Patna High Court · 1984
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.441 of 1984 =========================================================== Srikant Singh, Son of Late Saryu Singh, Resident of Village-Lohra, P.S.-Harnaut, District-Nalanda .... .... Appellant. 1. Shanti Devi, Daughter of Late Suban Singh, Resident of Village-Lohra, P.S.- Versus Harnaut, District-Nalanda. 2. Kaushlendra Sharma, Son of Sushila Devi @ Duniya Devi. 3. Jitendra Sharma, Son of Sushila Devi @ Duniya Devi. 4. Sushma Devi. 5. Ushma Devi. Both daughters of Late Sushila Devi @ Duniya Devi. All Resident of Village-Lohra, P.O.-Lohra, P.S.-Harnaut, District-Nalanda. 6. Sunita Devi, Wife of Late Janardhan Singh, Resident of Village-Lohra, P.O.- Lohra, P.S.-Harnaut, District-Nalanda. 7. Anju Kumar, Minor daughter of Sri Janardan Singh under the guardianship of
Legal Reasoning
Sri Kishori Prasad Advocate, guardian at litem Civil Court Biharsharif, Nalanda. 8. Sri Ishwari Singh, Son of Sri Ramswaroop Sing. 9. Sri Jawala Singh. 10. Sachida Nand Singh. Both sons of Late Saryu Singh. 11. Sri Arjun Sharma, Son of Sri Ishwari Singh. 12. Sri Arun Sharma. 13. Sri Tarun Kumar Sharma. Minor under guardianship of Sri Kishori Prasad Adv guardian at litem Civil Court Biharsharif, Nalanda. 14. Sri Ranjit Kumar. 15. Sri Sanjay Kumar. Minor sons of Jawala Singh under guardianship of Sri Kishori Prasad Adv guardian at litem Civil Court Biharsharif, Nalanda. 16. Karu Singh. 17. Hira Singh. 18. Ghuran Singh. Patna High Court FA No.441 of 1984 dt.29-11-2013 2 Both Sons of Kishori Singh. All Resident of Village-Nadawan, P.S.-Barh, District-Patna. 19. Nagina Devi, Wife of Sri Chanda Singh deceased, daughter of Sri Ambika Singh deceased Naitini of Sri Ayodhya Singh, deceased. 20. Ganesh Sharma. 21. Anandi Sharma. Both sons of Ram Chandra Singh. Both residents of Village-Dhibar, P.S.-Barh, P.O.-Barh, District-Patna. 22. Smt Bhali Devi, Wife of Sri Anantu Singh, daughter of late Ayodhya Singh, Resident of village-Tulsiganj, P.S.- Chandi, District-Nalanda. 23. Smt Barauti Devi, Wife of Sri Kisrani Sharma, Daughter of Sri Late Ramswaroop Singh, resident of village-Karauta, P.S.-Bakhtiarpur, District- Patna. 24. Smt Jago Devi, Wife of Sri Bhism Singh, daughter of late Sri Ramswaroop Singh, Resident of village- Langarpur, P.S.-Barh, District-Patna. 25. Subodh Kant. 26. Utpal Kant. 27. Rajni Kant. Both Sons of Uma Shankar Singh. 28. Uma Shankar Singh @ Uma Kant Singh, husband of late Kishori Devi, All Resident of village- Ladwan, P.S.-Barh, District-Patna. 29. Sri Murari Sharma, Minor Son of Sri karyanand Singh and maternal grand son of Nonu Singh (deceased) under guardianship of his father Karyanand Singh, Resident of village-Gago Bigha, P.S.- Ekangarsarai, District-Nalanda. -- -Respondents =========================================================== Appearance : For the Appellant/s : Mr Prabhunath Rai, Sr.Adv with Ajay Kumar Sharma, Adv. For the Respondent/s : Mr. Mr Shashi Dhar Jha, Adv. Mr Sunil Kumar No.5 Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 29-11-2013 V. Nath, J Taking exceptions to the judgment and decree dated 19th Patna High Court FA No.441 of 1984 dt.29-11-2013 3 May 1984 by Sub Judge Biharsharif, Nalanda in T.S.No. 183/1979, the defendant no.5 (now deceased, through L.R.) in the suit has preferred this appeal. 2. The suit has been filed for partition of the properties mentioned in the schedules of the plaint and the plaintiff has prayed for half share in those properties. 3. The genealogy of the family is not in dispute between the parties to the suit which shows that Tokhan Singh had three sons Ayodhya Singh, Durga Singh and Shyam Lal Singh. The plaintiff Sabal Singh belongs to the branch of Durga Singh and the defendants including the contesting defendant no.5 belong to the branch of Ayodhya Singh. It is not in dispute that the branch of Shyam Lal Singh is extinct. The plaintiff has asserted unity of title and jointness of possession between the plaintiff and the defendants in the family property mentioned in the schedules of the plaint and has sought separation of his half share. 4. As mentioned above, the suit was contested only by defendant no.5 who is grandson of Ayodhya Singh being son of Ram Swaroop Singh who was one of the three sons of Ayodhya Singh. In his written statement the defendant no.5 has come out with the case that there had earlier been partition in the family whereby the father of the plaintiff alone was separated and in that view of the matter, the Patna High Court FA No.441 of 1984 dt.29-11-2013 4 plaintiff now cannot have a claim for partition as there is no unity of title and jointness of possession between the parties in the suit property. It would be significant to mention here that other defendants who are the remaining descendants of Ayodhya Singh have in their written statement admitted the claim of the plaintiff and have prayed for partition of their shares also. 5. During the trial of the suit, the contesting defendant no.5 did not lead any evidence to establish his case of previous partition alleging that the father of the plaintiff alone was divided. The said defendant even did not examine himself in the suit to support his case as made out in the written statement. The plaintiff and the other defendants, however, led their evidence and by the impugned judgment and decree the learned court below has allowed the claim of the plaintiff to have half share in the suit properties. 6. Mr Prabhunath Rai, the learned senior counsel appearing for the appellant has fairly submitted that he could not find any evidence on behalf of defendant no.5-appellant in order to make submissions for varying or setting aside the impugned judgment and decree. The learned senior counsel has further accepted that the parties to the suit belong to a Hindu family and the presumption of jointness among them is there and the burden of proof lies on the party who pleads previous partition in the family. Mr Rai, therefore, Patna High Court FA No.441 of 1984 dt.29-11-2013 5 has urged that he has no material to urge in support of this appeal. 7. Mr Shashi Dhar Jha , the learned counsel appearing for the plaintiff-respondent has pointed out that no evidence has been adduced on behalf of the defendant no.5 in support of the case made out by him in his written statement and even defendant no.5 also did not dare to examine himself in the suit to corroborate the facts asserted in the written statement. It has, therefore, been submitted by Mr Jha that the impugned judgment and decree do not warrant any interference as the learned court below has rightly decreed the suit in view of the pleadings and evidence before it. 8. After considering the submissions on behalf of the learned counsel for the parties, and perusal of the impugned judgment, it is pellucid that both the plaintiff and the defendants belong to a Hindu family governed by Mitakshara law wherein there is presumption of joint status in the family. In this view of the matter, the burden of proof to establish the contrary was definitely on the defendant no.5 who has come out with the case of previous partition. The other defendants, in their written statement, have accepted the joint status of the family and have also prayed for partition of their own shares. 9. The contesting defendant no.5 did not lead any evidence nor has examined himself as witness in the suit. As such, the case of Patna High Court FA No.441 of 1984 dt.29-11-2013 6 the previous partition as pleaded in the written statement by the defendant no.5 has not been proved. In view of the submission by Mr Rai, the learned senior counsel for the appellant that there is no material on record to support the case of the defendant no.5, the presumption of jointness in between the plaintiff and defendants has remained unrebutted. The plaintiff is, therefore, held entitled to have his half share in the suit property separated. No submission has been made on behalf of the appellant against the finding recorded in the impugned judgment and decree in favour of the defendant nos.1 to 4 and 15 to 21. 10. Ex consequenti, this appeal being sans merit, is accordingly, dismissed and the impugned judgment and decree are upheld. In the facts and circumstances, however, there shall be no order as to cost. Nitesh/- (V. Nath, J)