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2018 DIGILAW 932 (PAT)

Jagdish Tiwari v. Kishoria Devi

2018-06-26

SANJAY KUMAR

body2018
Sanjay Kumar, J. – This appeal has been filed against the judgment dated 26.06.1976 and decree dated 07.07.1976 passed by 4th Additional Sub-Judge, Siwan in Title (Partition) Suit No.160 of 1966/39 of 1976 whereby and whereunder the learned Sub-Judge dismissed the suit which was filed by these appellants. 2. The appellants had filed the suit for partition claiming 1/4th share in scheduled-‘ka’ of the plaint land barring one Bigha and five Katha land out of it as their exclusive land. They have further claimed half share in the land mentioned in Schedule-‘kha’ of the plaint. The case of appellants (plaintiffs) before the court below inter-alia was that one Banshraj Choubey was common ancestor of the plaintiffs and the defendants who died leaving behind four sons, namely Arahat Choubey, Bishuni Choubey, Atma Choubey and Ramcharan Choubey. The branches of two sons namely, Bishnu Choubey and Atma Choubey became extinct prior to cadastral survey and the share of these two brothers devolved upon the remaining two brothers in the manner as stated hereinafter. The defendant second party, i.e., defendant nos. 9 to 15 who are respondents third party before this Court have half share in the land of scheduled-‘ka’ excluding one Bigha and five Kathas. Their further case is that Ramcharan Choubey died leaving behind three sons, namely Rikesh Choubey, Deoraj Choubey and Jairam Choubey. Out of them Jairam Choubey died issueless and his share devolved upon his remaining two brothers namely Rikesh Choubey and Deoraj Choubey having equal share therein. It is said that two sons of Ramcharan Choubey separated from each other and started cultivating the land separately as per convenience. The defendant nos. 1 to 8 are descendents of Deoraj Choubey and plaintiffs are descendents of Rikesh Choubey. It has been further stated that Rikesh Choubey had two sons, namely Inrason Choubey and Pancha Choubey. Out of them Inrason Choubey died leaving behind his widow Basgita Kuer in the state of jointness with his brother Pancha Choubey. They have further asserted that Most. Deomurta Kuer widow of Ganpat Choubey and daughter-in-law of Atma Choubey orally sold one Bigha five Kathas land to Basgita Kuer. The said land was accordingly recorded in her name during revisional survey. After the death of Basgita Kuer the properties left by her came in possession of plaintiffs. They have further asserted that Most. Deomurta Kuer widow of Ganpat Choubey and daughter-in-law of Atma Choubey orally sold one Bigha five Kathas land to Basgita Kuer. The said land was accordingly recorded in her name during revisional survey. After the death of Basgita Kuer the properties left by her came in possession of plaintiffs. They have further stated that after the death of Ganpat Choubey and Deomurta Kuer, the remaining land devolved on Arahat Chaubey and Ram Charan Choubey to the extent of half each. The plaintiffs are widow and sons of Rampukar Choubey. The plaintiffs have further asserted that Ramdhani Choubey and Ramakar Choubey died issueless in state of jointness with the original plaintiff Rampukar Choubey and so the plaintiffs are entitled to 1/4th share in the property of Rikesh Choubey. The suit properties mentioned in Schedule – ‘Ka’ and ‘Kha’ of the plaint were never partitioned by metes and bounds although the parties were cultivating the land separately as per their convenience. The plaintiffs feeling inconvenience in jointness have filed the suit for partition claiming share in the manner as stated above. 3. The defendant nos.4 and 9 jointly filed their written statement. The defendant nos.14 and 15 have filed their written statement separately. The intervenor defendants no. 16 to 19 also filed their written statement and supported the case of defendant nos.4 and 9. The defendants nos.14 and 15 supported the case of plaintiffs but subsequently left contesting the suit. The suit was contested only by defendant nos.4 and 9 and intervenor defendants nos.16 to 19. 4. The contesting defendants in their written statement, inter-alia, have disputed the correctness of the genealogical table as given by plaintiffs at the foot of the plaint. They have admitted the genealogical table with respect to the plaintiff and defendants. In addition to the existing genealogical table they have stated that Inarson Choubey son of Rikeshwar Choubey neither died issueless nor in the state of jointness with his brother Pancha Choubey. They have asserted that the property of Inarson Choubey was inherited by his widow Basgita Kuer and her only daughter Jhalia Devi. After the death of Jhalia Devi, her sons came in possession over the said land. They have asserted that the property of Inarson Choubey was inherited by his widow Basgita Kuer and her only daughter Jhalia Devi. After the death of Jhalia Devi, her sons came in possession over the said land. Their further case is that Ramdhari Choubey and Ramakar Choubey did not die issueless in the state of jointness with their brother Rampukar Choubey as stated by the plaintiffs rather Ramdhari Choubey died leaving behind his widow Singari Devi and a daughter Ramkeshari Devi. Ramakar Choubey died leaving behind his daughter Anurago who is still alive and she has two sons. The defendants have denied the share of plaintiffs to the extent of 1/4th in the property of Rikesh Choubey. They have further denied the assertion of plaintiff that Most. Deomurta Kuer widow of Ganpat Choubey had orally sold one bigha five kathas land to Most. Basgita Kuer. They have asserted that the suit properties were partitioned by metes and bounds and accordingly, parties are in exclusive and separate possession over their respective share since long and so the suit filed by plaintiffs is not maintainable. 5. On the basis of the pleadings of the parties, the court below framed the following the issues: – (i) Is the suit, as framed, maintainable? (ii) Have plaintiffs got any cause of action for the suit? (iii) Is their any unity of title or possession between the parties in respect of the suit? (iv) Are the plaintiffs entitled to a decree for partition and if so for what share? (v) To what other relief or reliefs are the plaintiffs entitled? 6. The plaintiffs in support of their case have examined five witnesses who are plaintiff no.1 Ramashankar Singh (PW-1), Bishundeo Rai (PW-2), Dharmnath Tiwary (PW-3), Jagdish Tiwary (PW-4) and Sheomati Devi (PW-5). They have proved some documents also. Ext-1 and 1/a are postcard letters. Out of which Ext-1 is letter addressed to original plaintiff Rampukar Choubey by his brother Rampati Choubey in the year 1924. Ext-1/a is letter written by Ramgyani Pandey. Ext-1/b is letter dated 04.11.1924 written by officiating Principal of David Hare Training College, Calcutta. Ext-2 is money order receipt relating to money order sent to Rampukar Choubey by Ramdhani Choubey. Ext-3 is certified copy of R.S. Khatiyan with respect to disputed land. 7. As against this, the contesting defendants have examined 11 witnesses. Ext-1/b is letter dated 04.11.1924 written by officiating Principal of David Hare Training College, Calcutta. Ext-2 is money order receipt relating to money order sent to Rampukar Choubey by Ramdhani Choubey. Ext-3 is certified copy of R.S. Khatiyan with respect to disputed land. 7. As against this, the contesting defendants have examined 11 witnesses. Out of them, defendant no.4 and defendant no.9, namely, Ramjanam Choubey and Akshaibar Nath Choubey have been examined as DWs-7 and 8 respectively. One Janardan Pandey claiming to be son of Ramkeshari Devi (daughter of Ramdhari Choubey) has been examined as DW-6. The remaining witnesses Surajdeo Singh (DW-1), Dharmnath Singh (DW-5) are villagers of the parties. DW-4 Mishri Koeri belongs to another village Belwar where some of the suit land situates. The other witnesses DWs.2, 3, 9 and 11 are formal and they have proved rent receipts as Ext-A to A/22. DW-10 Rambriksh Singh has proved a deed of gift dated 08.06.1960 executed by Gujeshwar Kuer wife of Sheonath Choubey in favour of Akshaybar Choubey defendant no. 9 and the same has been marked as Ext-B. Another deed of gift dated 27.11.1970 executed by Fulena Choubey in favour of Krishnajee Choubey alias Krishna Kumar Choubey has been marked as Ext-B/1. The certified copy of R.S. Khatiyan with respect to suit land has been marked as Ext-C. The learned trial court after discussing the oral and documentary evidence of both the parties decided all the material issues against the plaintiffs and dismissed the suit on contest against the defendant nos.4, 9 and 16 to 19 and ex-parte against remaining defendants with cost. 8. The appellants have assailed the impugned judgment on several counts. But their main contention is that the learned trial court has erred in dismissing the case holding that the plaintiffs have failed to establish their case as regards unity of title and unity of possession over the suit property. Both the parties were heard at length and in view of submission of both the parties, the point arises for consideration in this appeal is as to whether there was/is unity of title and possession between the parties over the suit land and whether the plaintiffs are entitled to partition as claimed by them. 9. From the evidence on record I find that the witnesses examined by plaintiffs have supported the case of plaintiffs as regards jointness of parties over the suit land. 9. From the evidence on record I find that the witnesses examined by plaintiffs have supported the case of plaintiffs as regards jointness of parties over the suit land. The defendants witness on the other hand has stated that the suit properties were partitioned and all the parties come in exclusive possession over their respective share. In evidence, the plaintiff Sheo Mati Devi PW-5 and her husband PW 4 have stated that Ram Pukar Choubey was in exclusive possession of 3 or 4 Bigha land and he was cultivating the same separately. PW4 and 5 although have stated about the joint possession of parties over some of the plots but in cross examination they did not disclose the details of those land. The plaintiff (PW5) in her cross-examination at para 9 has stated that she can’t say at to which part of suit land is in possession of which of the parties. She has stated that the crops cultivated jointly were used to be distributed among the parties. In plaint, the plaintiffs have asserted that the land measuring 1 Bigha 5 Katha belonging to Ganpat Choubey was orally sold by his widow Deo Murka Kuer to Basgita Kuer for Rs. 90/-, which after her death devolved upon the plaintiffs as there was no other person in the branch of Ram Charan Choubey. There is absolutely no evidence on the point of oral purchase. The plaintiffs have neither disclosed the date / period of said purchase nor examined any reliable witness on this point. The witnesses including the plaintiff and her husband have stated that the said purchased land was being cultivated by plaintiffs but neither the plaintiff nor her husband could say about the identity of any of the plot in dispute. 10. The learned counsel for the appellants in support of jointness of Ram Pukar Choubey with his two brother has referred Ext 1, 1/a and 1/b which are letters addressed to Ram Pukar Choubey by different persons. Out of them, Ext. 1/b is letter dated 02.06.1926 written by principal of David Hare Training College Calcutta whereunder Ram Pukar Choubey was requested to take away the belongings of his brother Ram Dhari Choubey and also to clear his debts. The said Ram Dhari Choubey was in service of School at Calcutta. Out of them, Ext. 1/b is letter dated 02.06.1926 written by principal of David Hare Training College Calcutta whereunder Ram Pukar Choubey was requested to take away the belongings of his brother Ram Dhari Choubey and also to clear his debts. The said Ram Dhari Choubey was in service of School at Calcutta. The learned counsel could not satisfy this court as to how these documents prove the case of jointness among the brothers of Ram Pukar Choubey. 11. The contesting defendants on the other hand has asserted that the plaintiffs have not come to the court with clean hands. They have suppressed the fact that the other co-sharers Ramdhari Choubey and Ramakar Choubey who were full brothers of Ram Pukar Choubey died leaving behind daughters namely Ram Kishri Devi and Anurago Devi respectively. Besides that Inrasan Choubey died leaving behind a daughter Jharia Devi who inherited the entire interest of her father. The defendants’ witnesses have stated that Inrasan Choubey, Ram Dhari Choubey and Ram Pukar Choubey died leaving behind their daughters as their legal heirs. The plaintiffs’ witness PW 4, who is husband of plaintiff Sheo Mati Devi has stated that he has no knowledge about the genealogy of any of the parties. The plaintiffs although claimed that 1 bigha 5 Katha land was orally purchased by her father from Deo Mati Keur but the said purchase did not take place in her presence. The plaintiff Sheo Mati Devi (PW 5) in her evidence at para 16 says that she has no knowledge as to in which village the said land situates. 12. The defendants have filed Ext B and B/1 which are registered deed of gift dated 8.6.1960 and deed of gift dated 27.11.1970. Ext-B was executed by Gunjeshwari Kuer widow of Srinath Choubey in favour of Achhaywar Choubey (defendant no.9) and Ext B/1 was executed by Fulena Choubey in favour of Krishna Ji and others. The recitals of these two documents show that the donors of deed of gift were in exclusive possession of the said land by virtue of partition from their co-sharers and they gifted the land in favour of some of the defendants. The plaintiffs have included the land of deed of gifts in the subject matter of partition. The recitals of these two documents show that the donors of deed of gift were in exclusive possession of the said land by virtue of partition from their co-sharers and they gifted the land in favour of some of the defendants. The plaintiffs have included the land of deed of gifts in the subject matter of partition. The defendants have further filed rent receipt Ext-A to A/22 which show that the land in dispute are mutated in the name of different co-shares. Ext-A, A/1, A/5, A/11 stand in the name of Ram Pukar. Out of which Ext A and A/11 are of the year 1968-69 and 1969-70. Ext A/10 and A/13 are in the name of Ram Janam Choubey for the year 1969-70. The other rent receipts Ex A/2, A/3, A/7 and A/14 are in the name of Akshwar Choubey and Uma Shankar Choubey. It has been submitted that R. S. Khatian Ext C and 3 filed by both the parties show that the name of widow of Inarsan Choubey stands recorded alongwith other co-sharer which indicates that Inarsan died in a state of separation from his co-sharer and not in jointness. The plaintiffs plea that Basgita Kuer acquired same land exclusively does not find support from oral and documentary evidence rather the evidence on record suggests that Inrasan Choubey and Pancha Choubey were separate among themselves and they and their successor were in exclusive cultivating possession over the land in dispute as per their share. It further stands established that the plaintiffs had not impleaded some of the heirs of co-sharers and asserted that after the death Inrasan his widow and Pancha Choubey, the entire land of their share devolved upon Ram Pukar Choubey. The Court below while considering the evidence of both the parties on the point of genealogy of parties, has rightly held that Ramdhari Choubey, Ramakar Choubey and other co-owner died leaving behind their respective heirs as asserted by the defendants. The plaintiffs are silent on the pleading and evidence of defendants as regards execution of two deeds of gift which were executed much earlier to the filing of the partition suit. The plaintiffs have not sought any relief against the said documents. 13. In view of above discussions I find that the plaintiffs have failed to prove their unity of title and possession over the suit property. The plaintiffs have not sought any relief against the said documents. 13. In view of above discussions I find that the plaintiffs have failed to prove their unity of title and possession over the suit property. There appears no reason to interfere with the findings of the court below. Therefore, the finding of the court below is hereby upheld. 14. In the result, I find no merit in this appeal. Accordingly, it is dismissed. In the facts and circumstances of the case, there shall be no order as to cost.