Patna High Court
Case Details
Patna High Court FA No.35 of 1983 dt.13-02-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.35 of 1983 (Against the judgment and decree dated 22.10.1982 passed by 3rd Additional Sub Judge, Sasaram in Title Suit No.130 of 1977). =========================================================== Dasai Mahto Singh & Ors .... .... Appellant/s Ramayan Mahto(Singh) & Ors Versus .... .... Respondent/s =========================================================== Appearance : For the Appellant/s Mr. Yogendra Pd.Sinha Mr. P.C.Chaudhary, Advocates For the Respondent/s : Mr. Jai Prakash Singh-1 Mr. Ramayan Pd. Yadav Mr. Arun Kumar, Mr. Hirday Pd. Singh Mr. Arbind Kumar Mr. Santosh Kumar Sinha Mr. Anant Kumar Mr. Kameshwar Singh Mrs. Arti Kumari, Advocates. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV JUDGMENT Date: 13-02-2013 Mungeshwar Sahoo, J. 1. The defendants have filed this First Appeal against the judgment and decree dated 22.10.1982 passed by the learned 3rd Additional Subordinate Judge, Sasaram in Title Suit No.130 of 1977 whereby the trial court decreed the plaintiffs- respondent’s suit for partition. 2. The plaintiffs-respondents filed the aforesaid suit for partition claiming 1/4th share in the suit property including khata no.16 of Bajitpur. According to the plaintiffs, their ancestor, Jeeta Mahto had 7 sons, namely Dilraj Mahto, Ramdahin Mahto, Fakira
Legal Reasoning
Patna High Court FA No.35 of 1983 dt.13-02-2013 2 Mahto, Seeraj Mahto, Jodhan Mahto, Kuber Mahto and Naubat Mahto. The line of Dilraj Mahto and Ramdahin Mahto extinct. Jodhan Mahto had two sons and his line also extinct. The remaining descendants of 4 sons of Jeeta Mahto continued. The plaintiffs are the descendants of Naubat Mahto. The defendant no.1, Jhabar Mahto is the son of Kuber Mahto and the defendant nos.2 to 10 are descendants of Jhabar Mahto. Defendant nos.11 to 21 are descendants of Seeraj Mahto. Likewise, the defendant nos.22 to 28 are representing the branch of Fakira. There had been no partition between the parties and the property is in joint possession of the parties. However, the parties were cultivating separately the lands according to their convenience without measurement and partition by metes and bounds. 3. The defendants appeared and filed a contesting written statement alleging that the plaintiffs have no concern with the suit lands. The suit is barred as abated under Section 4C of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. The plaintiffs are not the descendants of Jeeta Mahto. Naubat Mahto was not the son of Jeeta Mahto. He was son of Kilfat Koeri. Jeeta Mahto had only 6 sons. Prior to revisional survey, all the 6 sons of Jeeta Mahto had partitioned by registered deed of partition dated 04.12.1948. In the recent survey, wrongly the name of son of Patna High Court FA No.35 of 1983 dt.13-02-2013 3 Naubat has been added. Jhabar was minor at the time of survey as such, Naubat Mahto with bad intention got the name of his two sons recorded in the khatiyan with Jhabar Mahto. Jhabar Mahto when became major, gave some property to the sons of Naubat for their maintenance as they were very poor. There is no unity of title and possession between the parties. 4. On the basis of the aforesaid pleadings of the parties, many issues were framed by the trial court. 5. After trial, the trial court came to the conclusion that there had been partition between the sons of Jeeta Mahto except khata no.16 of Bajitpur and so far the other suit properties are concerned, because of consolidation proceeding, the same was abated. This khata no.16 is jointly recorded and there is no evidence in support of the fact that this property was also partitioned between the sons of Jeeta Mahto. Accordingly, the trial court decreed the plaintiff’s suit for partition of khata no.16 of Bajitpur only. 6. It may be mentioned here that this appeal is filed against this part of the judgment only. We are, therefore, concerned with khata no.16 of Bajitpur only. The suit regarding other properties has already been abated. 7.
Legal Reasoning
The learned counsel for the appellants submitted that the court below has wrongly recorded the finding that Naubat Patna High Court FA No.35 of 1983 dt.13-02-2013 4 was the son of Jeeta Mahto. The learned trial court has not considered the evidences properly. When the trial court recorded a finding that there had been partition between the sons of Jeeta Mahto, the suit for partition with respect to khata no.16 could not have been decreed. The appellants have produced the registered deed of partition of the year 1948 which conclusively proves that there was partition between 6 sons of Jeeta Mahto. If Naubat was son of Jeeta Mahto, he would have also been allotted a share in the property but as he was not his son, therefore, nothing has been allotted to him. The learned counsel further submitted that since it was found that there had already been partition between the sons of Jeeta Mahto, it was for the plaintiffs to have proved the fact that this khata no.16 remained unpartitioned. On these grounds, the learned counsel for the appellants submitted that the impugned judgment and decrees are liable to the set aside and the plaintiff’s suit be dismissed. 8. On the other hand, the learned counsel appearing on behalf of the respondents submitted that there is no illegality in the judgment of the trial court. The survey khatiyan of the year 1911 shows that the names of the plaintiff’s ancestors were recorded in the khatiyan along with the defendant’s ancestor. If Naubat was not the son of Jeeta Mahto, how his descendants were recorded Patna High Court FA No.35 of 1983 dt.13-02-2013 5 along with other descendants of sons of Jeeta Mahto. Therefore, the trial court has rightly recorded that Naubat was sons of Jeeta Mahto and Jeeta Mahto had 7 sons. So far partition is concerned, according to the learned counsel, this property comprised within khata no.16 of Bajitpur has been found to be joint, therefore, the trial court has rightly held so and decreed the plaintiff’s suit for partition. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. 9. In view of the above contentions of the parties, the points arises for consideration is as to “whether Jeeta Mahto had 7 sons or not and Naubat was the son of Jeeta Mahto or not” and “whether there was partition between them” and “whether the impugned judgment and decrees are sustainable in the eye of law?” 10. In this case, admittedly, there were many properties included in the plaint for partition such as khata no.15, 33, 12, 26 and 16 of village Bajitpur and Karma. Since there was notification under the Consolidation Act, the suit regarding the other lands abated. The only property mentioned in khata no.16 of Bajitpur remained for partition. So far this property is concerned, houses are there. 11. According to the plaintiffs, Jeeta Mahto had 7 sons and the plaintiffs are the descendants of Naubat who was one Patna High Court FA No.35 of 1983 dt.13-02-2013 6 of the sons of Jeeta Mahto whereas according to the defendants, Naubat was not the son of Jeeta Mahto. The branch of 3 sons of Jeeta Mahto namely Dilraj Mahto, Ramdahin Mahto and Jodhan Mahto extinct and there was partition by registered deed of partition in the year 1948 between the sons of Jeeta Mahto. Naubat Mahto is Mausera brother of Kuber Mahto who was very poor so, he was residing with Kuber Mahto. In the revisional survey, Jhabar Mahto was minor so, Naubat Mahto got the name of his sons entered in the survey khatiyan. 12. To prove their respective cases, the parties have adduced oral as well as documentary evidences. The plaintiffs have examined P.W.9, 12 and 14 on the point of parentage of Naubat Mahto. The other witnesses are not on this point. On the other hand, the defendants have also examined witnesses i.e., D.W.6 to 8, 17, 20, 23 and 24 including the parties themselves. From perusal of the evidence of these witnesses, it appears that the witnesses of the plaintiffs mentioned above have stated that Jeeta Mahto had 7 sons including Naubat Mahto. On the contrary, the witnesses of the defendants have stated that Jeeta Mahto had only 6 sons and Naubat was not the son of Jeeta Mahto rather he was son of Kilfat Mahto. All the witnesses of both the parties have stated that they had not seen them but they have learnt this fact from their forefathers. Now, Patna High Court FA No.35 of 1983 dt.13-02-2013 7 it is admitted fact that there are oral evidences adduced on behalf of the plaintiffs which are on the same line as that of the oral evidences adduced by the defendants. In other words, oral evidences versus oral evidences of same nature have been produced before the court. On the basis of these evidences, it is not possible to record a finding as to whether Naubat was son of Jeeta Mahto or Kilfat Mahto. The important fact to be mentioned here is that admittedly, the descendants of Naubat Mahto have been recorded in the cadastral survey record of right along with the descendants of Jeeta Mahto. No steps have been taken by the defendants either to get the entry corrected or set aside. 13. From perusal of Exhibit 3 to 3/G which are khatiyan of the lands of Jeeta Mahto, it appears that in khatiyan, Exhibit 3 and 3/A relating to khata no.6 and 13 of village Bajitpur and khata no.11 of village Karma, the sons of Naubat namely Naurang and Ratilal has been recorded. So far this entry is concerned, there is no denial on the part of the defendants. The only case pleaded is that Naubat got their name wrongly entered with ulterior motive. So far Exhibit 3/C is concerned, it has been recorded jointly in the names of 6 sons of Jeeta Mahto and sons of Naubat Mahto. Plot no.292 has been shown in joint possession. Plot no.293 has been shown in possession of Dilraj, Jhabar, Patna High Court FA No.35 of 1983 dt.13-02-2013 8 Naurang, Ratilal and Sakhi. Plot no.322, sahan has been recorded in possession of Dilraj, Lakhu, Jhabar, Naurang, Ratilal and Rampati. Plot no.388 and 518 has been recorded in joint possession. It may be mentioned here that on these plots, the houses of the parties are situated and the possession have been shown separately as far back as in 1911, i.e., in cadastral survey record of right. 14. The defendants have produced registered partition deed, Exhibit F dated 04.12.1948. By this document, 30 bighas of land was partitioned. In this document, 15 bighas land was allotted to the branch of Kuber whereas the descendants of Seeraj were allotted 1/4th share, i.e., 7 ½ bighas and likewise, the descendants of Fakira were allotted 1/4th share, i.e., 7 ½ bighas. If the case of the defendants is accepted that Jeeta Mahto had only 6 sons then out of 30 bighas, branch of each 3 sons namely, Fakira, Seeraj and Kuber would have been allotted 10 bighas each. There is no explanation as to how and why Kuber was given 15 bighas and the other 2 branches have been given only 7 ½ bighas each. This clearly supports the case of the plaintiff. Admittedly, as has been admitted by the defendants-appellants that Naubat was living with Kuber Mahto, therefore, both the branch jointly were allotted 15 bighas. 15. The other document, i.e., Exhibit 1 is the sale Patna High Court FA No.35 of 1983 dt.13-02-2013 9 deed of the year 1976. By this sale deed, plot no.315 of khata no.16 of Bajitpur was jointly sold by some of the defendants along with plaintiff no.4, Sagar Singh. All these documentary evidences clearly support the case of the plaintiff that Naubat was the co- sharer as a son of Jeeta Mahto, therefore, the name of his sons were recorded in the revisional survey record of right. On the contrary, no documentary evidences have been produced on behalf of the defendants in support of the case that Naubat Mahto is the son of Kilfat Mahto. 16. In view of my above discussion, I find that Naubat Mahto is one of the sons of Jeeta Mahto and Jeeta Mahto had 7 sons. The finding of the trial court on this point is, therefore, confirmed. 17. The plaintiff’s case is that there had been no partition between the parties and they are cultivating the lands jointly. The lands are recorded jointly in the cadastral survey record of right. On the contrary, the case of the defendants is that there had already been partition between the parties. We have seen above that Naubat was also son of Jeeta Mahto. It is admitted that so far other properties are concerned, the suit has already been abated. The only property left for partition in this suit was with respect to khata no.16 of Bajitpur which relates to the house property. Patna High Court FA No.35 of 1983 dt.13-02-2013 10 18. In view of the above facts, the question is as to whether there is any case that this property comprised within khata no.16 was left unpartitioned or it remained joint. So far this question is concerned, there is no pleading on behalf of the plaintiffs. In general term, there is pleading that the parties are separate since long and are cultivating the lands according to their convenience without there being any partition. It is admitted fact that the residences of the parties are separate since long. Registered deed of partition has been produced by the defendants, Exhibit F. Exhibit 3/C shows that this khata has been jointly recorded in the names of the descendants of Jeeta Mahto. These khatiyans are of the year 1911. In different plots, the possessions of different persons have been noted in the khatiyan. As stated above, residence is separate. Exhibit D and D/1, the sale deeds produced by the defendants show that there was inter se transactions between the parties. Now, therefore, 100 years ago from today, the parties were recorded in cadastral survey record of right but in some of the plots, separate possession has been shown and in some of the plots, joint possession has been shown. There was partition by registered deed in the year 1948. There were inter se transactions between the parties. 19. In the case of Ram Bahadur Nath Tiwary v. Patna High Court FA No.35 of 1983 dt.13-02-2013 11 Kedar Nath Tiwari and others, AIR 1977 Patna 59, a Division Bench of this court has held that inter se transactions between the parties furnishes strong piece of evidence of partition between the parties. Likewise, in the case of Arjun Mahto and others v. Monda Mahatain and others, AIR 1971 Patna 215, a Division Bench of this court has held that separation in food and residence for a long time among the brothers of a Hindu family, independent transactions of property, separate possession and enjoyment of properties are by themselves, no doubt, not conclusive but the cumulative effect of such facts may show that there had been a partition between the brothers during their lifetime. In the present case, admittedly, there is inter se transaction, there is separate residence since long, separate dealings with the property, separate messing since long and even there is registered deed of partition in the year 1948. Therefore, taking into cumulative effect of these facts, it clearly shows that there had been partition between the branches of 7 sons of Jeeta Mahto. Therefore, in my opinion, the trial court has rightly recorded that there had been partition between the parties. 20. As stated above, the question for partition in this suit is only with respect to khata no.16 which consists of house, sahan etc. only. The plaintiffs have admitted that their residences Patna High Court FA No.35 of 1983 dt.13-02-2013 12 are separate. In different plots, the possessions have been defined as far back as in the cadastral survey record of right. Therefore, only because some other plot of khata no.16 which is not the subject matter of partition suit was sold jointly by Exhibit 1, it cannot be said that this khata no.16 has not been partitioned between the parties. It may be mentioned here that the general case of the plaintiff was that there had been no partition. We have recorded the finding that there had been partition. The trial court also recorded the finding that there had been partition. It appears that the Lower Court on the basis of the entry in Exhibit 3/C, i.e., cadastral survey khatiyan coupled with Exhibit 1, i.e., the sale deed, recorded a finding that this khata is joint and there was no partition. So far this finding is concerned, it may be mentioned here that this is not the case of either party that this khata is joint. Since it is found that there had been partition with respect to the other properties, in such circumstances, the onus is on the plaintiffs to prove by pleading and cogent evidence that there had been no partition at least with respect to this khata since after the cadastral survey record of right. There is no evidence to this effect rather the evidence is that there had been no partition and the parties are cultivating the lands separately. Separate residence is admitted. Now, therefore, only on the basis of entry in cadastral survey and the sale deed of the year 1976, Exhibit Patna High Court FA No.35 of 1983 dt.13-02-2013 13 1, no definite finding can be recorded that this khata no.16 of Bajitpur was not partitioned although, there was partition between the parties and this khata was left joint. It is settled principles of law that in the absence of pleadings and evidences, the court cannot pass a decree assuming that the property was joint particularly when there is no such case pleaded by either party. 21. In the case of Bachhaj Nahar v. Nilima Mandal, (2008) 17 Supreme Court Cases 491, the Apex Court has held that “no amount of evidence, on a plea i.e. not put forward in the pleadings can be looked into to grant any relief. Only in exceptional cases, can this general rule be deviated from, if the court is fully satisfied that the pleadings and issues generally covered the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue.” Here, in the present case, as stated above, there is neither any pleading nor an issue to the effect that all the properties were partitioned except this khata no.16 which remained unpartitioned between the parties. In my opinion, therefore, the learned court below after recording a finding that there had been partition between the parties could not have recorded a contrary finding that this property only was left joint particularly when there was no such case put forward by the plaintiffs. If there was partition, then there was partition with Patna High Court FA No.35 of 1983 dt.13-02-2013 14 respect to all the properties. If there was no partition, then there was no partition with respect to all the properties. The finding of the trial court on this point is, therefore, reversed. I, therefore, find that there had already been partition between the parties. Therefore, there is no unity of title and possession between the parties. 22. In the result, this First Appeal is allowed and the judgment and decree passed by the trial court is hereby reversed. The plaintiff’s suit for partition is accordingly, dismissed. In the facts and circumstances of the case, no order as to cost. Saurabh/- (Mungeshwar Sahoo, J)