Lal Babu v. Akhilesh Singh

Mungeshwar Sahoo, J.:— The defendants have filed this First Appeal against the preliminary judgment and decree dated 10.08.1976 passed by the learned 2 Additional Subordinate Judge, Jehanabad in Partition Suit No. 406 of 1973/28 of 1976 whereby the learned Sub Judge has decreed the plaintiff-respondent's suit for partition to the extent of 1/4th share.

2. The plaintiffs-respondents filed the suit claiming partition of 1/4 share in the property described in Schedule B, C and D of the plaint. Prayer has been made to declare the order of Commissioner dated 28.11.1972 in Revision Case No. 119 of 1971 as illegal, void and not binding on the plaintiff.

3. The plaintiffs claimed the relief aforesaid alleging that Kalpoo Singh had four sons namely Dudheshwar Singh, Sheoprasad Singh, the plaintiff No. 1, Ram Prasad Singh, defendant No. 7 and Hari Singh, defendant No. 8. Dudheshwar Singh died in the year 1940 and his sons are defendant No. 1 and 2. Their sons are defendant Nos. 4, 5 and 6. The plaintiff No. 1's sons are plaintiff Nos. 2, 3 and 4. The branch of defendant No. 7 and 8 are defendant Nos. 9 to 13. The genealogy has been given in Schedule A of the plaint.

4. According to the plaintiffs, the ancestral lands are recorded in the name of Kalpoo Singh which have been described in Schedule B whereas the acquired lands out of the joint family fund in the name of different members are at village Koil Bhupat, Kharsa Raj and Ismailpur. These acquired lands have been described in Schedule C of the plaint and the movable property is described in Schedule D. After death of Dudheshwar Singh in the year 1940, there was disruption between three brothers of Dudheshwar Singh and sons of Dudheshwar Singh in the year 1963. In this disruption, the three sons and grandsons of Kalpoo Singh separated themselves in mess, business and worship at four places whereas the agricultural lands and houses remained joint. The produce used to be divided in Khalihan. The parties out of their own earning purchased lands in their names respectively. Plaintiff No. 1 also acquired some lands through gift from his mama, Sheo Sharan Singh which is separate property of plaintiff No. 1.

5. The further case is that the defendant No. 1, because of greed, filed application before Sarpanch, Gram Panchayat alleging that they are living separately, therefore, the demand may be separated who allowed the application of defendant No. 1 and mutation was made in the year 1967 and ultimately the said order was confirmed by the Commissioner. However, the parties are still joint and are in joint cultivating possession on the lands mentioned in Schedule B and C. There is unity of title and possession.

6. On being noticed, the defendant Nos. 1, 4 and 5 filed contesting written statement. Besides taking various legal and ornamental pleas mainly they contended that Dudheshwar Singh, father of defendant Nos. 1 and 2 was handicapped, therefore, plaintiff No. 1 was the karta of the family after death of Kalpoo Singh. After death of Dudheshwar Singh, there was quarrel between the females, therefore, partition took place in the year 1958 and 1959. These defendants separated from other members of the family by taking their 1/4 share measuring total 5 bighas 18 kathas 9 dhurs in village Koil Bhupat and 2 kathas of land in village Ismailpur. Subsequently, there was full partition between the plaintiffs and other defendants in the year 1963 and in this partition, the defendants were allowed to continue with the property mentioned above detailed in the written statement. The share of the defendant No. 1 in village Chakia and Kharsa Raj was given to defendant No. 2 and others in adjustment of 1/4 share. The defendant No. 2, plaintiff and defendant Nos. 7 and 8 took their share in village Parsi Chakia in the gifted lands besides the lands of the villages keeping in view the value of the lands. The lands allotted to the defendant no. 1 were not fertile but because of hard labour work the defendant No. 1 improved his lands. The orders passed by the Sarpanch and the Commissioner are correct as there had already been partition.

7. So far gifted property is concerned, the defendant's case is that in fact, mama gifted the property to all his bhaginas and not only to the plaintiff. The properties purchased are all joint family property. The parties have got their separate houses. The defendants have also denied all other allegations made by the plaintiffs.

8. 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 got cause of action and right for this suit?

III. Is the suit barred by law of limitation?

IV. Is the suit bad for misjoinder of parties?

V. Is the suit bad for non-joinder of lands of Parsi Chakia?

VI. Is the suit not maintainable accordingly to provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956?

VII. Is the plaintiff's case of jointness and their claim of ¼ share in the suit property proper, legal and valid?

VIII. Is the defendant's case of partition of the joint family properties and allotment of lands given in written statement true?

IX. Is the order of Commissioner legal?

X. Are the plaintiffs entitled any relief? If so to what relief?

9. The learned court below after discussing the evidences and materials recorded finding that the defendants failed to prove previous partition alleged by them. The learned court below also held that the suit is not barred by the provisions of Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. On these findings, the learned court below decreed the plaintiff's suit.

10. The learned counsel, Mr. Binod Kumar Singh appearing on behalf of the appellants submitted that the plaintiffs-respondents suppressed the material fact and by playing fraud on the court has obtained the decree for partition. The plaintiff himself pleaded separation in the year 1958-59. The defendant pleaded that in fact there was not only disruption but in fact, a complete partition between the parties and accordingly, the jamabandi has been opened and the parties are paying the rents to the State. The court below wrongly held that the defendants failed to prove partition. The defendants have produced several documents in support of their previous partition and also the documents to show that there was inter se partition between three branches i.e Sheo Prasad Singh, Ram Prasad Singh and Hari Singh. When there was no partition according to the plaintiffs then there was no question of partition between these three branches arises. Moreover, the parties were selling the property treating the lands in their possession to be their exclusive property. The witnesses examined on behalf of the plaintiffs themselves admitted that there was partition by metes and bounds and that all the parties have their separate residential houses. The learned counsel further submitted that even the gifted property was partitioned between three branches i.e plaintiff, defendant No. 7 and defendant No. 8 wherein no share was given to these defendants because these defendants have already separated themselves by taking their shares. If the property was gifted to plaintiff No. 1 only then why the said property was partitioned between three branches. If the properties are joint and the parties are joint then why this property alone was partitioned between three branches. If there was partition with respect to some property then the presumption of jointness will not be available to the plaintiff. In such circumstances, the presumption will be that all the properties have been partitioned. In the present case, since there was partition and 1/4 share was given to the defendants in one village, the lands of other villages were adjusted in the share of three branches. The court below therefore, has misappreciated the oral as well as documentary evidences.

11. The learned counsel further submitted that during the pendency of this appeal the plaintiffs-respondents and the defendants-respondents belonging to the branch of Ram Prasad Singh, defendant No. 7 and Hari Singh, defendant No. 8 have all sold many properties which are suit lands and in the sale deeds, they clearly admitted that there had already been previous partition between four sons of Kalpoo Singh. These sale deeds were not within the knowledge of the appellants earlier. When the appellants came to know about these facts, interlocutory applications have been filed under Order 41 Rule 27 C.P.C The earliest one is filed on 27.10.1997 The next one is filed on 24.06.1998 being I.A No. 6457 of 1998. The third one is filed on 16.05.2011 being I.A No. 3731 of 2011 and the latest is filed on 29.06.2016 being I.A No. 5195 of 2016. In these applications, documents have been annexed to show that the plaintiffs-respondents admitted previous partition. Many documents are old documents and many are recent documents which were not available at the time of trial. These applications are directed to be heard at the time of hearing. The learned counsel further submitted that since these documents clearly show that the plaintiffs-respondents and others clearly admitted previous partition, as claimed by the defendants-appellants, these documents are relevant for the determination of real controversy between the parties. According to the learned counsel, admission is the best evidence. Although, these I.As have been filed long ago but neither counter-affidavit nor any reply has been filed by the respondents and moreover, nobody is appearing to controvert the case of the appellants. Over and above these facts, the documents are registered documents. The learned counsel, therefore, submitted that the First Appeal be allowed and the impugned judgment and decree be set aside and the plaintiff's suit for partition be dismissed.

12. As stated above, nobody appeared on behalf of the respondents.

13. In view of the above submission of the learned counsel for the appellants, the point arises for consideration is as to “whether there is unity of title and possession between the parties with respect to suit property” or “whether there has already been partition as alleged by the defendants-appellants” and “whether the impugned judgment and decree are sustainable in the eye of law?”

14. The genealogy is admitted by the parties. In the plaint, the plaintiffs clearly pleaded that there was disruption in the family in the year 1963 whereas according to the defendants there was complete partition. In support of their respective cases, both the parties adduced oral as well as documentary evidences in support of their cases. Let us examine the witnesses of the plaintiffs-respondents.

15. P.W.4 is Kameshwar Singh who is defendant No. 2. This P.W.4 i.e defendant No. 2 is the step brother of defendant No. 1. Both are sons of Dudheshwar Singh but from different mothers. He has only stated that both the parties are joint and still cultivation is done jointly. In the cross-examination at paragraph 8, he has admitted the fact that there are separate five residential houses and he has described which party resides in which house. At paragraph 14, he has admitted the case that at Chakia there is no joint family land. After separation also, none have purchased the land at village Chakia. Sheo Prasad Singh (plaintiff) was the karta of the family and he is still karta. At paragraph 19, he has stated that he cultivates separately at village Koil Bhupat. P.W.5 has also admitted that plaintiff is the karta. It may be mentioned here that this is the case of the plaintiff. P.W.7 is the plaintiff himself. The plaintiff himself admitted that there are five houses and there are separate “nad khuta” also. P.W.8 has only stated that the parties are joint. The other witnesses are not material witnesses.

16. Now let us consider the oral evidences of the defendants. D.W.3 is co-villager. He has stated that there was partition between the parties in the year 1958-59 and since then everything is separate. D.W.4 has also stated that there was complete partition between both the parties. D.W.5 is the defendant No. 1. He has fully supported his case pleaded in the written statement. It is not necessary to reiterate here.

17. The oral evidences produced by the parties as stated above are oath versus oath. The plaintiff's witnesses stated that the parties are joint whereas the defendant's witnesses have stated that there had been partition. Now let us consider the documentary evidences.

18. Exhibit E series are the order sheet in mutation case. Exhibit I is the schedule of the properties showing partition between four branches which is dated 18.04.1966 on the basis of which the application was filed for opening of separate jamabandi. In this schedule, the gifted property of village Chakia is included wherein share to the step brother of the appellant has been given namely Kameshwar Singh. If the gifted property was the property of plaintiff No. 1, there was no question of giving share to step brother of the defendant No. 1 arises. Exhibit J is Register II which is with respect to the acquired property. This Register II is separately prepared in the name of four branches.

19. From the discussion of the evidences of the plaintiffs, it appears that there is no explanation at all as to why the gifted property and the acquired property have been partitioned between the parties. It is pleaded by the plaintiffs that some properties are gifted property and acquired property by the plaintiff No. 1. Except this pleading, no evidence has been produced to show the source of income from which the property could have been acquired. Moreover, as we have seen the evidences that the plaintiff's witnesses themselves also admitted that plaintiff no. 1 was the karta. On the contrary, the documents have been produced by the defendants to show that those properties had also been partitioned without giving share to the present appellants and shares have been given to the brother of the appellants. This fact shows that the present appellants had already separated themselves after taking their due share in the joint family property. Therefore, when there was partition, the appellants were not given share in the properties. Thus, I find force in the submission of the learned counsel for the appellants.

20. From perusal of the impugned judgment, it appears that the learned court below has given much emphasis on the report of Anchal Amin, Sarpanch, Choukidar etc. and the orders passed in mutation matters. It may be mentioned here that those orders or proceedings are not very material for deciding the question as to whether there had been partition by metes and bounds or not. However, these facts clearly show that the parties are in litigating term since after 1963. The partition schedule has been produced by the defendant-appellants which is of the year 1966. The witnesses have only stated that the cultivation is done jointly and produce is partitioned. Except this bald statement, no reliable evidence has been produced to show as to whether the produce was being partitioned in all the four villages or at one village. When the parties were in litigating term since 1966, how the cultivation was done at one place jointly. There is no explanation at all. On the contrary, the witnesses of the plaintiffs have admitted the separate house of the parties. The appellants are residing in a separate village.

21. Over and above all the aforesaid statements and evidences, the defendant-appellants have filed four interlocutory applications. As stated above, no reply or counter-affidavit has been filed by the respondents. Now let us consider the interlocutory applications one by one. The Hon'ble Supreme Court in the case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 = 2013 (1) PLJR 48 (SC) has held that the proper stage of hearing of the application for additional evidence is at the time of hearing of the appeal.

22. The first application under Order 41 Rule 27 C.P.C has been filed by the appellants on 27.10.1997 A registered sale deed dated 27.08.1992 has been annexed with this interlocutory application. Mamla Singh, son of plaintiff no. 1, who himself is plaintiff no. 2, has sold a portion of schedule B property i.e plot no. 874 of Koil Bhupat. So far this sale deed is concerned, it only shows that some properties have been sold by the plaintiffs which is also included in the partition suit. In my opinion, therefore, this sale deed is not relevant at all for deciding the question of partition or no partition. Thus, this application under Order 41 Rule 27 is rejected.

23. I.A No. 6457 of 1998 was filed on 24.06.1998 wherein also a registered sale deed dated 01.04.1998 is annexed which shows that defendant No. 9 and others, Hirda Singh, branch of Ram Prasad Singh sold part of gifted property and in the sale deed there is recital that there had been partition with respect to the property. This sale deed is uncontroverted sale deed as it has not been denied. Therefore, this appears to be a relevant document which has been executed by the defendant admitting previous partition with respect to gifted property.

24. I.A No. 3731 of 2011 is another I.A filed under Order 41 Rule 27 C.P.C wherein copy of plaint of Partition Suit No. 132 of 2008 has been annexed. Pradeep Narain Singh plaintiff no. 4 is the plaintiff in this partition suit and defendants are son of plaintiff no. 2 and Tribeni Singh, the plaintiff no. 3. In this plaint, the present appellants have not been made party. At paragraph 3, the plaintiff pleaded that out of joint family fund and nucleus, some property was purchased and four sons of Kalpoo Singh were owner of total 17 acres. At paragraph 4, the plaintiff admitted that they separated in mess, business and worship in 1956 and they separated finally by memorandum of partition dated 13.05.1965 All the brothers and the sons of Dudheshwar Singh have signed the memorandum of partition. At paragraph 5, it is stated that according to the said partition, the parties came in possession separately over their respective schedules. The lands allotted in the takhta of Sheo Prasad Singh, plaintiff no. 1 in the suit land on which the plaintiff claimed partition. As stated above, this is the plaint filed by one brother against the other two brothers and the parties are sons of plaintiff no. 1, since deceased. The question is if there had been no partition between four brothers, how this partition is claimed by inter se plaintiffs.

25. The next I.A is I.A No. 5195 of 2016 filed on 29.06.2016

(a) Annexure 1 is the registered sale deed dated 29.02.2016 by which Sudarshan Singh, defendant No. 10 son of Ram Prasad Singh has sold schedule C property and in this sale deed admitted previous partition between the parties.

(b) Annexure 2 is the registered sale deed dated 20.04.2012 whereby Suresh Singh, defendant No. 13 and others son of Hari Singh, defendant No. 8 sold part of purchased land and in this sale deed they also admitted previous partition.

(c) Annexure 3 is the registered sale deed dated 27.08.1992 executed by defendant No. 2 step brother of defendant No. 1 with respect to portion of schedule B property and in this sale deed also he admitted previous partition between the parties.

(d) Annexure 4 is the registered sale deed dated 02.04.2016 whereby son of Mamila Singh, plaintiff No. 2 sold portion of schedule C property and in this sale deed, he admitted partition between his brothers.

(e) Annexure 5 is the application dated 10.01.1998 filed by the plaintiffs for initiating 147 Cr.P.C proceeding wherein it is stated that the parties have got their separate house and the dispute is with respect to Rasta.

26. It may be mentioned here that all these documents were not available during the trial and moreover, these documents are the documents of the plaintiffs-respondents and the appellants had no knowledge earlier. During the pendency of this appeal, these documents have been executed by the plaintiffs-respondents wherein they clearly admitted the previous partition between four branches i.e sons of Kalpoo Singh and even they admitted inter se partition between themselves. It is not their statement in the sale deeds or the plaint or the application that partition is effected after disposal of partition suit. In all the sale deeds, the application, the plaintiffs themselves admitted previous partition between the parties i.e prior to institution of the suit for partition. The appellants claimed previous partition in the year 1958-59 whereas the plaintiffs admitted in the plaint filed by them for inter se partition that there had already been partition between four brothers in 1965. Now, therefore, only dispute between the parties is in which year partition took place. It may be mentioned here that this partition suit is of the year 1973. Therefore, whether partition took place in 1958-59 or in the year 1965, it is irrelevant because prior to the present partition suit the parties have already partitioned the suit property.

27. This Court in the case of Dharm Raj Yadav v. Karmi Kumari, 2013 (2) PLJR 818 relying on the decisions of the Supreme Court in the case of Union of India (supra), AIR 1951 Supreme Court 193 (Arjun Singh v. Kartar Singh), AIR 1963 Supreme Court 1526 (K. Venkataramiah v. A. Seetharama Reddy) held at paragraph 22 and 23 as follows:

“22. Admittedly, at the time of pendency of the suit, the documents, i.e, the sale deeds executed by the plaintiffs during the pendency of the appeal were not in existence. In other words, all the sale deeds executed by the plaintiffs and/or, their heirs during the pendency of the appeal are subsequent documents. Although these interlocutory applications were filed as far back as in the year 2008, 2009, 2010 and 2011 serving a copy of the same on the other side, no reply has been filed countering the allegations made by the appellant. In other words, the genuineness or the execution of the sale deeds by the plaintiffs during the pendency of this appeal is not denied. The only objection raised by the respondent is that the sale deeds are secondary evidence, therefore, the same cannot be admitted to evidence. In my opinion, this is nothing but a technical objection. The respondents are not denying the genuineness of the documents. They are not saying that they have not executed the documents.

23. From the above discussion, it appears that at the time of filing the plaint, the plaintiff-respondents concealed the true facts about previous partition and obtained a decree in their favour. However, during the pendency of the appeal, they admitted the true fact by executing registered sale deeds. They have not explained the admission made by them in the registered sale deeds about previous partition. In my opinion, in view of the above facts, it appears to me that the case of the plaintiff-respondents is based on falsehood and they obtained a decree by suppressing the true fact and thereby played fraud on the Court.”

28. The fact of the present case at our hand is substantially the same fact as involved in the decision quoted above.

29. The Hon'ble Supreme Court in the case of Union of India (supra) and AIR 1960 Supreme Court 100 (Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi) has held that admission made by party though not the conclusive, is a decisive factor in a case unless the other party successfully withdraws the same or proves it to be an erroneous. In the present case, at our hand, the admission made by the plaintiffs-respondents in the registered sale deeds executed during the pendency of the appeal referred to above there is clear unambiguous admission of the plaintiff and their heirs to the effect that there had been partition between four brothers after the death of their father.

30. In view of my above discussion, the three I.As filed by the appellants are hereby allowed and on the basis of the evidences discussed above, I come to the conclusion that the appellants have been able to prove that there had already been partition as claimed by the defendants-appellants. There is no unity of title and possession between the parties. It appears that the court below has not properly appreciated the evidences as discussed above and moreover, the documentary evidences produced by the appellants by way of additional evidences were not available during trial. Thus, the finding of the learned trial court is hereby reversed.

31. In the result, this First Appeal is allowed. The impugned judgment and decree are set aside. The plaintiffs-respondent's suit for partition is hereby dismissed.