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2014 DIGILAW 831 (PAT)

Ram Lakhan Prasad Singh v. Bulak Prasad

2014-08-01

MUNGESHWAR SAHOO

body2014
MUNGESHWAR SAHOO, J.:–The defendant no.2 has filed this First Appeal against the judgment and decree dated 11.09.1972 passed by the learned 1st Additional Subordinate Judge, Biharsharif in Title Suit No.17 of 1967/26 of 1971 decreeing the plaintiff-respondent’s suit for partition to the extent of half share. 2. The plaintiffs-respondents filed the aforesaid suit for partition claiming 8 Annas in the properties described in the schedule of the plaint. According to the plaintiffs, Balkishun Mahton had two sons namely Teja Mahton and Than Singh Mahton. Teja Mahton had three sons namely Ganpat Mahton @ Munshi Mahton, Pokhi Mahton @ Chhotu Mahton and Bhagwat Mahton. 3. Than Singh Mahton died issueless. Pokhi Mahton and Bhagwat Mahton had daughters only and they had no sons. Than Singh Mahton died before survey leaving behind widow who also subsequently died. Similarly Teja Mahton died before survey and after his death, his all three sons came in possession of the entire property. The widow of Than Singh Mahton died in 1930. After death of Teja Mahton, Ganpat Mahton @ Munshi Mahton became the karta of the joint family till his death in the year 1956. After his death, his son, defendant no.1 became karta. At the time of vesting, the Bakast land measuring 13.41 acres became Raiyati land of the joint family of the parties. The joint family also purchased 4.35 acres Bakast land and 15 decimals of Gairmajarua Malik land which also became the Raiyati land of the parties. Bhagwat Mahton, the plaintiff demanded partition and on refusal, the suit was filed. It may be mentioned here that the plaintiffs represent the branch of Bhagwat Mahton whereas the defendants represent the branch of Ganpat Mahton @ Munshi Mahton and Pokhi Mahton @ Chhotu Mahton. Defendant no.2-appellant is the son of Ganpat Mahton. His sons are defendant nos.8 to 10. Defendant no.1 is Lal Narain Prasad Singh and his sons are defendant nos.5 to 7. The daughters of Pokhi are defendant nos.11 and 11(a). Widow of Ganpat was defendant no.3. 4. The defendant no.2 filed separate contesting written statement. Defendant nos.3 and 4 also filed separate written statements. Their defence is in the same line. According to the defendant no.2, the genealogy given by the plaintiffs is admitted. They denied the jointness between the parties. According to them, there had already been private partition between Ganpat Mahton @ Munshi Mahton and Bhagwat Mahton 20-21 years ago. Defendant nos.3 and 4 also filed separate written statements. Their defence is in the same line. According to the defendant no.2, the genealogy given by the plaintiffs is admitted. They denied the jointness between the parties. According to them, there had already been private partition between Ganpat Mahton @ Munshi Mahton and Bhagwat Mahton 20-21 years ago. In that partition, Ganpat Mahton had allotted 17.91 acres Bakast land and Gairmajarua Malik land according to his desire. He was also allotted house standing on 12 decimals of land out of 46 decimals. Since after this partition, Bhagwat Mahton was living separately in mess, house and cultivation, the jamabandi was also separated in his name. The defendant no.1 has set up Bhagwat Mahton to file this suit. The defendant no.3 in her written statement stated that she has already gifted her share to defendant no.2 in 1961 by registered gift deed dated 01.11.1969. Defendant no.4 also stated in the written statement that she has sold a portion of her share to her brother who is defendant no.2 by registered sale deed dated 13.10.1969. Although, widow of Pokhi had filed separate written statement but on her death, her daughters neither appeared nor contested the plaintiff’s suit. 5. On the basis of the aforesaid pleadings, the learned court below framed the following issues:— I. Is the suit as framed maintainable? II. Have the plaintiffs or any cause of action for the suit? III. Whether the plaintiffs are entitled to get a decree for partition? If so to what extent? IV. To what relief or reliefs if any are the plaintiffs entitled? 6. The trial court recorded the finding that there had been no partition between the parties and the parties are joint, accordingly, decreed the plaintiff’s suit. 7. The learned counsel for the appellant submitted that there had already been partition 21 years ago between the parties i.e. Bhagwat Mahton and his two brothers. Bhagwat Mahton separated by taking 17.91 acres. This property has been recorded separately in the name of Bhagwat Mahton. The learned court below did not appreciate properly the evidences and wrongly held that there had been no partition. According to the learned counsel, the defendants-appellants have adduced reliable evidences in support of the fact that there had been partition between the two branches. On these grounds, the learned counsel submitted that the impugned judgment and decree be set aside. 8. According to the learned counsel, the defendants-appellants have adduced reliable evidences in support of the fact that there had been partition between the two branches. On these grounds, the learned counsel submitted that the impugned judgment and decree be set aside. 8. On the other hand, the learned counsel for the plaintiffs-respondents submitted that except the bald statement that there had been partition, no reliable evidence has been produced by the defendants in support of the case of partition between the parties. Moreover, the learned court below considered each and every, oral and documentary evidences and thereafter recorded the finding that there had been no partition. In such circumstances, the judgment and decree passed by the court below cannot be interfered with. Further, it is not believable that out of 104 bighas of land, Bhagwat would have taken only 17.91 acres. 9. In view of the above rival contentions of the parties, the points arise for consideration in this appeal is as to “whether there is unity of title and possession between the plaintiffs and defendants” or “whether as alleged by the defendants Bhagwat Mahton separated 20-21 years ago” and “whether the judgment and decree is sustainable in the eye of law or not?” 10. It may be mentioned here that according to the plaintiffs, there has been no partition between three brothers. Bhagwat Mahton was one of the plaintiffs who filed the suit against the other brothers or their heirs. However, he died during the pendency of the suit. Therefore, the partition suit was filed by the brother alleging that there had been no partition between the brothers. According to Hindu law, the presumption is that a joint Hindu family is presumed to be joint till it is proved that there had been partition between them. In case of brothers, this presumption is stronger. The defendants alleged that 20-21 years ago, there had been partition. In the written statement, they have stated specific year of separation of Bhagwat Mahton i.e. in the year 1949. In support of their respective cases, the parties have adduced evidences oral and documentary. 11. D.W.1, D.W.5, D.W.6 to D.W.10, D.W.12, D.W.18, D.W.20 examined on behalf of the contesting defendants-appellants have only stated that Bhagwat Mahton separated by taking the land measuring 17.91 acres. As stated above, it is admitted fact that there was 104 bighas of land. In support of their respective cases, the parties have adduced evidences oral and documentary. 11. D.W.1, D.W.5, D.W.6 to D.W.10, D.W.12, D.W.18, D.W.20 examined on behalf of the contesting defendants-appellants have only stated that Bhagwat Mahton separated by taking the land measuring 17.91 acres. As stated above, it is admitted fact that there was 104 bighas of land. It is also admitted fact that Bhagwat himself has filed the suit and he has got four daughters. There is no reason as to why he would have taken only 17.91 acres out of the aforesaid vast area of land possessed by the parties. The defendants have also produced Exhibit A which is Register II and also produced the Choukidari Assessment Register, Exhibit A/1 to A/4 in support of the fact that the land measuring 17.91 acres is separately mutated and assessed in the name of Bhagwat Mahton. Exhibit B is the sale deed and Exhibit C is the gift deed, both are of the year 1969 executed by the defendant no.4 and defendant no.3. In this sale deed and gift deed, Bakast land were also sold and gifted in favour of defendant no.2. So far Bakast land is concerned, the specific case of the defendants is that Bakast land measuring 17.91 acres was given to Bhagwat Mahton in the partition. All the Bakast land was allotted in partition to Bhagwat Mahton, then how the said properties were again either sold or gifted to defendant no.2 by the defendant nos.3 and 4. Both these deeds have been executed during the pendency of the suit. Now, therefore, the defendants admitted the fact that the Bakast land is not partitioned as the vendor and the donor both admittedly sold their share only measuring 63.93 acres. So far Exhibit A/1 to A/4, Choukidari Assessment is concerned, it may be mentioned here that the plaintiffs have also produced Exhibit 13 to 13(b) to prove that in fact defendant no.1 and defendant no.2 were also separately assessed with choukidari tax. The case of the contesting defendants is that there was no partition between them. They were joint. If they are joint but choukidari tax has been assessed separately, then how on the basis of the assessment of choukidari tax separately in the name of Bhagwat Mahton will mean that he was separate from his brothers. Likewise, Register II is also not the conclusive proof of partition. 12. They were joint. If they are joint but choukidari tax has been assessed separately, then how on the basis of the assessment of choukidari tax separately in the name of Bhagwat Mahton will mean that he was separate from his brothers. Likewise, Register II is also not the conclusive proof of partition. 12. The plaintiffs have also produced Exhibit 14(b) i.e. Register D of Tauji No.12569 which proves the fact that Bhagwat Mahton purchased with Narain Mahton and another by registered sale deed dated 13.09.1942 and 10.03.1943. The landlord filed rent suit No.4393 of 1953 and 4394 of 1953 against the tenants for realization of arrears of rent wherein Narain Mahton and Bhagwat Mahton were defendants which would be evident from Exhibit 1 and 1/a. The plaintiffs also produced the summons issued in the said rent suit, Exhibit 3 and Exhibit 3/a. If there had already been partition 20-21 years ago or in the year 1949, how the name of Bhagwat continued in Register D of Tauji No.12569. There is no explanation at all. 13. The plaintiffs also produced Exhibit 4 series which are letters i.e. postcards of the year 1957, 1964 written by Chandeshwar and Bulak Mahton in support of the fact that Teja Mahton died in the year 1960. 14. The plaintiffs have also produced Exhibit 14(c) which shows that the names of Munshi Mahton and Bhagwat Mahton are recorded jointly in Register D of Tauji No.8471 of village Saidpur. The plaintiffs also examined as many 25 witnesses in support of the fact that the parties are joint. In view of the above discussion of the oral evidences and documentary evidences produced by the parties, now it becomes clear that except the bald statements of the witnesses, no cogent reliable evidence has been produced by the defendants in support of the fact that Bhagwat Mahton separated in the year 1949 by taking Bakast land measuring 17.91 acres. The evidences produced by the defendants regarding separation are not reliable. 15. On the other hand, the plaintiffs have produced evidences which are documentary evidences and oral evidences in support of the case that the parties are joint. The evidences produced by the defendants regarding separation are not reliable. 15. On the other hand, the plaintiffs have produced evidences which are documentary evidences and oral evidences in support of the case that the parties are joint. As discussed above, the defendant himself either executed registered sale deed or executed registered gift deed during the pendency of the suit in the year 1969 which clearly falsified their case that Bhagwat Mahton separated by taking Bakast land in 1949 because in the registered sale deed and registered gift deed they either sold or gifted the Bakast land also. I, therefore, find that there had been no partition as alleged by the defendants and Bhagwat Mahton never separated by taking 17.91 acres only. The finding of the learned court below on this question is, therefore, hereby confirmed. 16. In the result, I find no merit in this First Appeal and, therefore, this First Appeal is dismissed. ?