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2020 DIGILAW 17 (JHR)

Shankar Sharma v. Mostt. Nirmala Devi

2020-01-07

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT 1. Heard Mr. S. N. Das, learned counsel appearing for the appellants. 2. This second appeal has been filed against the judgment and decree dated 21.11.2017 and 29.11.2017 respectively passed by the District Judge-XIV, Hazaribagh in Title Appeal No.9 of 2017 whereby the appeal has been dismissed and the judgment and decree dated 23.01.2017 and 31.01.2017 respectively passed by the learned Civil Judge (Junior Division), Hazaribagh in Partition Suit No.85 of 2009 has been affirmed. 3. The case of the appellants/plaintiffs was that the Ghutar Pandey formed a joint Hindu Family with his son and grandsons namely Kedar Nath Sharma and Shankar Sharma. Bhanu Prakash Sharma was the eldest son of late Ghutar Pandey who used to took after the family being ''Karta'' of Joint Family. In the year 1930, Bhanu Prakash Pandey had purchased a piece of land described in Shedule-B of the plaint from the joint family fund which was being looked after by Bhanu Prakash Pandey. The said property was a barren piece of land and subsequently two rooms were constructed over a portion of land from the joint family fund and they started living in the rooms aforesaid. The appellants/plaintiffs further made out a case before the court below that during his lifetime, Bhanu Prakash Pandey dishonestly executed a sale deed with respect to the schedule-B property of the plaint in favour of Mati Devi, the wife of Kedar Nath Sharma vide registered sale deed no.6412 dated 21.07.1961. By passage of time, Bhanu Prakash Sharma died on 09.08.1996 and his daughter-in-law Mati Devi also died. After the death of Mati Devi, her daughter namely Nirmal Devi and Aasha Rani jointly sold the schedule-B property to their youngest sister Anita Kumari by virtue of a registered sale deed No.8462 dated 29.07.2009. Funeral ceremony of Kedar Nath Sharma and his wife Mati Devi was performed by Bablu Shrma son of plaintiff No.1. It has been stated that during the lifetime of Bhanu Prakash Sharma his eldest son Kedar Nath Sharma and the appellants/plaintiffs lived together with the defendants. Even after the death of Kedar Nath Sharma his wife Mati Devi lived together with the plaintiffs and Shankar Sharma plaintiff No.1 used to share the expenses of the joint family. It has been stated that during the lifetime of Bhanu Prakash Sharma his eldest son Kedar Nath Sharma and the appellants/plaintiffs lived together with the defendants. Even after the death of Kedar Nath Sharma his wife Mati Devi lived together with the plaintiffs and Shankar Sharma plaintiff No.1 used to share the expenses of the joint family. It was further contended that during her life time Mati Devi accepted half share of the plaint in Schedule-B property of the plaint which was also given in writing. On the basis of sale deed defendant No.3 Anita Kumari started living in the entire Schedule-B land and thereby she wanted to deprive the plaintiffs share in schedule-B property and in this view of the situation, the plaintiffs demanded partition of their half share in the joint property but the defendants evaded their demand and lastly on 06.08.2009 they finally refused to give half share to the plaintiffs in the suit property. In the light of the above facts, the appellants/plaintiffs instituted the suit and prayed for decree for partition of their half share in the suit property and to appoint the Survey Knowing Pleader Commissioner to carve out the partition and also prayed for his share and prayed for the cost of the suit. Pursuant to the notice, all three defendants appeared and filed a joint written statement challenging the contention of the appellants/plaintiffs. A common preliminary objection was raised as the suit is not maintainable without having any cause of action, undervalued, misconceived in law and facts and concealment of necessary facts. It was further contended that the property was not joint in between the parties since there was no unity of title and possession in between them. It was admitted by the defendants that Bhanu Prakash Pandey was the eldest son of late Ghutar Pandey and that in the year 1930 Bhanu Prakash Pandey had purchased a piece of land. It was further admitted that Schedule-B property was a barren land upon which two rooms were constructed over a partition of the same but at the same time, it has been denied that the property was purchased from the joint family fund and it was also denied that the rooms were constructed from a joint family fund rather strongly contended that the acquisition of the property was made from the exclusive fund of the purchaser. It was further contended that the appellants/plaintiffs being a family members have been allowed to live in the aforesaid house which was a permissive possession. It was clearly stated that the sale deed no.6412 dated 21.07.1961 was a genuine sale executed by Bhanu Prakash Pandey. It has been vehemently denied that the last rites and rituals of Kedar Nath Sharma and his wife Mati Devi was performed by Babloo Sharma, the sons of plaintiff no.1 rather it was performed by the defendants out of their own fund. It has been denied that Mati Devi in order to avoid further litigation amongst the family members gave in writing and executed half share of the appellants/plaintiffs in Schedule-B property and there was no question of depriving the plaintiffs from their legitimate share in Schedule-B property of the plaint. It was further contended that the appellants/plaintiffs did not have any right, title and interest over the suit property rather they were forcibly living therein. The appellants/plaintiffs never demanded partition from the defendants and the date of cause of action mentioned in the plaint was absolutely false and imaginary. It was further contended that the Mati Devi had acquired the property herself and it was her ''STRIDHAN'' property. She had only three daughters who became legal heirs and absolute owner after her death. It was lastly contended that the appellants/plaintiffs suit is without having any cause of action and their claim is absolutely mala fide, therefore, the same was fit to be dismissed. On the basis of above pleadings, the trial court entered into the lis and formulated eight issues to decide the suit. After discussing all the evidences as well as the documents exhibited by the parties, the trial court came to the finding that the land in question was purchased from the own earnings of Bhanu Prakash Pandey, therefore, the trial court dismissed the suit vide judgment dated 23.01.2017. 4. Aggrieved with the same, the appellants/plaintiffs have filed the title appeal being Title Appeal No.9 of 2017 which was decided vide judgment dated 21.11.2017 by the District Judge-XIV, Hazaribagh. The appellate court also entered into the dispute and re-casted the points to decide the same. 4. Aggrieved with the same, the appellants/plaintiffs have filed the title appeal being Title Appeal No.9 of 2017 which was decided vide judgment dated 21.11.2017 by the District Judge-XIV, Hazaribagh. The appellate court also entered into the dispute and re-casted the points to decide the same. The appellate court while considering the documents and evidences adduced on behalf of the parties came to the finding that the suit property was not purchased from the joint family fund rather it was an exclusive acquisition of Bhanu Prakash Pandey. The appellate court further found that there is no chit of paper or any document as conclusive prove that there was a joint family fund from which the property was acquired. The witnesses of the defendants have stated that Shankar Sharma was not an obedient son of Bhanu Prakash Pandey and the earnings made by him was not contributed to the family fund as he was always residing outside the house. The witnesses have clearly stated that Bhanu Prakash Pandey had acquired the property from his own earnings and it was neither an ancestral property nor joint family property. Though, in support of the contention, the appellants/plaintiffs and his witnesses in their evidence have stated that from the joint family fund the schedule property of the plaint was purchased but no substantive evidence has been brought on the record. The appellate court dismissed the appeal vide judgment dated 21.11.2017. Aggrieved with the same, the appellants have preferred this second appeal. 5. Mr. S. N. Das, learned counsel appearing for the appellants assailed the impugned judgment on the ground that the sale deed was executed only on the ground of love and affection and there is no consideration amount paid while transferring the sale deed which is not tenable in view of Section 54 of the Transfer of Property Act. 6. Having heard the learned counsel for the appellants, this Court finds that the trial court as well as the appellate court has entered into the lis and has discussed threadbare the entire evidences as well as the exhibits which were exhibited in the court below and came to the finding that the property acquired by Bhanu Prakash Sharma was not from the joint family fund. There is no chit of paper or any document to prove that there was a joint family fund from which the property was acquired by the appellants/plaintiffs. There is no chit of paper or any document to prove that there was a joint family fund from which the property was acquired by the appellants/plaintiffs. There was no substantial evidence brought on record before the trial court as well as the appellate court to prove that the land in question was purchased from the joint family fund. This Court came to the conclusion that there is no adversity in the impugned judgment. This Court further finds that there is no substantial question of law involved in this second appeal. 7. Accordingly, the second appeal stands dismissed.