Lallan Choudhary v. Rama Kumari Devi

Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013

14. Fulmati Wife of late Bachcha Choudhary 15. Subhash Choudhary son of Late Bachcha Choudhary 16. Jai Prakash Choudhary All resident of Village Sadar Bhalua, P.O. Bhaisarkhal, P.S. Jiradei, Siwan. 17. Girija Devi (daughter of Late Bachcha Choudhary) wife of Subhash Yadav, resident of village- Mishrauli (Kawar Rai ke Tola) P.O. Bankul, P.S. Khampar, District-Dewariya (U.P.)

18. Paspati Devi (daughter of Late Bachcha Choudhary) wife of Achhay Lal Yadav, resident of village-Semra, P.O. Shahpur, P.S. Nawtan, District-Siwan.

19. Sumitra Devi (daughter of Late Bachcha Choudhary) wife of Suraj Yadav, resident of village-Rampur, P.O. Pratapur, P.S. Bankta, District-Dewariya (U.P.)

20. Gyanti Devi (daughter of Late Champa Devi) resident of village- Rampur, P.S. Andar, District-Siwan

21. Kesarmati Devi daughter of late Champa Devi wife Sheoji Yadav, resident of village-Jigana, P.S. Mirganj, District-Gopalganj.

22. Kusum Devi daughter of Birendera Choudhary wife of Sujit Yadav, resident of village-Mathihani- P.S. Mirganj, District-Gopalganj.

23. Arati Devi (daughter of Birendra Choudhary) wife of Sandeep Yadav, resident of village- Mathia P.S. Rampur, Distt. Dewariya, U.P.

24. Anup Kumar minor son of late Surendra Choudhary

25. Satish Kumar minor son of late Surendra Choudhary

26. Samahi Kumar minor daughter of late Surendra Choudhary All resident of village Bhalua, P.S. Jiradei, District-Siwan.

27. Ram Janam Choudhary 28. Raj Mangal Choudhary 29. Mohan Lal All sons of late Bishwanath Choudhary

30. Sheo Kumari Devi 31. Kishora Devi Both daughters of late Bishwanath Choudhary

32. Panchdeo Choudhary 33. Majister Choudhary Both sons of late Gopal Choudhary All resident of village Sadar Bhalua, P.S. + P.O.-Bhaisarwal, District- Siwan 34. Urmila Devi, daughter of late Gopal Choudhary wife of Shri Sheshnath Choudhary, resident of village + P.O.- Hathaurha, P.S. Hussainganj, District-Siwan.

35. Meena Devi, Daughter of late Gopal Choudhary wife of Shri 3 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 Amarjeet Yadav, resident of village + P.O.-Jiyay, P.S. Mufassil Siwan, District-Siwan

36. Kamali Devi daughter of Jagarnath Choudhary 37. Ballister Choudhary, son of late Gaya Choudhary 38. Chinta Devi daughter of late Gaya Choudhary 39. Maina Devi wife of Ramayan Choudhary bint Dwarika Choudhary All resident of village Bhalua, P.S. Jiradei, District-Siwan

40. Kamta Pathak son of late Thakur Pathak 41. Mahatma Pathak 42. Awadhesh Pathak 43. Ram Yash Pathak All sons of Kamta Pathak All resident of village Bhalua, P.S. Jiradei, District-Siwan Defendant .... Respondent .... Respondents ====================================================== Appearance : For the Appellant/s : Dr. Umashankar Prasad, Sr. Advocate Mr. Kamala Kant Tiwary, Advocate For the Respondent/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 28 08-02-2013 Heard learned Senior Counsel for the appellants.

2. Defendants of Title Suit (Partition) No. 103/86 before the Court of Sub-ordinate Judge VIth, Siwan are the appellants in the present appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) which has been placed for hearing under Order 41 Rule 11 of the Code.

3. The appellants are aggrieved by the judgment and decree dated 21.11.2007 passed by learned Additional District and Sessions Judge, F.T.C. III, Siwan in Title Appeal No. 46/92 whereby he has partly allowed the appeal in favour of the 4 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 respondents herein and confirmed the rest of the judgment and decree dated 09.09.1992 passed by learned Sub-Judge, Siwan in Title Suit No. 103/1986 whereby the suit filed by the plaintiffs / respondents was decreed in part.

4. T.S. No. 103/1986 was filed for partition of the properties described in Schedule 1, 2 and 3. The genealogy is not in d ispute. Ajaib Choudhary was the common ancestor having two sons Bedeshi Choudhary and Sheo Govind Chudhary. Bedesi Choudhary died leaving behind four sons, namely, Khooblal Choudhary, Thakur Choudhary, Vishwanath Choudhary and Jagarnath Choudhary. The four sons died one by one. Sheo Govind Choudhary also died leaving behind his son Dwarika Choudhary. Dwarika Choudhary died leaving behind his three sons, Ram Ekbal Choudhary, Basudeo Choudhary, Alakhdeo Choudhary and one daughter Maina Devi. The sons of Dwarika Choudhary are plaintiffs in Title Suit No. 103/1986. His daughter Maina Devi was impleaded as party defendant No. 20 in the suit.

5. The plaintiffs claimed that the above named Ajaib Choudhary, Bedeshi Choudhary, Sheo Govind Choudhary and Dwarika Choudhary died in the state of jointness. They further claimed that there was enough joint family property and the property was so fertile that joint surplus fund was created after 5 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 meeting family expenses and certain properties were acquired from such surplus joint family fund in the name of brother-in-law of Khooblal Choudhary and Dwarika Choudhary. It was pleaded that after the death of Bedeshi Choudhary and Sheo Govind Choudhary, Khooblal Choudhary became the Karta of joint family of both the brothers and he also acquired property from the nucleus of the joint family and further that members of family of both brothers having came into possession of property so acquired by Khooblal as Karta. The plaintiffs pleaded that for the sake of convenience a separation had taken place about twenty years back but there was no partition among the parties by metes and bounds.

6. The defendants filed their written statement and contested the suit. As has been noted at the outset, the appellants herein were the defendants before the Trial Court who had filed their joint written statement and were the main contesting defendants in the suit.

7. While admitting the genealogy of the joint family it was pleaded on behalf of the Appellants/Defendants that Dwarika Choudhary and Khoob Lal Choudhary had partitioned the ancestral Khatiyan properties in the year 1925 itself. They gave the details of the ancestral land which was partitioned amicably among themselves according to a family arrangement. It was 6 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 further pleaded that Zar Pesagi lease (Zar Pesagi lease is an usufructuary mortgage in ordinary circumstance) of 1909 and 1917 was standing the name of Ajaib Choudhary which was divided among the two brothers Bedeshi Choudhary and Sheo Govind Choudhary who paid Rs. 525/- each against total Zar Pesagi amount of Rs. 1050/-. The appellants pleaded in their written statement that Khooblal Choudhary was appointed as Chowkidar after the death of Bedeshi Choudhary and he had earning out of it. The defendants further pleaded that sons of Bedeshi including Khooblal Choudhary used to keep cows and do business of Mahajani and sale and purchase of animals and made good savings out of it. They pleaded that father of Khooblal Choudhary had given loan to some people which earned interest also and accordingly a sum of Rs. 1050/- for Zar Pesagi of 1909 and 1917 was to be paid by the loanees. As the loanees could not pay back the amount, they made Zar Pesagi in favour of the ancestors of the defendants. It was also pleaded on 18.07.1929, they made Zar Pesagi with respect to 6 Bigha 13 Katha and 6 Dhurs to Bedeshi Choudhary. Bedeshi Choudhary had given a sum of Rs. 42 to them and for a sum for Rs. 80 Zar Pesagi amount was made and Bedeshi Choudhary had to get the remaining amount. It was stated that one Basgit Kamkar, who was 7 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 the owner of 1/3 share of Khata No. 17 was in the urgent need of money Khooblal was ready to give more in comparison to other and executed a sale deed in 1929 with respect to some land out of Zar Pesagi land of Khata No. 17 measuring 3 Bigha 16 Katha 2 Dhurs of cultivable land and 14 ½ Dhurs homestead land for a sum of Rs. 2500/- in favour of father of Khooblal Choudhary. The details of other properties which according to the defendants were acquired through themselves by the defendants were also mentioned in their written statement so as to contend that this property could not be subject matter of the partition as claimed by the plaintiffs. On the basis of the rival pleadings learned Trial Court framed altogether eight issues including issue No. IV, V and VII which reads thus:- “IV) Is there any Unity of title and Unity of possession between the parties with respect to the suit land? V) Whether separation took place in the year 1925 or not? VII) Whether the land of Schedule III is of joint acquisition or in the state of separate acquisition?”

8. Dealing with issue No. IV, learned Trial Court came to a conclusive finding that there was Unity of title and Unity of possession over the ancestral property of the plaintiffs and the defendants and they were entitled for the half share each of Schedule 1 property and property purchased before 1960. While 8 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 dealing with the issue No. VII i.e., the properties given in Schedule 2 and 3 being self-acquired properties of the defendants including defendants No. 1 to 4, who are appellants herein, learned Trial Court came to specific finding that the property acquired by parties after 1960 were their self-acquired property and they could not claim share in those properties. Learned Trial Court in its judgment accordingly held that the plaintiffs could not claim over the land, the description of which is given in Schedule 2 and Schedule 3 of the plaint.

9. Appeal was preferred against the judgment and decree passed by learned Trial Court vide T.A. No. 46/92 in the file of the Court of Additional District and Sessions Judge, F.T.C. III, Siwan. Learned First Appellate Court did not disturb the findings of the Trial Court much, except for a part of the property described in Schedule 2 of the plaint which related to the sale deed of the year 1946 in the name of Khooblal Choudhary (Exhibit B/10). Learned First Appellate Court on the basis of material available on record came to a finding that the said purchase was out of joint property fund. Learned First Appellate Court dealt with this aspect in paragraph 25 of the judgment in appeal which is being quoted hereinbelow:- “So far the sale deed of the year 1946 in the name of Khoob Lal (Ext B/10) is concerned, there are the out come of 9 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 joint family fund it has been admitted by the contesting defendants that there was Jarpeshgi deed of 1909 and 1917 in the name of Ajayab Chaudhry, the common ancestor D.W. 29 in para-9 and 10 has admitted in his evidence that the Jarpeshgi deed of 1929 Rs. 2929 was based on the Jarpeshgi deed of 1909 and 1917 and the land purchased in the name of Khooblal in the year (B/10) 1946 is based on the Jarpeshgi deed of 1929. The property given in the Jarpeshgi deed of 1929 and in the sale deed of 1946 are the same. The recitals of the sale deed also show that the Jarpeshgi amount of 1929 was settled since the Jarpeshgi deed of 1909, 1917 was in the name of common ancestor and it was acquired by joint family fund, it will be presumed that the land acquired by Khooblal in the year 1946 (2715/1946) from the Basgit Kumar (Mortgagers family) is also an out come from the fund of joint family. The defendant No. 1 to 4 have submitted that the word “Amarat” is used in the sale deed of 1946 (Ext. B/10) and no amount was set off in this deed, but that Zar Pesagi deeds have not been produced by the defendant No. 1 to 4 inspite of the several demand. This will lead to this inference that if the original Zar Pesagi deed would have been filed then the same would have gone against the defence version.”

10. Learned First Appellate Court, however, dealing with another sale deed of 1948 (Exhibit B/11) came to finding that the same could not be said to a joint family property. Learned senior counsel appearing on behalf of the appellants contends that finding of the First Appellate Court as regards the sale deed of the year 1946 is contradictory to the extent that purchase of another land (D/11) in the year 1948 has been held by learned First Appellate Court to be self-acquired and there could be any valid reason to 10 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 distinguish the nature of two transactions. He has further submitted that finding of learned First Appellate Court contradictory also while dealing with the year when the separation in the family is said to have taken place inasmuch as learned Appellate Court has held the year of separation to be 1966 whereas the final judgment has been passed on the premise that the separation took place in the year 1960.

11. Learned senior counsel has also submitted that learned First Appellate Court has not considered the material available before its correct perspective and the findings arrived at by the learned First Appellate Court as regards Schedule 2 property (Exhibit D/10) is completely erroneous.

12. So far as the submission of learned Senior counsel as regards contradiction in the findings with respect to year of separation by the First Appellate Court, I am of the view that there is no such contradiction. In paragraph 26 of the impugned judgment learned First Appellate Court has recorded that finding of the Trial Court that separation took place in the year 1960 was not correct. Learned First Appellate Court further held, dealing with the description of land given in Schedule 2 and acquisition made before 1960, that the plaintiffs could claim only with respect to purchased land of Khooblal Choudhary in the year 1946 11 Patna High Court SA No.28 o f 2008 (28) dt.08-02-2013 (Exhibit-D/10). This would not mean that learned First Appellate Court came to a different finding or the judgment is passed taking into account 1960 as year of separation. So far as the finding of the First Appellate Court that the purchase of land in the year 1946 through Exhibit B/10 was out of joint family property, on going through paragraph 25 of the judgment under appeal, I find that the First Appellate Court has taken into account and considered the evidence and material on record and such finding need not be interfered with in exercise of power under Section 100 of the Code of Civil Procedure. The appeal is, accordingly, dismissed. Saif/- (Chakradhari Sharan Singh, J.)