HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.377 of 2008 ====================================================== 1. Banarsi Modi son of late Parmeshwar Modi. 2. Budho Devi wife of late Ram Chandra Modi. 3. Gora lal Chourasia son of late Ram Chandra Modi. 4. Kare Lal Chourasia son of late Ram Chandra Modi. 5. Bhuto Chourasia son of late Ram Chandra Modi. 6. Niraj Chourasia son of Late Ram Chandra Modi, all serial no. 1 to 6 resident of village-Nagarpara, P.S. Bihpur, District-Bhagalpur. 7. Rekha Devi d/o late Ram Chandra Modi, wife of Sri Ramjee Chourasia, resident of village-Pothiya Chandpur, P.S. and District-Katihar. .... .... Appellant/s Versus 1. Etwari Modi son of late Thithar Modi. 2. Suresh Modi son of late Thithar Modi. 3. Naresh Modi son of late Thithar Modi, resident of vill+P.O. Nagarpara, P.S. Bihpur, Bhagalpur. 4. Yogendra Modi son of late Ajay Lal Modi. 5. Mahendra Modi, son of late Ajay Lal Modi 6. Ashok Modi son of late Natho Modi, all resident of village-P.O. Nagarpara, P.S.-Bihpur, District-Bhagalpur.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Indrajeet Jha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 10 08-01-2013 Heard Mr. Indrajeet Jha, the learned counsel appearing on behalf of the appellants. This appeal has been filed by the plaintiffs against the judgment and decree dated 24th July 2008 by Additional District Judge-III, Naugachia, Bhagalpur reversing the decree for partition granted in favour of the plaintiffs in T.S. No. 76 of 1997 by Patna High Court SA No.377 of 2008 (10) dt.08-01-2013 2 Munsif Naugachia. The T.S. No. 76 of 1997 has been filed by the plaintiffs for partition of their half share in the suit properties and for declaration of their title and possession over the half share in the suit property coming in their peaceful possession in accordance with the family tradition. It is not in dispute between the parties that both the plaintiffs and the defendants are descendants of Gainu Barai. The plaintiffs are from the branch of Choti Barai, one of the two sons of Gainu Barai, and the defendants are from the branch of Jhoti Barai the another son of Gainu Barai. The plaintiffs claim that the properties are coming in joint possession even though there has been separation in mess between the two branches. The defendants came out with the case that there is no unity of title and possession between the parties as alleged by the plaintiffs and the properties are in their separate possession according to their share after the partition by metes and bounds. The trial court decreed the suit on the basis of the principle that there is presumption of jointness in Hindu family governed by the Mitakshara school of Hindu Law and as that presumption could not be rebutted by the defendants, the plaintiffs were held to be entitled to the half share in the suit. On the issue of non-joinder of necessary party, the trial court held that Thakur Patna High Court SA No.377 of 2008 (10) dt.08-01-2013 3 Modi, who was admittedly a co-sharer with the plaintiffs and had transferred his share in favour of the plaintiffs, was not a necessary party. The appellate court, on reappraisal of evidence, has come to the finding that the plaintiffs as well as defendants are removed upto 4th and 5th generation from the common ancestor and the presumption of jointness is almost nil in such a circumstance. The appellate court has further found separation in mess, residence and inter se transaction as well family arrangement in the branch of the plaintiffs and arrived to the conclusion that there had been no joint status as claimed by the plaintiffs with regard to the suit properties. Mr. Jha, the learned counsel for the appellants has submitted that there is no proof of partition between the parties and in absence of direct and specific proof of partition, the appellate court below has committed illegality in holding that there has been partition in the family. It has been urged that the appellate court below has wrongly placed the burden upon the plaintiffs to prove jointness although the burden of proof of partition lies upon the defendants in view of the established presumption of jontness of a Hindu family. It has also been submitted by the learned counsel that the appellate court below has not properly appreciated the evidence of the parties and the Patna High Court SA No.377 of 2008 (10) dt.08-01-2013 4 slipshod manner in which the evidence has been discussed by the appellate court below cannot be accepted. After perusal of the judgments of both the courts below, it is manifest that the parties to the suit are the descendants of Gainu Barai. It further also appears that the parties to the suit are removed from the common ancestor by 4th and 5th generation. The trial court has decreed the suit mainly on the basis of the principle of presumption of jointness in Hindu family governed by Mitakshara school of Hindu Law. The appellate court below however has correctly held that the presumption of jointness recedes with the passing of the generation and it is strongest in the first generation but becomes almost nil in the 4th and 5th generation among cousins [See A.I.R. 1929 P.C. 8]. In view of the actual facts of the case, the plaintiffs and the defendants are 4th and 5th generation cousins and as such the presumption of jointness is not available to the plaintiffs, and if the plaintiffs have alleged jointness, the burden lies upon them to prove the said fact. Admittedly, one of the co-sharer, Thakur Modi has not been made party to the suit. The plaintiffs has claimed that Thakur Modi sold 18 dhurs of land to the plaintiffs by sale deed dated 05.09.1988 (Ext.2). The plaintiffs have also pleaded that in subsequent family arrangement the remaining 12 dhurs of the share of Thakur Modi also came to be acquired by the plaintiffs. Patna High Court SA No.377 of 2008 (10) dt.08-01-2013 5 These facts coupled with evidence of separate residence, mess possession are not in consonance with the joint status in the family as claimed by the plaintiffs. The perusal of the judgment by the trial court reveals that the suit has been decreed applying the wrong principles of law. The appellate court below has rightly set aside the judgment and decree of the trial court. The findings of the appellate court below are based on appreciation of pleadings and evidence and no perversity could be established in the same. For the aforesaid premised reasons, I do not find any substantial question of law arising for consideration in this appeal. It is, accordingly, dismissed. Devendra/- (V. Nath, J)