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2013 DIGILAW 855 (PAT)

Shyam Nath Singh v. Bhagat Singh

2013-07-22

MUNGESHWAR SAHOO

body2013
JUDGMENT : MUNGESHWAR SAHOO, J.:–The plaintiffs-respondents-appellants have filed this second appeal against the judgment and decree dated 26.7.1980 passed by the learned 1st Additional District Judge, Siwan in Title Appeal No. 209 of 1974/ 8 of 1977 whereby the lower appellate court allowed the appeal and reversed the judgment and decree of the trial court dated 13.8.1974 passed by the learned 2nd Additional Subordinate Judge, Siwan in Title Suit No. 45 of 1967/ 10 of 1973. 2. The plaintiffs respondents filed the aforesaid partition suit claiming 1/3rd share in the suit land. According to the plaintiffs 8 anas proprietary interest belong to Sidheshwari Sharan Singh and Fuleshwari Sharan Singh whereas 6 anas share belonged to Sarju Narayan Singh and others who are the ancestors of the defendants. The plaintiffs’ ancestors i.e. Duniya Dayal Singh and Mathura Singh had 2 anas shares. Sidheshwari Sharan Singh sold his 2 anas 45 pais interest to Dunia Dayal Singh on 25.2.1936 and likewise 1 ana share was sold by Fuleshwari Sharan Singh to the plaintiffs. The defendants’ ancestors purchased remaining 4/8 pai interest in the Tauji and thus they acquired 10 annas 8 pai interest in the Tauji and the plaintiffs acquired 5 anas 4 pai interest in the Tauji including the Bakast Gair Mazurawa homestead land. The total area of the Tauji was 61 Bigha 1 Kattha 10 dhurs. Out of the said Tauji 30 bigha land belonged to Most. Tapi Kuer who died before R.S. Therefore, the land of Tapi came in possession of the Malik and recorded as Bakast land. The further case of the plaintiffs is that there has been no partition between the parties. The parties are in joint possession of some of the land and are in separate possession of some of the land. 3. The defendants respondents filed contesting written statement. The main defence of the defendants is that Most. Tapi Kuer was the member of the family of the defendants. She died issueless before R.S., therefore, her land devolved on the defendants who are the reversioner. Sidheshwari Sharan Singh one of the landlord filed a Tanaza to get the land of Tapi Kuer regarding Bakast of 16 anas Malik which was rejected. There was partition between the parties after death of Tapi. After vesting the land became the Kast land of the defendants and they are paying rent which has been fixed in their name. Sidheshwari Sharan Singh one of the landlord filed a Tanaza to get the land of Tapi Kuer regarding Bakast of 16 anas Malik which was rejected. There was partition between the parties after death of Tapi. After vesting the land became the Kast land of the defendants and they are paying rent which has been fixed in their name. However, the plaintiffs fraudulently got the rent fixed with respect to certain land of the defendants. 4. The trial court decreed the plaintiffs’ suit finding that the defendants failed to prove that Tapi Kuer belonged to the family of the defendants. The trial court also disbelieved the case of the parties. 5. On appeal, the lower appellate court recorded the finding that there had already been partition between the parties prior to survey i.e. 1914. Most. Tapi Kuer died prior to cadastral survey and after partition the property is recorded in the name of the defendants. The lower appellate court also recorded the finding that the property fell in the Patti of the defendants and thus, allowed the appeal and reversed the judgment of the trial court. The plaintiffs’ suit was dismissed. 6. At the time of admission, the following substantial question of law was formulated :– “Whether in view of the admitted fact that the parties to the suit were purchasers of the entire 16 annas interest of the Tauzi in question and in view of the finding that the lands once recorded in the name of Tapo Kuer became Bakast – Malik to the benefit of 16 annas landlord, the plaintiffs, ho are admittedly co-sharers with the defendants to the extent of 5 annas 3 paies, can be denied their share in the disputed property.” 7. The learned counsel Mr. Dronacharya appearing on behalf of the appellants submitted that both the courts below recorded the finding that the lands recorded in the name of Tapi Kuer became Bakast Malik to the benefit of 16 anas landlord therefore, the lower appellate court has wrongly denied the partition of the property when according to the finding of the courts below the property of Tapi Kuer devolved on the 16 anas Malik. Admittedly, the plaintiffs are claiming only 1/3 share out of the land of Tapi Kuer. Admittedly, the plaintiffs are claiming only 1/3 share out of the land of Tapi Kuer. According to the learned counsel when the plaintiffs are co-sharers the lower appellate court could not have recorded the finding that the plaintiffs have failed to prove unity of title and possession and because it is settled law that possession of one co-sharer is the possession of other co-sharer. Moreover according to the plaintiffs there is specific case that the parties are in possession of some properties jointly and some properties separately which clearly indicates that there was unity of title and possession. 8. On the contrary, according to the learned counsel for the respondents the recorded tenant Most. Tapi Kuer died much prior to the cadastral survey which took place in the year 1914. There was partition between the parties as has been admitted by the plaintiffs prior to 1914 after death of Tapi Kuer. According to the partition the properties have been recorded in the C.S. record of right. On the death of Tapi Kuer the property devolved on 16 anas Malik. According to the finding of both the courts below then also there was partition between the 16 annas Malik therefore, there is no question of further partition arises. The lower appellate court considered the evidences and then recorded the finding that there had been partition of the property between the plaintiff and the defendants. The learned counsel further submitted that since 1914 it cannot be presumed that the parties who are not the family members rather they are the co-landlords, they continued in joint possession of the properties. Here the presumption available to a joint Hindu family is not available in favour of the plaintiffs. Therefore, when the plaintiffs themselves admitted that there had been partition with respect to some property, it is for them to prove that with respect to some property they are still joint. 9. From perusal of the lower appellate court judgment it appears that no doubt, the lower appellate court has also recorded the finding that the property of Tapi Kuer devolved on 16 anas Malik but the lower appellate court further found that there had already been partition between the plaintiffs and the defendants prior to cadastral survey and the property of Tapi fell in the Patti of the defendant. It is not the case of the appellants that this finding of the lower appellate court is perverse or is based on no evidence. It is admitted fact that Tapi Kuer died prior to 1914. It is not the case of the parties that the parties are members of joint Hindu family but they are co-landlords. Therefore, in my opinion, there is no presumption that the co-landlords continued to be joint even after vesting of Zamindari and even after cadastral survey record of right. The plaintiffs have not filed the suit for partition alleging that there is unequal share allotted to the plaintiffs. Their case simply is that there is no partition between the parties. Now therefore, even if it is held that the property of Tapi Kuer devolved on 16 annas Malik then also because there was partition between the parties as has been found by the lower appellate court, the plaintiffs are not entitled to claim further partition after more than half century. It is settled law that so far the finding regarding whether there was partition or not partition is pure question of fact. In such circumstances, this court being the second appellate court cannot re-appreciate the evidence and substitute the finding of the fact. Even if two views are possible the second appellate court cannot substitute the finding of fact by re-appreciating the evidence. 10. In view of the above discussion, in my opinion, since there is a finding that there had already been partition between the parties and property fell in the Patti of the defendants respondents, the plaintiffs are not entitled to any relief and the lower appellate court has rightly dismissed the suit for partition. 11. In the result, the substantial question of law formulated is answered against the appellants. Thus, this second appeal is dismissed. In the facts and circumstances of the case, no order and to cost. ?