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2022 DIGILAW 49 (JHR)

Prayag Sahu v. Tekman Sahu S/o Late Hulash Sahu

2022-01-06

GAUTAM KUMAR CHOUDHARY

body2022
JUDGMENT : GAUTAM KUMAR CHOUDHARY, J. 1. Defendants are the appellants who have preferred the instant appeal against the judgment and decree passed in Title Appeal No. 11/2011 whereby and whereunder the judgment and decree passed by the trial court has been affirmed. 2. Plaintiffs/respondents filed suit for declaration of the right, title over the suit land and for mandatory injunction and recovery of possession of suit land fully detailed in schedule-A of the plaint and attached map in red colour. The suit land was acquired by one Budhan Sahu who died leaving two sons namely, Hulash Sahu and Nemdhari Sahu. The genealogical table is given below: Budhan Sahu Hulash Sahu Nemdhari Sahu Tekman Sahu (P1) Ramchandra Prayag Tulsi Gouri Prasad (P2) Sahu (D2) Sahu (D1) Sahu (D3) Nemdhari Sahu died leaving Ramchandra Sahu (defendant No. 2), Prayag Sahu (Defendant No. 1), Tulsi Sahu (defendant No. 3) and Hulash Sahu. Hulash Sahu died leaving Tekman Sahu (Plaintiff No. 1), Gauri Prasad son of Tekman Sahu (Plaintiff No. 2). 3. As per the plaintiff’s case after the death of Budhan Sahu the entire property was partitioned including the suit land. During his life time, Budhan Sahu sold 26 decimals of land out of 1.91 acres to different persons. After partition Hulash Sahu and Nemdhari Sahu the defendants have acquired the land of area 82½ decimals at one lot and remaining 82½ decimals have been allotted by two lots having an area of 41¼ decimals each to plaintiff No. 1. It is alleged that the defendants by using criminal force started to dig foundation over the suit land and started construction of room (40’ North to South and 30’ East to West) which gave rise to the cause of action to file the present suit. 4. The defendant contested the suit by filing the joint written statement. It is inter-alia pleaded that there has been no partition between the parties. The suit is bad for non-joinder of the necessary parties and is also under valued. It is contended that by sale deed No. 323 dated 30.03.1943, total area of 1.40 acres of land where acquired by Budhan Sahu, whereas only 41¼ decimals have been included in the suit land and rest area have not been accounted for by plaintiff no. 1. It is contended that by sale deed No. 323 dated 30.03.1943, total area of 1.40 acres of land where acquired by Budhan Sahu, whereas only 41¼ decimals have been included in the suit land and rest area have not been accounted for by plaintiff no. 1. Tekman Sahu himself sold 4 decimals of land to one Shankar Kumar on 13.05.2000 and area of 32.1 acres of land under khata No. 27 recorded in the name of Damri Teli father of Dudhan Sahu has also not been included. In the absence of final partition the claim of exclusive possession over the suit land is not tenable. On the basis of the pleadings of the parties of the following main issues were framed: (i) Is the suit barred by law and limitation, waiver, estoppel, rest-judicata and section 34 of Specific Relief Act? (ii) Is suit bad for non-joinder and misjoinder of the necessary parties? (iii) Has the plaintiff undervalued the suit properties? (iv) Whether the plaintiffs have right, title interest and possession over the suit land? (v) Is the plaintiffs entitled to the relief sought for? 5. Learned Trial court recorded a finding that after death of Budhan Sahu, oral partition was made and as per convenience, parties took possession of their share and thereafter the defendants and plaintiff also sold their shares. It finally recorded a finding of fact the plaintiff had title over and 49¼ decimal of plot no. 139 appertaining to khata no. 49. 6. The learned Appellate Court concurred with the finding of fact recorded by the trial court, declaring right of plaintiff on suit land that came in possession of plaintiff respondent by their family Khangi Angul Batwara in which plaintiff where enjoying their right and title on part of schedule A land shown in red colour North to East 40’ and East to West 30’ which has been encroached by the defendants. 7. The appeal has been preferred mainly on the ground that the suit property is part of the property acquired on 30.03.1943 by registered Sale Deed No. 343 measuring total area of land 1.40 acres by common ancestor Budhan Sahu and without any conclusive proof of previous partition by metes and bound, suit for declaration of title and recovery of possession of land from co-sharer has been allowed which is unsustainable in law. It is argued on behalf of the appellant that partition by convenience cannot be treated as partition by metes and bound without any measurement. PW-1 Gouri Prasad who is plaintiff No. 2 in his deposition in Para-46 and 59 has clearly indicated that the length and breadth of the dispute land was not measured at any point of time. 8. This appeal is admitted for hearing on following substantial question of law:- whether the courts below have committed of error of facts, jurisdiction and law in decreeing the suit and dismissing the appeal by declaring title of plaintiff/respondent and recovery of possession in the absence of any partition by metes and bound and only on the basis of possession of convenience in view of the facts that both the parties are claiming their right, title and interest over the land from the common predecessor-in-interest-Budhan Sahu. 9. Partition is a severance of joint status and all that is necessary to constitute partition is a definite and unequivocal indication of the intention of a member of joint family to separate himself from the family and enjoy his share in severalty but this intention has to be communicated to other members of the family. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in broader sense. A disruption of joint family status by a definite and unequivocal intention to separate implies separation in interest and in right, although, not immediately followed by a de-facto actual division of the property. In case where an ancient partition is pleaded there can be no precise evidence regarding the actual partition. The evidence of partition has to be culled from the manner in which the parties have been living, how they have been dealing with the joint family property and the income arising therefrom. Determination of the question, whether the parties are joint or separate is beset with difficulties, as the party claiming partition looks forward to gain from it, and those resisting it apprehend loosing some share or settled possession of their property. Practically there are cases where one or more of the coparcener after having sold his share acquired in an oral partition seeks partition. Separation in mess, income and dealing with the property independently can be an evidence of partition. Partition can be oral, it can be partial between the coparceners. Practically there are cases where one or more of the coparcener after having sold his share acquired in an oral partition seeks partition. Separation in mess, income and dealing with the property independently can be an evidence of partition. Partition can be oral, it can be partial between the coparceners. It is of course obvious that a mere intention to separate cannot have the effect of a separation, unless such intention is expressed to as to disclose an unequivocal intention of separation. This is a question of fact dependent upon the circumstance of each case. The mere separation from commensality has not, as a necessary consequence, effect of a division of the joint undivided property, though it is a circumstance which is prima-facie evidence of separation. Even a formal division between some members could not operate as separation of the rest inter-se, unless they had intended to separate. In Abdul Wahab Khan vs. Tilakdhari Lal, AIR 1927 PC 20817 the following facts were admitted as evidence of partition: “(a) That the rents for definite and specific plots of land have been paid exclusively to the several proprietors for so long a period without dispute, and without any subsequent adjustment or distribution. (b) That there has been not only this appropriation of rents for separate plots; but, when some of these were compulsorily acquired for a railway in 1903 under the Land Acquisition Act, the compensation moneys were separately paid and appropriated by the separate proprietors who had been previously collecting the rents in respect of those lands. (c) When a record-of-rights was prepared of these villages under the Bengal Tenancy Act, and finally published in 1903, the plots referred to in (1) and (2) were recorded as being the separate property of their respective landlords, without any dispute or controversy on the part of the others. (d) The very appearance of these separated holdings, i.e., the plots from which rents are collected exclusively, on the map prepared for the purposes of this case, which lie, not in three compact blocks, but in many cases isolated and scattered, seems to negative the theory that the arrangement for exclusive collection of rent was for convenience of management.” In Sita Ram Prasad vs. Mahadeo Rai, AIR 1980 Pat. 254 at pp 256-257 it has been held that under the Hindu Law there can be an oral partition and once a partition is alleged, then the law will presume unless something is proved to the contrary, that there was a complete partition between the members of the family. The Privy Council in Chowdhry Ganesh Dutt vs. Musst. Jewach Thakoorain, 1903 SCC Online PC 30 held that the intention of the parties as to separation can only be inferred from their acts. The question is one of fact to be decided with due regard to cumulative effect of all the facts and circumstance. It was observed as follows: Cesser of commensality is an element which may properly be considered in determining the question whether there has been a partition of joint family property, but it is not conclusive [Mussumat Anundee Koonwur vs. Khedoo Lal, 14 Moo. I.A. 412 (1872)]. It is therefore necessary to consider whether the evidence in other respects supports or negatives the theory that the cesser in this case was adopted with a view to partition in the legal sense of the word. 10. Thus, there can be oral or a written unregistered partition. The severance of status is to be inferred from the conduct of the parties after such a partition. Both the Courts below have discussed at length the evidence of partition and have recorded a concurrent finding of fact on the point. Among other evidence discussed on point of partition is Ext.A adduced into evidence on behalf of the defendants which is registered sale-deed executed by Defendant no. 1 which mentions about partition. Ext.A/1 also refers to allotment of share and specific possession of plaintiff on the Northern side. Defendant Witness no. 1 has stated in Para-2 of cross-examination that Nemdhari had three sons who were separate in food, living and cultivation. It has also been stated by this witness that after the death of Budhan Sahu 82.05 decimal each came in the share of Hulash and Nemdhari. DW-1 who is none other but the Appellant No. 1 (DW-1) himself stated in Paras 18, 19 that out of 82.5 decimals, Hulash father and grandfather of the plaintiffs got share in two portions and defendant appellants got their share in the middle portion of the plot. DW-2 has also deposed to the same effect in Para 12. 11. DW-1 who is none other but the Appellant No. 1 (DW-1) himself stated in Paras 18, 19 that out of 82.5 decimals, Hulash father and grandfather of the plaintiffs got share in two portions and defendant appellants got their share in the middle portion of the plot. DW-2 has also deposed to the same effect in Para 12. 11. I find that the learned Courts below have recorded a definite finding of fact that there had been oral partition and severance of status in their mess, food and were living separately. The property was being dealt with separately by the parties and lands were disposed of claiming them to have been acquired by partition. Severance of status, by separate possession, living and dealing with property continued without any demur or objection from the side of the defendants, till the filing of this case by the plaintiffs. 12. For the reasons stated above, I do not find any error in the decision on question of law so as to warrant interference in appeal. I confirm the concurrent finding of fact. 13. The appeal stands dismissed. 14. Consequently, I.A. No. 1425 of 2020 and 11110 of 2018 stand disposed of.