Jagdish Singh & Ors. v. Naresh Singh & Ors.

Patna High Court SA No.104 of 2008 (6) dt.19-08-2013 2 aside and the substitution application is allowed. The legal representatives of the deceased appellant no.1 are substituted in his place. All the legal representatives have appeared by filing vakalatnama.

#4. Heard learned counsel for the appellants under Order XLI Rule 11 of the Code of Civil Procedure.

#5. The plaintiffs-appellants-appellants have filed this Second Appeal against judgment and decree dated

27.02.2008 passed by the learned Additional District Judge, Fast Track Court No.1, Aurangabad in Title Appeal No.22 of 1994/10 of 2007 whereby the lower appellate court dismissed the appeal and confirmed the judgment and decree dated 24.05.1994 passed by the learned Subordinate Judge-II, Aurangabad in Partition Suit No.04 of 1986/09 of 1994.

#6. The plaintiffs-appellants-appellants aforesaid suit claiming for partition of the suit property to the extent of 50%. According to the plaintiffs, the parties are descendants of Lijaya Singh. Lijaya Singh had six sons, namely, Chulhan Singh, Ranglal Singh, Raman Singh, Laxman Singh, Naurangi Singh and Mosafir Singh. All were members of joint family. The first son Chulhan Singh was mentally retarded. The father and four sons except Ranglal Singh and Naurangi Singh Patna High Court SA No.104 of 2008 (6) dt.19-08-2013 3 died in the jointness. Accordingly, all the properties devolved on Ranglal Singh and Naurangi Singh having ½ share each in the property. Ranglal Singh was the Karta and after his death in the year 1977 his eldest son Mathura Singh became the Karta, who died in the year 1985. The properties in suit are acquired out of the joint family funds but the defendants are creating trouble and claiming the property to be their self acquired property.

#7. The defendants’ case, in short, is that in fact there had already been partition between the two brothers long ago and all the properties are the self acquired property of the defendant Mathura Singh. The father-in-law of Mathura Singh, namely, Uday Singh helped much in acquiring the suit property. He also gifted some property to the defendants, therefore, the suit lands are self acquired property of the defendants and the plaintiffs have got no right, title, interest and possession over the same.

#8. On the basis of the evidence, the trial court dismissed the plaintiffs’ suit recording the finding that there had already been partition between the parties and the properties are the self acquired property of the defendants.

#9. On appeal, the lower appellate court confirmed the finding of the trial court and dismissed the appeal. Patna High Court SA No.104 of 2008 (6) dt.19-08-2013 4

#10. The learned counsel appearing on behalf of the appellants submitted that while recording the finding, the lower appellate court has wrongly not relied upon the Panchnama produced by the plaintiffs whereby the suit property was divided between the parties which was binding on the defendants but the courts below did not rely on the same. According to the learned counsel, all the properties are acquired in the name of Lijaya Singh out of the joint family fund but it has been wrongly held by the lower appellate court that the properties are not the joint family property rather it is self acquired property of the defendants. According to the learned counsel, the ancestor of plaintiffs, namely, Naurangi Singh was junior member of the family, therefore, he was not knowing the facts and the papers relating to the title were burnt.

#11. From perusal of the judgment of the lower appellate court, it appears that the lower appellate court has discussed all the evidences produced by the parties either oral or documentary. The defendants have produced 14 sale deeds of the year 1963 regarding the suit property which are in the name of the defendants. The main case of plaintiffs is that the properties are acquired out of the joint family fund in the name of Lijaya Singh. However, so far this case is concerned, it is falsified by Patna High Court SA No.104 of 2008 (6) dt.19-08-2013 5 the sale deeds themselves because the sale deeds are in the name of defendants and not in the name of Lijaya Singh. So far the submission that the property has been acquired out of the joint family fund is concerned, from perusal of the judgment it appears that the lower appellate court found that the plaintiffs have not included any other land except the suit land which are purchased by the defendants through the aforesaid 14 sale deeds, Exts.B to B/13, therefore, the plaintiffs have failed to prove the source of joint family fund. Nothing has been brought on record by the plaintiffs to show that what was the extent of joint family property and what was the income of the joint family out of that property.

#12. The submission of learned counsel Panchnama was produced by the plaintiffs showing that the properties were partitioned between the parties. So far this submission is concerned, it may be mentioned here that the document is not registered document. It is settled principles of law that while an instrument of partition, which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1) (b) of the Registration Act, as has been held by the Patna High Court SA No.104 of 2008 (6) dt.19-08-2013 6 Hon’ble Supreme Court in the case of Roshan Singh and others Vs. Zile Singh and others, reported in A.I.R. 1988 SC 881. Therefore, this Panchnama produced by the plaintiffs being unregistered cannot be looked into and moreover the plaintiffs’ case is that the property has been acquired out of the joint family fund but failed to prove the joint family fund and acquisition of the properties out of the joint family fund. In such circumstances there cannot be a partition of the property between the plaintiffs and defendants when the plaintiffs have no title to the property. According to the finding of the lower appellate court, there had already been partition between the two brothers since long and the property has been acquired during separation. In such circumstances, the finding that the property is self acquired property of the defendants is pure finding of fact. Likewise the finding that there had already been partition between the two brothers long ago prior to acquisition of the property in question is also a pure finding of fact. Moreover, in the case of Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi, reported in (2009) 3 Supreme Court Cases 287 the Hon’ble Supreme Court has held that whether the property is joint family property or is self acquired property is not a substantial question of law rather it is a pure question of fact. In view of the above settled propositions Patna High Court SA No.104 of 2008 (6) dt.19-08-2013 7 of law the controversy between the parties has already been resolved by pure finding of facts by both the courts below.

#13. In view of the above facts, the points raised by learned counsel for the appellants are not at all substantial questions of law. Therefore, in my opinion, no substantial question of law is involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the stage of admission itself. (Mungeshwar Sahoo, J) Harish/-