205(Mahboob Sahab v. Syed Ismail and others) and AIR 1994 Supreme Court 1126(Shell Company of India Ltd. v. Commissioner of Income-tax, Calcutta). 41. In the case of M/S Makhija Construction & Enggr. Same view has been taken by the Hon’ble Supreme Court in AIR 1995 Supreme Court 1205(Mahboob Sahab v. Syed Ismail and others) and AIR 1994 Supreme Court 1126(Shell Company of India Ltd. v. Commissioner of Income-tax, Calcutta). 41. In the case of M/S Makhija Construction & Enggr. P. Ltd. vs. Indore Development Authority & Ors., 2005(3) PLJR 81 Supreme Court, the Hon’ble Supreme Court held that the principle of resjudicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between co-defendants or co-respondents as the case may be, and to apply the rule of resjudicata as between co-defendants, 3 conditions are requisites i.e. there must be a conflict of interest between the defendants concerned, secondly, it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and thirdly, that the question between the defendants must have been finally decided. Here, therefore, in my opinion, the inter se dispute between these defendant nos.13 and 14 and defendant nos.1 to 3 is not necessary to be decided in order to give the plaintiff the relief he claims. 42. In the case of Rohit Singh & Ors. vs. State of Bihar(Now State of Jharkhand) & Ors., 2007(1) PLJR 232 Supreme Court, the Hon’ble Supreme Court held that a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made but it has necessarily to be directed against the plaintiff, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. In the present case, therefore, even if the written statement is treated to be the counter-claim by the defendant nos.13 and 14 is directed against the defendant nos.1 to 3 only. Without considering this aspect of the matter, the learned trial court decided the dispute between the defendant nos.1 to 3 in the one side and defendant nos.13 and 14 on the other side without there being any counter-claim and payment of court fee and moreover, counter-claim itself was not maintainable even if filed. 43. Without considering this aspect of the matter, the learned trial court decided the dispute between the defendant nos.1 to 3 in the one side and defendant nos.13 and 14 on the other side without there being any counter-claim and payment of court fee and moreover, counter-claim itself was not maintainable even if filed. 43. Further, from perusal of the trial court judgment, it appears that while deciding the dispute between these inter se defendant nos.1 to 3 and defendant nos.13 and 14, the trial court has not at all considered the case of the defendants-appellants regarding their claim of title by adverse possession. 44. The learned senior counsel, Mr. K.N.Choubey submitted that the defendants-appellants are claiming that the property was gifted to them by Kokil but admittedly, no gift deed is produced. So far adverse possession is concerned, it is not reliable as no evidence has been produced. So far this submission is concerned, it may be mentioned here that this is the submission before this court but the question is whether the trial court has applied his mind with respect to these facts. There was no issue between these defendants inter se. The further fact is that whether the trial court rejected the plea of adverse possession. From perusal of the judgment, I do not find so. The trial court simply say that on the death of Kokil, his self-acquired property will go to defendant nos.13 and 14 according to law. In my opinion, this finding of the learned trial court is unwarranted and without jurisdiction. It is settled law that the property would have gone if Kokil had not transacted the property during his lifetime. The defendants-appellants claimed that they are coming in possession since 1959 after the death of Kokil and have acquired title by adverse possession but this claim of the appellant has not been decided and cannot be decided as it is inter se dispute and there was no issue between these defendants. 45. In the written statement, these interveners-defendants no.13 and 14 claimed that they inherited the property but are in joint possession with the defendant nos.1 to 3. If the property will go to these interveners entirely then there is no question of joint possession arises. 45. In the written statement, these interveners-defendants no.13 and 14 claimed that they inherited the property but are in joint possession with the defendant nos.1 to 3. If the property will go to these interveners entirely then there is no question of joint possession arises. In the I.A. No.8719 of 2011, the grandson of defendant no.14 has filed counter-claim wherein he has categorically admitted that the defendants-appellants i.e. the heirs of Deo Narain is in possession. Still today, no steps have been taken by them to recover the possession and even no court fee has been filed nor any counter-claim has been made. 46. In view of my above discussion, that part of the decree whereby the court below held that the interveners-defendants no.11 and 12 have title over 3 plots/part of the three plots mentioned above is wrong and without jurisdiction. The interveners may get their title adjudicated in properly constituted suit. I also find that the finding and decree granted by the trial court in favour of intervener-defendant nos.13 and 14 is unwarranted, uncalled for and could not have been granted particularly when it was found that it was the self-acquired property of Kokil and not the joint family property. In such circumstances, the court below could have excluded the property from partition. Accordingly, that part of the decree regarding self-acquired property of Kokil granted in favour of the defendant nos.13 and 14 is set aside. 47. So far the decree regarding Janani-Mardani house which is mentioned in lot no.1 of Schedule II of the plaint is concerned, the trial court has excluded from partition. The plaintiffs have not filed any cross-objection in this appeal against that part of the decree. In such circumstances, the plaintiffs cannot be allowed to attack that part of the decree particularly when the F.A. No.603 of 1994 filed by the plaintiffs has already been dismissed. 48. In view of my above discussion and finding, the impugned judgment and decrees are unsustainable in the eye of law. 49. In the result, this First Appeal is allowed and that part of the judgment and decree indicated above in various points are hereby set aside. The share of the plaintiffs-respondents is modified to the extent indicated above. In the facts and circumstances of the case, there shall be no order as to cost.