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2019 DIGILAW 88 (ALL)

Raj Narain v. Raj Kishor

2019-01-09

JASPREET SINGH

body2019
JUDGMENT : JASPREET SINGH, J. 1. This is defendant’s second appeal being aggrieved by the judgment of reversal by which the suit for partition filed by the plaintiff-respondents was initially dismissed by the court of 4th Additional Munsif Gonda vide judgment and decree dated 03.04.1986 passed in Regular Suit No.62 of 1985 was reversed and suit decreed in First Appeal No.59 of 1986 by means of the judgment and decree dated 28.01.1987. 2. The plaintiff-respondents instituted the suit for partition on the ground that the disputed property in question was purchased by means of a registered sale-deed dated 03.11.1978 alongwith the three defendants who are real brothers. It was further stated that all other properties which they got from their father was already partitioned amongst themselves around 15 to 20 years prior to the institution of the suit and it is this disputed property alone which was purchased in 1978 was the subject matter, wherein the plaintiff had 1/4th share and for the aforesaid purpose suit was instituted. 3. The defendant no.1 who is appellant before this Court filed a separate written statement and took a plea that all the properties in question were partitioned including the disputed property and the disputed property was received by the defendant no.1 in the aforesaid partition exclusively, accordingly neither the plaintiff nor the defendants no.2 and 3 had any right. The defendant no.1/appellant also pleaded that the plaintiff and other defendants had already got a share in lieu of the disputed property and since the disputed property was already partitioned, therefore, another partition was not possible. 4. The defendants no.2 and 3 filed a joint separate written statement wherein they admitted that the property was jointly purchased by the parties but the disputed property was given to the defendant no.1 in Khangi Batwara. It was stated by them that the plaintiffs and the defendant nos.2 and 3 are joint and amongst them there is no partition while the defendant no.1 had separated his share. 5. Significantly, after filing of the written statement by the defendant nos.2 and 3, they did not contest nor they led any evidence, thus primarily the suit was contested between the plaintiff-respondents and the defendant no.1 appellant. 6. 5. Significantly, after filing of the written statement by the defendant nos.2 and 3, they did not contest nor they led any evidence, thus primarily the suit was contested between the plaintiff-respondents and the defendant no.1 appellant. 6. The trial court framed four issues whereas issue no.2 related to the fact as to whether the property in dispute was joint between the plaintiff and the defendants and whether the plaintiff had 1/4th share therein and issue no.3 was framed on the pleadings of the defendant no.1 to the effect as to whether the defendant no.1 was the sole owner in possession of the disputed property in light of the pleadings contained in paragraphs 8, 9 and 12 of the written statement. 7. The plaintiff examined himself as P.W.1 and the defendant no.1 examined himself as D.W.1. The trial court while considering the evidence led by the parties held that the plaintiff could not establish the fact that in respect of ancestral properties, a partition had taken place about 15 to 20 years prior to the institution of the suit and rather the defence taken by the dependent no.1 was more plausible that all the properties including the disputed property had been partitioned wherein all the parties received their shares in the 1980 and thus the version of the defendant was more believable. From the reading of the judgment passed by the trial court, it appears that what prevailed in the mind of the trial court was the fact that according to the plaintiff, if the partition had occurred in respect of ancestral properties 15 to 16 years prior to the institution of the suit, then there was no cause for the parties to the suit to jointly purchase the property in 1978 and thus held that as pleaded by the defendant, a Khangi Batwara was effectuated between the parties in the year 1980 and the disputed property was received by the defendant no.1 therein and accordingly he is the owner in possession of the same. With the aforesaid findings, the suit of the plaintiff was dismissed by means of judgment and decree dated 03.04.1986. 8. With the aforesaid findings, the suit of the plaintiff was dismissed by means of judgment and decree dated 03.04.1986. 8. The plaintiff-respondents preferred a regular civil appeal bearing No.59 of 1986 wherein the appellate court after re-appraising the entire evidence found that there was inconsistencies in the statement given by the defendant no.1 and the plaintiff was able to establish its case which was simply the fact that the property was purchased by means of sale deed dated 03.11.1978 was joint, wherein each of the parties had 1/4th share and thus he was entitled to get the aforesaid property partitioned. With the aforesaid, the first appellate court by means of its judgment and decree dated 28.01.1987 allowed the appeal and decreed the suit. 9. The defendant no.1 being aggrieved against this judgment of reversal has preferred the above second appeal which was admitted by means of dated 28.04.1992 on the substantial question of law:- (1) Whether the learned lower appellate court has committed substantial error of law by ignoring the admission made by defendant-respondents no.2 and 3 in the written statement and what is the effect of the admission in respect of the question involved ? (2) Whether the learned lower appellate court has wrongly placed and shifted the burden of proof on the defendants ? 10. I have heard Sri Hari Om Singh learned counsel for the appellant and Sri Alok Kumar Mishra learned counsel for the plaintiff-respondent no.1. 11. It has been canvased by the learned counsel for the appellant that since all the properties had been partitioned and there was nothing left to be partitioned amongst the parties and this finding had been recorded by the trial court after assessing the evidence, accordingly it was not open for the first appellate court to reverse the finding and by doing so the learned first appellate court has committed an error. It was further elaborated by the learned counsel that the defendant nos.2 and 3 had substantially admitted the case of the defendant no.1 and this admission has been ignored which has led the first appellate court to give an incorrect finding. If the aforesaid admission had been noticed, the fate of the first appeal would have been otherwise. 12. It was further elaborated by the learned counsel that the defendant nos.2 and 3 had substantially admitted the case of the defendant no.1 and this admission has been ignored which has led the first appellate court to give an incorrect finding. If the aforesaid admission had been noticed, the fate of the first appeal would have been otherwise. 12. Learned counsel for the appellant further argued that the first appellate court also did not frame the points for determination as required under Order XLI Rule 31 which in effect has led the first appellate court to misdirect itself and it has deviated from the crux of the controversy involved, by placing the burden incorrectly on the defendant and accordingly because of the aforesaid, the findings of the first appellate court cannot be sustained. 13. Per Contra, learned counsel for the respondent has submitted that the first appellate court is well within its domain to reverse a finding if it finds that the same is an outcome of non-appreciation of evidence in the correct prespective as the first appellate court is the final court of facts and law. Once the first appellate court has taken a view based on the evidence available on record such findings being pure finding of fact cannot be reversed or be looked into by this Court under Section 100 CPC and since there is no substantial question of law involved, accordingly the appeal deserves to be dismissed as the first appellate court has rightly decreed the suit of the plaintiff. 14. I have given my anxious consideration to the submissions made by the learned counsel for the parties and carefully perused the record. 15. In order to appreciate the submission of the learned counsel for the appellant whether that the learned lower appellate court has committed a substantial error by ignoring the admission of the defendant nos.2 and 3 in their written statement which in effect substantially admitted the case of the defendant no.1 appellant and by ignoring the same the first appellate court has committed an error, the pleadings have to be perused. 16. From the perusal of the plaint, it indicates that the plaintiff had categorically pleaded that the disputed property in question was purchased by the parties jointly, from one Sri Ghanshyam by means of a registered sale deed dated 03.11.1978, wherein each of the parties had 1/4th share therein. 16. From the perusal of the plaint, it indicates that the plaintiff had categorically pleaded that the disputed property in question was purchased by the parties jointly, from one Sri Ghanshyam by means of a registered sale deed dated 03.11.1978, wherein each of the parties had 1/4th share therein. It is also the case of the plaintiff that all the ancestral properties which has also been shown in the site-plan annexed and forming part of the plaint in suit were separated and each of the parties are living in their respective portions separately in pursuance of the partition which occurred 15 to 20 years prior to the date of institution of the suit and it was only the property in question which was purchased after the death of the father of the parties in 1978 which was the subject matter of the suit. 17. On the other hand, the defendant no.1 in paragraphs 8, 9, 11 and 12 specifically pleaded that a Khangi Batwara was effected in between the parties in terms whereof the defendant no.1 got the property exclusively in his share as a result neither the plaintiff nor the defendant nos.2 and 3 had any right over the property in question. It was also specifically pleaded that at the time of partition, the disputed property was divided and it is in terms of the division that the defendant no.1 got this property exclusively in lieu of his share. The defendant nos.2 and 3 filed their separate joint written statement wherein in paragraph 8, they stated that the property in question was given to the defendant no.1 in Khangi Batwara and the plaintiff and defendant nos.2 and 3 are still joint as there is no partition between them. In paragraph 12, it is also stated by the defendant nos.2 and 3 that they are staying together with the plaintiffs and there is no partition between them. 18. Thus, in effect from the perusal of the pleadings, the controversy is to the effect whether according to the plaintiff, the partition had occurred about 15 to 20 years prior to the institution of the suit in respect of ancestral property and the parties were already in possession of their respective shares and since the disputed property was jointly purchased by means of the deed dated 03.11.1978 and the plaintiff wanted to separate his share. On the other hand, the defendant no.1 has taken a wavering stand. He pleads on one hand that there is a Khangi (mutual) Batwara in pursuance of which the aforesaid property has been given to him in lieu of his share and on the other he says that all the properties have been partitioned in the year 1980 and in terms thereof the defendant no.1 has been in its exclusive possession. The defendants no.2 and 3 have filed a supporting written statement in favour of the defendant no.1 and stated that the defendant no.1 has got the property in question in Khangi Batwara whereas they deny the fact regarding a partition and they claimed to be jointly owners of the property alongwith the plaintiff. 19. It is important to note that after filing of the written statement the defendant nos.2 and 3 did not contest nor did they appear in the witness box to support the pleadings either way. The defendant no.1 examined himself as D.W.1 and though his two other brothers i.e. the defendant nos.2 and 3 had filed a consenting and supporting written statement in his favour, he could have examined them as witnesses to establish the fact of partition / Khangi Batwara as pleaded by him but it was not done. 20. The suit is instituted in the year 1985 and it is a categoric pleading of the defendant no.1 that the partition took place in the year 1980 wherein all the properties including the disputed property was partitioned and thus there was no property left for which a further partition could take place. 21. It is also to be noted that it is a suit for partition wherein each of the parties is the plaintiff as well as the defendant. There is the variance in pleadings between the case of the plaintiff, the defendant no.1 and the defendant nos.2 and 3. The only common ground is that the plaintiff and the defendant no.1 both state that a partition has taken place which according to the plaintiff was 15 to 20 years before the institution of the suit and was confined only to the ancestral properties whereas the defendant no.1 pleads that the partition took place in the year 1980 which was comprehensive including both the ancestral as well as of the self acquired property by means of the sale deed dated 03.11.1978. 22. 22. The defendant nos.2 and 3 only support the case of the defendant no.1 to the effect that in terms of the partition, the defendant no.1 separated his share while the defendant nos.2 and 3 remained joint with the plaintiff. 23. Thus, in order for an admission to be binding, it must be clear and unequivocal. A mere statement in the written statement in support of a co-defendant or a co-plaintiff, ipso-facto, does not partake the nature of an admission which on its own can be said to be binding and does not require proof. 24. The reason for the aforesaid is, that generally the statement or defence made by one defendant cannot be read in evidence for or against his co-defendant. If it were to be allowed, the plaintiff might make one of his friends a defendant and thus may gain most unfair advantage. It is plain, therefore, on principle and policy that the statement of a co-party while usable against him, are not usable against the other co-party. 25. But this rule has no application to cases where the co-defendants have a joint interest. If there is privity of interest between the defendants, the admission on one can be used against the other. 26. It is from this perspective, if the alleged admission as claimed by the appellant is examined, it would indicate that first of all an admission may be binding against a person who has made it, but it cannot be used against another party who is already opposing the claim, therefore, the admission if at all could be used against the defendants no.2 and 3 but could not be made binding on the plaintiff without it be confronted or the defendant nos.2 and 3 being examined in the court. Even otherwise there was no clear admission on the part of the defendant nos.2 and 3 inasmuch as the alleged admission contained in the pleadings has to be read as a whole. In the written statement filed by the defendant nos.2 and 3 in paragraph 8, they state that in a Khangi Batwara, the defendant no.1 got the disputed property as his share and in the same paragraph it is stated that the plaintiff and the defendant are joint even today and there is no partition between them. In the written statement filed by the defendant nos.2 and 3 in paragraph 8, they state that in a Khangi Batwara, the defendant no.1 got the disputed property as his share and in the same paragraph it is stated that the plaintiff and the defendant are joint even today and there is no partition between them. Thus, it is not a clear admission at all which could be treated as sacrosanct for the first appellate court to take it at its face value to be read against the plaintiff which required no proof. 27. Thus, this Court finds that the learned appellate court was not bound by the alleged admission as argued by the appellant rather it was a plea which was taken by the defendant nos.2 and 3 in the written statement and if at all defendant no.1 who was a co-party and was interested and wanted to use the aforesaid admission to his benefit, he ought to have examined the defendant nos.2 and 3 as witnesses to explain and clarify which has not been done and now it is not open for the appellant to state that the aforesaid admission has been ignored, thus the submission of the learned counsel for the appellant does not hold water. 28. The next submission of the learned counsel for the appellant that the lower appellate court has wrongly placed and shifted the burden of proof on the defendant is also misconceived; inasmuch as it requires no elaboration to the proposition which is now fairly well settled that where the parties have led evidence, the burden of proof looses its significance. 29. The elementary rule in Section 101 of the Indian Evidence Act is inflexible. In terms of 101 of the Indian Evidence Act, ordinarily the burden of proving the fact rests on the party who substantially asserts the affirmative and not on the party who denies it. The said rule may not be universal in its application and there may be exceptions thereto. The suit will fail if both the parties do not adduce any evidence in view of Section 101 of the Indian Evidence Act. The said rule may not be universal in its application and there may be exceptions thereto. The suit will fail if both the parties do not adduce any evidence in view of Section 101 of the Indian Evidence Act. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges the onus and makes out the case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would dis-entitle the plaintiff to the same. 30. Thus, applying the aforesaid principles, if the matter at hand is seen in this prespective, it would be clear that the plaintiff had categorically pleaded that the ancestral properties had already been partitioned and it is only in 1978 that the disputed property had been purchased and this alone was the subject matter of the suit. The plaintiff had also annexed a copy of a map wherein the status of the shares of the respective parties was indicated regarding the ancestral properties and the disputed property was shown by red colour. Though the defendant has made denial but he has also taken a specific plea that the partition had occurred between the parties in the year 1980. The plaintiff examined himself as P.W.1 and clearly supported his case as set up in the plaint. While in his cross-examination, he clearly supported the plea that a partition had taken place in respect of the ancestral properties and in pursuance thereof each of the parties was in possession of their respective shares. It is only the property in question which is joint and he clearly denied the fact that the disputed property had also been partitioned earlier whereas the defendant no.1 who appeared as D.W.1 admitted that the disputed property was purchased jointly by the parties but for his convenience the disputed property was given to him in partition. He admitted that his house has been separated and that the ancestral property was partitioned wherein he alone has separated while the others parties are still joint. However, he failed to give any detail regarding material particulars of the partition as claimed by him which has occurred in the year 1980. 31. Upon a specific question being asked, he replied that the aforesaid partition did not happen in front of any one, it was not reduced in writing. However, he failed to give any detail regarding material particulars of the partition as claimed by him which has occurred in the year 1980. 31. Upon a specific question being asked, he replied that the aforesaid partition did not happen in front of any one, it was not reduced in writing. Thus, from the assessment of the evidence made by the first appellate court, it found that the version of the plaintiff was more believable and consistent whereas the version of the defendant no.1 had inconsistencies. 32. The first appellate court has considered the inconsistencies in the pleadings and evidence of the defendant no.1 and most specifically the fact that in case if all the ancestral properties including the property in question was divided, then why alone the defendant no.1 was separated and not the others. None of the parties have supported the plea rather as per the map which is annexed, there is a vague denial by the defendant but it has nowhere been denied that the exclusive shares in respect of the ancestral properties which are in separate possession of the respective defendants, is not correct. This being so the plea taken by the defendants that only he alone was separated and not the defendants no.2 and 3 and the plaintiff does not lend credence. 33. Since the defendant no.1 was not able to establish the factum of partition in the year 1980, thus the only question was that whether the property which was purchased by means of the deed dated 03.11.1978 was to be partitioned or not and it is the admitted case of the parties that the said property had been purchased jointly. Since the defendant no.1 could not establish the partition of year 1980 and it is the specific case of the plaintiff that his suit was confined only to this property in question, thus in terms thereof he had discharged his burden in terms of Section 101 of Indian Evidence Act whereas the onus was on the defendant no.1 which he failed to discharge, consequently the learned appellate court was justified in returning a finding that the plaintiff was entitled to partition of his 1/4th share in the disputed property and rightly decreed the suit of the plaintiff. 34. This Court does not find any error in the finding recorded by the learned appellate court below. 34. This Court does not find any error in the finding recorded by the learned appellate court below. Consequently, this Court is of the opinion that the judgment and decree dated 28.01.1987 does not suffer from any error, accordingly the same is affirmed. 35. No other point has been pressed before this Court. 36. Accordingly this second appeal lacks merit and is dismissed. There shall be no order as to costs. 37. The Registry is directed to remit the lower court record to the concerned court below within a period of two weeks.