Jagdish Chandra Roy v. Smt. Urmila Devi(widow)

however in his written statement has supported the claim of the plaintiff for partition. In his written statement the defendant no.1 has come out with the case that the plaintiff is entitled to only 4 annas share in the suit property and not to 5 annas 4 pie as claimed by him. It has been further stated in the written statement that the land of Khata No.72 as mentioned in the suit properties are his separate and self acquired property which he has acquired by way of settlement and the land of Khata No. 45 are not joint family property. The defendant has also stated that there had already been partition between the parties 50 years ago.

The learned court below in view of the pleadings of the parties has framed seven issues out of which issue no.5 and 6 which were the material issues are as follows:- Issue No.5:- Is the allegation of defendant no.1 regarding the previous partition true? Issue No.6:- Whether the plaintiff has got 5 anna 4 pie share in the lands in the suit?

After scrutinizing the evidence of the parties, the learned court below has decided the aforesaid issues in favour of the plaintiff but has held that the plaintiff is entitled only to 4 annas share. 3 Patna High Court FA No.703 of 1976 dt.07-04-2013 P3 / 14

Mr.S.S.Dwivedi, the learned senior counsel appearing for the defendant no.1-appellant has submitted that the appellant is now confining his appeal only to the dispute with regard to the land of Khata No.45 and Khata No.72. He has submitted that the decree with regard to other suit properties are not being assailed in this appeal. It has been contended that admittedly the Khatian of the land of Khata No.45 has been prepared in the name of Kamlanand Ray who is a stranger to the joint family of the plaintiff and the defendants and as such his land in Khata No.45 could not have been made subject matter of partition. Canvassing the well settled principle that if there exists apparent title over a suit property, subject matter of partition, in a stranger to the family, the plaintiff will have to seek displacement of the said title by seeking appropriate relief in the suit which if granted would only then entitle the plaintiff for partition of the said property.

Per contra, Mr. Raghib Ahsan, the learned senior counsel appearing on behalf of the plaintiff-respondent no.1 has pointed out that several interlocutory applications have been filed in this appeal by the parties including the appellant and the averments made in those interlocutory applications as well as the counter affidavits filed therein will reveal that the appellant has accepted the lands of Khata No.45 and Khata No.72 to be joint family properties. The reliance has been placed in particular on I.A.No.6229/2005, 6230/2005 and the counter affidavit filed in I.A.No.2125/2001. It has been further pointed out that I.A.No.7667/12 has been filed by the respondent no.1 under Order 41 Rule 27 CPC seeking permission to adduce additional evidence in this appeal by bringing the sale deed executed by the appellant with regard to lands of Khata No.45 and also the memo of appeal of the F.A. 160/2006 filed by the appellant against the final decree. It has been contended that the averments made in all these petitions, sale deeds and memo of appeal will necessarily lead to the inference that the appellant has accepted the lands of Khata No.72 and Khata No.45 to be joint family properties. The reliance has been placed upon the Survey purcha (Ext.2 series) in the name of the plaintiff as well as the defendant to show that the purcha has also been granted with respect to the lands of Khata No.45 and Khata No.72. It has thus been submitted on the basis of the aforesaid documents that in view of the admissions made by the appellant, his plea, that the lands of Khata No.45 is not a joint family property and land of Khata No.72 is his personal property, is not fit to be 5 Patna High Court FA No.703 of 1976 dt.07-04-2013 P5 / 14 accepted. On the basis of these submissions, the learned senior counsel has prayed that this appeal be dismissed.

In view of the rival contentions of the parties the following points emerge for consideration:- (i) Whether the lands of Khata No.45 and Khata No.72 as mentioned in the suit properties are the joint family properties of the parties to the suit and whether the plaintiff is entitled to a decree for partition with regard to those lands also? (ii) Whether the impugned judgment and decree can be sustained in law as well as on facts for the lands of Khata No.45 and Khata No.72?

For convenience sake both the points are taken up for adjudication together. The appellant has confined his assail to the impugned judgment and decree only with regard to the lands of Khata No.72 and Khata No.45of village Dhakia, P.S.-Araria, District- Purnea. From the perusal of the description of the suit properties as given in schedule A of the plaint, it is manifest that altogether

14.63 of land recorded in different plots of Khata No. 72 is in dispute and similarly altogether 9.73 acres of land of Khata No.45 is in dispute. There is no specific averment in the plaint by the plaintiff with regard to these two khatas except that in para 7 of the plaint, the reference to schedule A of the plaint containing the description of the joint family properties has been made which includes the lands of Khata No.72 and 45. In his additional written statement the contesting defendant no.1 has specifically stated that the land of Khata No. 72 originally belonged to the family of the parties but it was sold in execution of a rent decree and was purchased by Srinandan Rai. It has been further stated that much after the partition between two surviving branches of the family, the 6 Patna High Court FA No.703 of 1976 dt.07-04-2013 P6 / 14 defendant no.1 took settlement of the land of Khata No. 72 and as such it is his separate and self acquired properties. With regard to Khata No.45 it has been specifically stated in the additional written statement that the lands of this Khata belongs to Kamlanand Rai(a stranger to the family) and as such the same is not joint family properties for which a partition can be effected.

In support of his submissions the defendant no.1 has led documentary evidence besides oral evidence. Ext..kk/2 is recent survey khatian relating to Khata No.72 and it shows that this khata no.72 has been exclusively prepared in the name of the defendant no.1. From the impugned judgment also it appears that the entire record of Rent Execution Case No.2208/1936 had been called for and the learned court below after perusal of the same has found that the rent decree had been obtained by the ex-landlord against the predecessors of the parties and in execution thereof the land had been auction sold and purchased by Srinandan Roy. The sale certificate has also been brought on record as Ext. (V) which shows that the same has been prepared in the name of the auction purchaser Srinandan Roy. The Ext. r and Ext. Fk show that the delivery of possession had also been given to the auction purchaser Srinandan Roy through the process of the Court. Ext. ([k) is the rent receipt for the year 1350 Fasli corresponding to 1943 granted by the ex-landlord in favour of the auction purchaser Srinandan Roy in respect of the auction purchased land. The defendant no.1 has also produced Amalanama in support of his claim that altogether 14.42 acres and 6 Karees of land of Khata No.72 had been settled with the defendant no.1 by the auction purchaser Srinandan Roy. The Ext. ‡ is the Return filed by the Srinandan Roy, the ex- tenure holder, under Section 3 of the Land Reforms Act, 1950 in respect of 14.42 acres and 6 Karees of land in the name of defendant no.1 Jagdish Chandra Rai. It appears from the impugned judgment that the original copy of the Return had also 7 Patna High Court FA No.703 of 1976 dt.07-04-2013 P7 / 14 been called for in learned court below. The defendant no.1 has also produced Ext. [k /1 to [k /7 which are the rent receipts for the 14.63 acres of land of Khata No.72 granted by the State of Bihar in his favour. After scrutiny of these evidence the learned court below has rightly come to the conclusion that the land of Khata No.72 of village Khakia is separate and self acquired properties the defendant no.1 Jagdish Chandra Rai.

The learned court below, thereafter has proceeded to consider the validity of the settlement made by the auction purchaser Srinandan Roy in favour of defendant no.1 and has come to the finding that the settlement in favour of defendant no.1 was not bonafide and for consideration and thereafter relying upon the deposition of PW 3 and 4 has come to the finding that the land of Khata No. 72 is in joint cultivation of the parties and on this basis has discarded the case of the defendant no.1 that the land of Khata No.72 is separate and self acquired properties. The learned court below, however, before recording these findings has not adverted to the validity of the auction sale, the sale certificate and the delivery of possession of the land of Khata No.72 in favour of the auction purchaser Srinandan Rai and ignoring the same has come to conclusion that the land of Khata No.72 is joint family property in joint possession of the parties to the suit.

Learned senior counsel for the appellant has submitted that the finding by the learned court below with regard to Khata No.72 cannot be sustained as there was no pleading to the effect that the settlement in favour of defendant no.1 was not bonafide and valid and the auction purchaser had not acquired title and possession over the auction sold land. It has also been submitted that there is absolutely no cogent evidence to establish that the lands of Khata No.72 has been in joint cultivation of the parties.

It is manifest from the plaint that the plaintiff has not challenged the 8 Patna High Court FA No.703 of 1976 dt.07-04-2013 P8 / 14 auction sale of the land of Khata No.72 and the settlement by the auction purchaser Srinandan Roy of the 14.63 acres of land of Khata No.72 in favour of defendant no.1. Even when the defendant no.1 has made specific claim in that regard, still no amendment has been sought by the plaintiff in the plaint. From the deposition of the plaintiff examined as P.W.10 it does not appear that any statement challenging the auction sale or settlement made in favour of defendant no.1 has been made. The plaintiff has also not deposed that the settlement of the land of Khata No.72 was taken from the auction purchaser in the name of the defendant no.1 out of joint family fund. The return (Ext. ‡) as well as the rent receipts Ext. [k /1 to [k /7 reveal that the settlement in favour of defendant no.1 has been recognized by the settler and thereafter by the State of Bihar who accepted him to be the Raiyat of the settled 14.63 acres of land of khata No.72. From the judgment it does not appear that any specific issue has been framed with regard to the settlement in question. In this view of the matter, the learned court below has definitely made out a third case by holding that the settlement of the land of Khata No. 72 in favour of the defendant no.1 was not bonafide and for consideration and further that the settled land are the joint family property. Such course is not permissible in law as laid down by the Apex Court in the case of Bachhaj Nahar Vs. Nilima Mandal & Ors., AIR 2009 SC 1103.

Learned senior counsel appearing on behalf of the plaintiff-respondent also could not point out from the pleading as well as the deposition of the plaintiff that the auction sale of the land of Khata No.72 or the settlement in question in favour of the defendant no.1 by the auction purchaser has been challenged and the settlement has been ever claimed to be joint family acquisition.

From the documentary evidence as discussed above, it is clear that the land recorded in Khata No.72 had earlier been auction sold in execution of the 9 Patna High Court FA No.703 of 1976 dt.07-04-2013 P9 / 14 rent decree and purchased by Srinandan Roy. Therefore, in any view of the matter, the said land no more remained the joint family property of the parties to the suit and in absence of the case to the contrary by the plaintiff, the same cannot be treated to be the joint family property. The conclusion is, therefore, irresistible that the lands of Khata No. 72 is the separate and self acquired properties of the defendant no.1 and the finding by the learned court below that the settlement in favour of the defendant no.1 was not bonafide and for consideration and further that it is joint family property cannot be sustained.

From the perusal of the survey Khatian Ext. .kk /3 it is manifest that the Khata No.45 has been prepared in the name of Kamlanand Rai and Padam Lal Rai and the total land recorded in the said Khata is 9.73 acres. The defendant no.1 in his additional written statement has come out with a specific case that the land of Khata no.45 is not the joint family property and it belongs to Kamlanand Rai. It has not been disputed by the plaintiff that Kamlanand Rai and Padam Lal Rai in whose name the Khata No.45 has been prepared are strangers to the family of the parties to the suit. But, there is no pleading in the plaint stating the facts necessary to displace the apparent title of Kamlanand Rai and Padam Lal Rai and treat the land of Khata No.45 as joint family property of the parties. The said Kamla Nand Rai and Padam Lal Rai have also not been impleaded as parties in the suit even when the entries in the survey khatian carries the statutory presumption of correctness and the plaintiff in his deposition has also admitted his awareness of these entries.

The learned court below, however, has come to the finding that this land has been wrongly recorded in the name of Kamlanand Rai and is in fact the joint family property of the parties to the suit. Evidently, there is no material in pleading and evidence to support the said finding which becomes further 10 Patna High Court FA No.703 of 1976 dt.07-04-2013 P10 / 14 vulnerable when no such relief has been sought for by the plaintiff against the apparent title of Kamla Nand Rai and Padam Lal Rai in view of entries in Khata No.45 who have also not been impleaded as parties in the suit. The learned court below has again made out a third case.

At this juncture, the submission by the learned senior counsel for the plaintiff respondent is that the defendant no.1 appellant has filed I.A.No. 6229/05 and I.A.No.6230/05 and counter affidavit to I.A.No. 2125/01 wherein the statements have been made which show that even the defendant no.1 has accepted that the land of Khata No.45 to be a joint family property. By order dated

23.07.2007 the aforesaid two interlocutory applications have been directed to be heard at the time of final hearing of the appeal. The counter affidavit in I.A.No.2125/01 related to the matter of appointment of a receiver at the instance of the plaintiff-respondents which had already been disposed of. The learned senior counsel has further pointed out that another I.A.No.7667/12 has been filed on 21.11.12 on behalf of the respondents under Order 41 Rule 27 CPC for bringing on record some documents as additional evidence. It has been submitted that the documents sought to be adduced as additional evidence are the sale deed executed by the defendant no.1 appellant whereby he has sold parts of the land of Khata No.45, and also the memo of F.A.No.160/06 filed by the defendant no.1 appellant against the final decree in this suit wherein he has made statements which suggest that he has accepted the land of Khata No.45 as his own land. On the basis of these documents it has been contended that now the defendant no.1 appellant are estopped from contending that the land of Khata No.45 is not a joint family property.

The learned senior counsel appearing on behalf of the appellant, however, has sought permission to withdraw the I.A.No. 6229/05 and 11 Patna High Court FA No.703 of 1976 dt.07-04-2013 P11 / 14 I.A.No.6230/05. It has been submitted by the learned senior counsel that the statements made in these two interlocutory applications and in the counter affidavit to I.A.No.2125/01 have obviously been made after the impugned judgment and decree and during the pendency of this appeal. It has been contended that those statements cannot qualify to be the admissions by the appellant. It has been further submitted that the prayer to adduce additional evidence also cannot be allowed as in absence of the relevant pleading no evidence can be entertained. It has been pointed out that the plaintiff-respondent no.1 has not prayed for any amendment in the plaint and as such the prayer for adducing additional evidence in support of a fact which has not been pleaded cannot be entertained.

After hearing the parties and considering the submissions, it is clear that even taking the extreme view of the matter the averments made in the I.A.No.6229/05, I.A.No.6230/05 and counter affidavit to I.A.No.2125/01 cannot qualify to be admission by the appellant. The I.A.No. 6229 of 2005 has been filed on behalf of the appellant, under Section 151 CPC, praying for deleting the name of the respondent no.3 Jago Devi after her death during the pendency of the appeal with further prayer to substitute the name of Naresh Kumar Rai in her place on the basis of a registered deed of will dated 20.08.2004 executed by the deceased in favour of Naresh Kumar Rai. The contesting respondents have filed a counter affidavit resisting the prayer mainly on the ground that no such will had been executed by the deceased respondent no.3 Jago Devi and the document of will, as produced, is forged and fabricated document and cannot be taken into notice also in view of the doctrine of lis pen dens . By filing an additional counter affidavit, the respondents have reiterated that the said will is forged and fabricated document. Similarly, by filing I.A.No. 6230 of 2005, the appellant has sought 12 Patna High Court FA No.703 of 1976 dt.07-04-2013 P12 / 14 permission to sell his share of lands, subject matter of appeal, to meet the marriage expenses of his daughter. By filing a counter affidavit, the contesting respondents have resisted the prayer for permission to sell the land of Plot No. 630 of Khata No. 45 on the ground that the said land has been allotted to their share and further consented for sale of the land of Khata No.72 by the appellant. The statements made in the counter affidavit to I.A.No.2125/01 had been made with regard to appointment of receiver. It cannot be lost sight of that these statements had been made in different context and that too during the pendency of this appeal when the impugned judgment and decree of the court below was operative. Thus on the basis of the statements made in the two interlocutory applications and the counter affidavit, it cannot be inferred that the appellant has admitted the land of Khata No.45 to be joint family property and will, therefore, be precluded from contending to the contrary.

On behalf of the appellant the prayer has been made to withdraw the two interlocutory applications i.e. I.A.No. 6229 of 2005 and I.A.No. 6230 of

2005. It is well settled that a party has absolute right to withdraw a suit or petition filed by him and the said prayer can be refused only when a valuable right has accrued in favour of the other side. The contesting respondents have failed to establish accrual of a valuable right in their favour, in view of which the prayer for withdrawal can be refused.

As discussed above, the plaintiff has not come before the Court with the necessary pleading that the lands of Khata No.72 and Khata No.45 are the joint family properties notwithstanding the fact that the same has been recorded in the name of the stranger to the family or have been auction sold in execution of the rent decree. As such, even the prayer for adducing additional evidence as contained in I.A.No. 7667/12 also cannot be allowed as those documents sought 13 Patna High Court FA No.703 of 1976 dt.07-04-2013 P13 / 14 to be adduced as additional evidence cannot be taken into account for want of the necessary pleadings. It would be apposite here to reminisce the principle in this regard laid down by the apex court in the case of Union of India Vs. Ibrahim Uddin, 2012 (8)SCC 148 as follows:

…Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence...

In the result, it is held that the lands of Khata No.72 and Khata No.45 as mentioned in the suit properties are not the joint family properties of the parties and could not have been the subject matter of partition. The findings by the learned court below to the effect that the lands of Khata No.72 and Khata No.45 14 Patna High Court FA No.703 of 1976 dt.07-04-2013 P14 / 14 are joint family properties are set aside.

This appeal is, accordingly, allowed in part to the extent as indicated above for the lands of Khata No.72 and 45 and the impugned judgment and decree by the learned court below is modified that extent. The T.S.(Partition) No. 263/73 filed by the plaintiff is dismissed for the lands of Khata No.72 and Khata No.45. In the facts and circumstances of the case, there shall be no order as to cost. Nitesh/- (V. Nath, J)